Kay & Burbank Co.

National Labor Relations Board - Board Decisions

Nov 24, 1950

92 N.L.R.B. 224 (N.L.R.B. 1950)

In the Matter of KAY & BURBANK COMPANY, EMPLOYER and TEAMSTERS
AUTOMOTIVE WORKERS, LOCAL UNION No. 495, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, 11TAREI1OUSEMEN AND
HELPERS OF AMERICA, AFL,1 PETITIONER
Case No. 21-UA-3179.-Decided November 24,1950
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed, a heating was held before Jack R. Berger,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and. are hereby affirmed.2
Upon the entire record in this case, the Board 3 finds :
1. The Employer is engaged in commerce within the meaning of the
National Labor Relations Act.
2. The labor organizations involved claim to represent certain
employees of the Employer.
3. The Petitioner is the exclusive bargaining representative of the
employees in the appropriate unit.
.The Petitioner alleges, and we find, that more than 30 percent of
the employees in the unit represented by the Petitioner desire to au-
thorize the Petitioner to make an agreement .with the Employer re-
quiring membership in the Petitioner as a condition of employment
in such unit.
The Alleged Contract Bar and the Alleged Question Concerning
Representation
Since about 1941 the Association has been the recognized bargaining
representative for the employees of the Employer. The most recent
agreement, executed by the Employer and the Association in May
1 Hereinafter referred to as Local 495.
2 At the hearing Kay & Burbank Employees Association , hereinafter referred to as
the Association, was permitted to intervene on the basis of an alleged contractual interest
in this proceeding.
The Employer ' s motion to dismiss the petition on the ground that a contract between
it and the Association is a bar to this proceeding is denied for reasons hereinafter stated.
3 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three-member panel
[Chairman Herzog-And Members Reynolds and Murd,)ck.]
92 NLRB No. 51.
224
KAY & BURBANK COMPANY 225
1950, was subsequently ratified by the membership of the Association
and became effective on June 1, 1950, for a period of 1 year. During
the course of negotiations with respect to that agreement, the Associa-
tion, at the request of the Employer, filed on May 24, 1950, a petition
for certification, in Case No. 21-RC-1334 4 At the following consent
election conducted on July 28, 1950, Local 495, the Intervenor in that
case, won the election, and was certified on August 7, 1950, as the
exclusive bargaining representative of all employees of the Employer
at its two Los Angeles locations, excluding salesmen, confidential em-
ployees, guards and watchmen, and supervisors as defined in the Act.
Since the election, the Employer, because of the contract with the
Association, has refused to recognize Local 495 as the bargaining
representative of its employees,5 contending that that contract is a
bar to this election.6
We find no merit in this contention. The Board has held that the
existence of a bargaining agreement does not determine whether or
not a union-shop authorization election should be conducted.' In.
such a proceeding the only prerequisites are: (1) That the labor or-
ganization shall have presented evidence that at least 30 percent of the.
employees within the unit desire such labor organization to negotiate
and execute a union-shop contract, and (2) that no question of repre-
sentation shall exist.8 Although a refusal by an employer to recog-
nize a petitioner will ordinarily raise a question concerning repre-
sentation, such a question may not, under normal circumstances, be
raised within the certification year." Accordingly, we find that the
contract between the Employer and the Association is not a bar to.
this proceeding; and that because a year has not elapsed since the
certification of Local 495 as the bargaining representative of the em-
ployees in the appropriate unit, no question affecting commerce exists.
concerning the representation of the employees involved in the pres-
ent proceeding.
In view of the foregoing; we find that the requirements for a union
shop authorization election, set forth in Section 9 (e) of the Act, have
been met.
The record does not show clearly whether the contract was executed before or after
the filing of the petition in Case No. 21 -RC-1334 . In any event neither of the contracting
parties urged the contract as a bar to that proceeding.
5 Although the Employer does not currently recognize the Teamsters as the bargaining
representative , no unfair labor practice charges have been filed by the Teamsters.
6In view of our finding herein, we find it unnecessary to pass upon Local 495's alterna-
tive contention that the Association is a defunct labor organization.
Utah Wholesale Groeery Co., 79 NLRB 1435.
s See Section 9 :(e) of the Act.
Lift Trucks, Inc., 75 NLRB 998.
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The following employees of the Employer constitute a unit appro-
priate for the purposes of Section 9 (e) (1) of the Act:
All employees of the Employer employed at its two Los Angeles,
California, locations (1714 S. Hope Street, and 7300 Morrows Avenue)
excluding salesmen, confidential employees, guards and watchmen, and
supervisors as defined in the Act.
[Text of Direction of Election omitted from publication in this
volume.]