Kearney & Trecker Corp.Download PDFNational Labor Relations Board - Board DecisionsAug 14, 195195 N.L.R.B. 1125 (N.L.R.B. 1951) Copy Citation KEARNEY & TRECKER CORPORATION 1125 study expediters , draftsmen , inspectors , nurses, engineers and "GI" trainees for such jobs , all employees in voting group ( a), guards, and supervisors as defined in the Act. If the employees in voting group (a) select the Blacksmiths, they will be taken to have indicated their desire to constitute a separate unit. [Text of Direction of Elections omitted from publication in this volume.] KEARNEY & TRECKER CORPORATION and LOCAL 1083, INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT & AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, C. I. 0., PETITIONER. Case No. 13-RC-1900. August 14,1951 Decision and Direction of Election Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Richard C. Swander, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.' Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel.2 [Chairman Herzog and Members Houston and Reynolds]. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain em- ployees of the Employer. 3. On July 2, 1950, the Employer and the E. I. U., which had been certified by the Board in 1945 as the bargaining representative of the Employer's production and maintenance employees,3 entered into a 2-year contract, with provision for automatic renewal, and for I At the hearing, the Employer and the Intervenor , Employees Independent Union, affiliated with Confederated Unions of America , herein called the E. I. U., made various motions to dismiss the proceeding because of ( 1) a contract bar, and (2) failure of the Petitioner , herein called Local 1083, to establish that there has been a bona fide schism in the contracting union. For the reasons set forth in paragraph 3, these motions are hereby denied The Employer and the E. I. U. also questioned the sufficiency of the Petitioner's showing of interest at the time of the hearing , and moved to dismiss the petition on that ground As a labor organization 's showing of interest is an administrative matter to be determined solely by the Board , the motion is denied . Lloyd A. Fry Roofing Company, 92 NLRB 1170 2 The Employer has requested oral argument . As the record and the briefs, in our opinion, adequately present the issues and the positions of the parties , this request is denied 8 Case No. 13-R-2673. 95 NLRB No. 138. 1126 DECISIONS-OF NATIONAL LABOR RELATIONS BOARD reopening on basic wage'rates after the first year. The Employer and the E. I. U. contend that this contract, as modified and extended by a supplemental agreement dated April 30, 1951, constitutes a bar to the present proceeding. Local 1083 contends, inter alia, that be- cause of a schism within the ranks of the certified bargaining repre- sentative, the contract is not a bar. The facts are in substance. as follows : On September 10, 1950, at a regular meeting of the E. I. U., at- tended by 41 of its 580 paid-up members,4 a motion to disaffiliate from Confederated Unions of :America, herein called the C. U. A., was made and carried. Shortly thereafter, the E. I. U. notified the C. U. A. of this action, returned its charter, and later sent to the C. U. A. the balance due it for the per capita membership tax through August 1950. On September 26, 1950, the E. I. U., by letter, suggested to the Employer that their contract be amended to provide for a 10-cent an hour increase in wages. Although the Employer, on October 24, denied this request, it met with the bargaining board of the E. I. U. on various occasions, beginning about October 1, to discuss proposals for amendments to the contract. On November 5, 1950, at a regular meeting of the E. I. U., attended by '85 members, a motion was made and carried by a vote of 42 to 24 that representatives of international unions be invited to speak to the membership on what they had to offer, and that special meetings be arranged for that purpose. Pursuant to this motion, a special meeting of the E. I. U,'was held on December 17, at which representa- tives of four international unions spoke. Flyers announcing the meeting and inviting all employees in the unit to attend were posted and distributed at the plant. On January 21, 1951, pursuant to a motion, adopted at a regular meeting on January-7, another special meeting was held, for the pur- pose of hearing representatives of the U. A. W.-CA. O. and the U. A. W.-A. F. L. and voting on the question of affiliation. Notices of the meeting and its purpose were posted and distributed to the employees. At the close of the meeting, a written ballot was taken on a motion to affiliate with another union. Of the 99 persons present at the time of the balloting 68 voted for the U. A. W.-C. I. 0.; 28.for the U. A. W.-A. F. L.; and 3 for the E. I. U. The officers of the E. I. U. thereupon applied for a charter from the U. A. W.-C. I. O. On March 4, the charter was received. The or- ganization thus formed was thereafter known as Local 1083 (the Petitioner herein). A majority of the officers of the E. I. U., includ- 4 The record shows that of the'41 persons present , 22 were either officers, bargaining board members , trustees , or stewards of the E. I. U. KEARNEY & TRECKER CORPORATION 1127 ing Elmer De Witte, its president, continued in the same offices in Local 1083, without any new general election .5 Although the Employer learned on January 26, through a news- paper.article, of the action taken by the E. I. U. at the January 21 meeting, it continued to meet with the bargaining board-the same individuals' with whom it had been negotiating since December 1950- until February 8. At a meeting on that date, however, it refused to grant a request of the Board to permit Walter Cappell, the interna- tional representative of the U. A. W.-C. I. 0., to participate in the negotiations. On February 26, Cappel, by letter, formally notified the Employer of the affiliation of the E. I. U. with the U. A. W.-C. I. O. and asked the Employer's reasons for refusing to permit representatives of the affiliate to participate in discussions on matters involving employee conditions. In reply, the Employer stated that the certified bargain- ing representative of the employees was the E. I. U., affiliated with the C. U. A.; that the existing labor contract was with that representative; that Cappel's letter failed to disclose any factual basis upon which he presumed to establish a status as speaking for"the collective'bargain- ing representatives of- the employees; and that, in the absence of a legally factual basis supporting his position, the Employer would not recognize any representative statics on his part. Copies of this cor- respondence were sent by the Employer to the employees. Within a few days after March 4, when Local 1083 received its char- ter, the officers of that organization changed the lock on the door of the office previously occupied by the E. I. U., kept possession of the E. I. U. records, and transferred the assets of the E. I. U., including its bank account, to Local 1083. At about the same time, Clarence Erick- son, a member of the E.' I. U., filed suit against these officers,. asking for, an injunction restraining them from affiliating the E. I. U. with the C. I. 0., and from transferring any of its past or future assets to the C. I. O. The Employer was notified, through an attorney, of this action, and was asked to refrain from turning over,any checkoff funds to any C. I. O. organization.6 On March 9, the Employer wrote De Witte that, although it was willing and desirous of meeting with the bargaining board of the E. I. U. as the bargaining representative of its employees under the 5 During February and March , one of the three members of the executive board and two of the three members of the board of trustees resigned, and on April 8 another member of the executive board was removed from office by vote of the membership . In addition, Theodore Behling, who had been recording secretary of the E. I. U., resigned on March 4, but resumed office later in the month after Alois Hotzhauer , who had been appointed to take his place , resigned. e Beginning in December 1950, the Employer checked off dues of E. I. U. members who signed authorization cards, in accordance with a voluntary checkoff provision in the 1950 contract. 1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1950 contract, it was confronted with conflicting claims on the part of the U. A. W.-C. I. 0., the C. U. A., and members of the "Inde- pendent Union," as to the union with which the E. I. U. was then legally affiliated. It further stated that until it had factual and legal information or a decision of the proper tribunal as to what the situa- tion really was, it was advised that it was not in a position to meet and bargain as theretofore, and .expressed the hope that the parties which were making conflicting claims would have the matter resolved at the earliest possible moment.. . On the same day, March 9, Local 1083 petitioned the Board to amend its certification in Case No. 13-R-2673 to change the name of the bar- gaining representative to "Kearney & Trecker Employees Union Local 1083 UAW-CIO," alleging that the E. I. U., the certified representa- tive, had disaffiliated from the C. U. A., changed its name, and affiliated with the U. A. W.-C. I. O. Copy of the petition was sent to the Em- ployer, which, on March 16, filed an answer opposing the request. On March 11 and 18, a number of employees who were opposed to the change in affiliation of the E. I. U. met with Arthur Sorensen, president of the C. U. A., to discuss the situation. At the March 11 meeting, at Sorensen's suggestion, a temporary bargaining board was appointed to represent the E. I. U. in bargaining with the Employer. At the March 18 meeting, a motion was passed to recall all "disloyal officers" of the E. I. U. (the individuals then functioning as officers of Local 1083), and temporary officers were. elected to take their places. On March 19, an attorney, on behalf of this group, wrote the Employer, informing it that an election meeting of the E. I. U. affiliated with the C. U. A. had been held, and giving the names of the temporary officers. Since that time, permanent officers, two of whom had been officers of the old E. I. U., have been elected, and the original charter granted to the E. I. U. by the C. U. A. has been returned to their. On March 22, the Board denied the petition of Local 1083 to amend the certification in Case No. 13-R-2673, "for the reason that over six years have elapsed since the issuance of the certification herein, but. without prejudice to the right to file a new petition for certification of representatives." On. April 4, Local 1083 filed its petition in the present proceeding. On March 30, and on several occasions during April, the Employer, notwithstanding its letter of March 9 to De Witte, held meetings with the new bargaining board of the E. I. U., continuing the negotiations which it had carried on with the old board until February.' As .a result of these negotiations, a supplemental agreement was executed 7 Since February , the old board , now serving as the bargaining board of Local 1083, has attempted, unsuccessfully, to arrange meetings with the Employer. KEARNEY & TRECKER CORPORATION 1129 on April 30,1951, modifying various provisions of the 1950 agreement, increasing wages subject to the approval of the Wage Stabilization Board, and extending the term of the 1950 agreement until July 2, 1954. The Employer thereupon applied to the Wage Stabilization Board for approval of the increased rates. Both the E. I. U. and Local 1083 have continued to hold regular membership hneetings,8,and each of them claims to represent over 1,000 of the Employer's 1,700 employees., At the time of the hearing, litigation was still pending in the local courts with respect to the rights of the rival unions to the property formerly belonging to the E. I. U. On the foregoing facts, it is clear that after the Employer entered into the 1950 contract with the E. I. U., there was a schism in that organization.1° As a consequence, there is such confusion in the bar- gaining relationship that the contract can no longer be said to promote stability in labor relations. Under these circumstances, the 1950 con- tract is not a bar to a present election.- The fact that the Employer has resumed bargaining relations with the new officials of the E. I. U., and has executed a supplemental agreement with that organization, does not, in our opinion, affect the situation .12 The Employer and the E. I. U. contend, however, that the petition should be dismissed because Local 1083 has not come before the Board with "clean hands." In support of this contention, the Em- ployer asserts, inter alia, that certain former officers and members of the bargaining board of the E. I. U. "secretly and surreptitiously conspired together to bring about a disaffiliation of the E. I. U. from the C. U. A. . . . [and] to affiliate' the E. I. U. with the C. U. A."; that they "consulted with and were being advised by UAW-CIO agents"; and that "the whole story is a story of faithless fiduciaries and misconduct." And the E. I. U. asserts, in substance, that the 8 The E. I. U. has had as many as 128 members present at its meetings ; Local 1083, as many as 244. o In each instance , the figure includes approximately 700 employees for whom the Em- ployer is checking o8 dues. Since March 1951 , when Local 1083 requested that the April dues be sent to it, the Employer has deposited the dues in a trust account. 10 We find no merit in the contention of the Employer and the E . 1. U. that there was no real schism because less than 30 percent of the membership of the E. I. U. participated in the action taken to bring about the change of affiliation, and because such action allegedly was not in accordance with the constitution and bylaws of the E. I. U. and the C. U. A. The Board has never held that proof of schism is dependent on the 'participation in the schismatic movement of any particular percentage of a union's membership. Nor is it material to the issue of representation to determine the legality of the procedure of disaffiliation . Radionic Controls , Inc., 91 NLRB 595. "Harrisburg Railways Company , 94 NLRB 127; Radionic Controls, Inc., supra; Boston Machine Works Company, 89 NLRB 59. u Contrary to the Employer 's apparent contention , the Board did not , by denying Local 1083 's petition to amend the 1945 certification of the E. I. U., decide which of the com- peting unions is the present bargaining representative . It merely held that , because of the lapse of time, the certification was not a bar to a new petition. 1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD entire procedure by which Local 1083 came.into existence was tainted by fraud . On the record before us , however, we find no convincing evidence to substantiate , these assertions. The E . I. U. further contends that it would be inequitable to hold an election while Local , 1083 is still holding funds belonging to the E. I. U. As noted above, however, the question of the ownership of - these funds is now pending before the courts. We are not convinced that an election should be delayed pending its determination. Accordingly , we find . that a question affecting commerce exists con- cerning the representation of employees of the Employer , within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. .4. The parties agree, and we find, that the following employees constitute a unit appropriate for the purposes of collective bargain- ing, within the meaning of Section 9 (b) of the Act: . All production and maintenance employees at the Employer's plant at West Allis, Wisconsin , excluding officers of the ' corpo- ration , department heads, time study men, foremen, assistant fore- men, office employees , safety men , students , pattern makers, pattern maker apprentices , professional employees , guards, and all supervisors as defined in the Act. [Text of Direction of Election omitted, from publication in this volume.] BURNUP & SIMS, INC. and INTERNATIONAL UNION OF OPERATING ENGI- NEERS, LOCAL 925, 925-A, 925-B, AND 925-C, AFL, PETITIONER. Case No. 10-RC-1009. August 15, 1951 Decision and Direction of Election Upon a petition duly filed, a hearing was held before- John C. Carey, Jr., hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.' 3 At the hearing the Employer moved to dismiss the petition on the following grounds:, (1) That the amended petition was filed without notice to the Employer , and the Employer was not aware of it in sufficient time properly to prepare for the hearing ; ( 2) no evidence of the Petitioner 's compliance with Section 9 (f), (g), and ( h) of the Act was adduced at the hearing , although the Employer requested that such evidence be furnished ; (3) the Petitioner 's International was not made a party to this proceeding , although the record indicates that the International would be required to approve any contract entered into by the Petitioner ; ( 4) the hearing officer , improperly and without authority to do so, revoked subpoenas issued at the Employer's request , ( a) for a union organizer, who procured authorization cards from the Employer 's employees , to receive his testimony as to the nature and extent of his authority to obtain , the cards, and whether he was licensed as an organizer under the Florida statute, and ( b) to the Petitioner 's representa- tive at the hearing requiring him to produce records of compliance with the filing 95 NLRB No. 150. - Copy with citationCopy as parenthetical citation