Kimco Auto Products, Inc.

National Labor Relations Board - Board Decisions

Jun 23, 1970

183 N.L.R.B. 993 (N.L.R.B. 1970)

KIMCO AUTO PRODUCTS, INC.
Kimco Auto Products , Inc.' and Local 19, Retail,
Wholesale2 and Department Store Union,
AFL-CIO, Petitioner . Case 26-RC-3678
June 23, 1970
DECISION AND ORDER
BY MEMBERS FANNING, MCCULLOCH, AND JENKINS
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Kenneth
D. Henderson of the National Labor Relations
Board. Thereafter, the Employer,3 the Petitioner,
and the Intervenor4 filed briefs.'
Pursuant to the provisions of Section 3(b) of the
Act, the Board has delegated its powers in connec-
tion with this case to a three-member panel.
The Hearing Officer's rulings made at the hearing
are free from prejudicial error and are hereby af-
firmed.
Upon the entire record in this case, the Board
finds:
1. The parties stipulated and we find that the
Employer is engaged in commerce within the mean-
ing of the Act, and it will effectuate the purposes of
the Act to assert jurisdiction herein.
2. The parties stipulated and we find that the
Petitioner and the Intervenor are labor organiza-
tions within the meaning of the Act and claim to
represent certain employees of the Employer.
3. We find that no question affecting commerce
exists concerning the representation of employees
of the Employer within the meaning of Section
9(c)(1) and Section 2(6) and (7) of the Act, for
the following reasons:
The Employer is engaged at Memphis, Tennes-
see, in the business of rebuilding automobile parts.
On or about October 28, 1969, the Petitioner
requested recognition as bargaining representative
for the employees in the requested unit. The Em-
ployer refused to grant recognition unless and until
the Petitioner was certified by the Board. On
January 9, 1970, the Petitioner filed the petition
herein , seeking an election in the following unit,
which the parties stipulated is appropriate and
which is substantially the same as the unit covered
by a current agreement between the Employer and
' The name of the Employer appears as amended at the hearing
= The name of the Petitioner appears as amended at the hearing.
As the Hearing Officer's report , the briefs, and the entire record in the
case adequately present the issues and the positions of the parties , the Em-
ployer's request for oral argument is denied
4 Local 19, Distributive Workers of America , affiliated with the National
Council of the Distributive Workers of America , was permitted to inter-
vene on the basis of its claim to be a party to the current collective -bargain-
993
Local 19, Retail , Wholesale and Department Store
Union , AFL-CIO:
All production and maintenance employees,
including shipping department employees and
over-the-road drivers employed at Employer's
plants located at 1520, 1540 , 1558, 1562,
1570 Texas , 1400 Riverside and 229 Industrial
Avenue, Memphis, Tennessee , and excluding
all office clerical employees , watchmen , guards
and supervisors as defined in the Act.
On September 30, 1965 , pursuant to a Stipula-
tion for Certification Upon Consent Election
Agreement ,6 Local 19, Retail , Wholesale & Depart-
ment Store Union , AFL-CIO-CLC, was certified
by the National Labor Relations Board as the
representative of the employees involved herein.
Thereafter , negotiations resulted in the execution
of a collective -bargaining agreement , and the cur-
rent agreement is effective from December 16,
1968, through December 16, 1971.
In March 1969, a meeting was held among
delegates from District 65, a division of RWDSU,7
and various locals , which Earl H. Fisher, who has
been president of Local 19 since 1963 , attended.
Fisher testified that at this meeting disaffiliation
from RWDSU was discussed and recommended to
the locals . The stated reasons for this action were:
the lack of (1) Negro membership on the Interna-
tional executive board, ( 2) autonomy within the
wholesale department of the International union,
and (3 ) a policy permitting the wholesale depart-
ment and local unions to cooperate with the United
Automobile Workers Union and the International
Brotherhood of Teamsters.
By letter dated April 21, 1969 , Local 19, RWD-
SU, notified the International of its intention to
commence disaffiliation proceedings within the lo-
cal. About the same time , the National Council of
Distributive Workers of America was organized,
and Fisher was elected vice president.
On June 12, 1969 , the membership of Local 19
voted to disaffiliate from the RWDSU . According
to Petitioner 's recording secretary , on September 8,
1969, approximately 150 members of Local 19 met
with an International representative of RWDSU, in-
cluding 70-100 employees of the Employer, and
elected temporary officers for the Petitioner
"because of the disaffiliation." Permanent officers
were elected at a meeting on October 15, 1969.
mg agreement The name of the Intervenor appears as amended at the
hearing
° The request of the AFL-CIO, by counsel's letter dated April 24, 1970,
for leave to submit its views on the issue presented in the present proceed-
ing is granted, and its views contained therein , and the Intervenor 's reply
thereto, have been considered
° Case 26-RC-2451.
Hereinafter referred to as the International or RWDSU
183 NLRB No. 109
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Approximately five of the seven officers were em-
ployed by the Employer. A "copy" of Local 19's
charter was given to the elected officers by the
RWDSU . No constitution or bylaws were adopted
at the meeting.
Also in September 1969, RWDSU instituted
proceedings in the Federal District Court for the
Western District of Tennessee against the Inter-
venor seeking to obtain an injunction restraining
the Intervenor from refusing to pay the per capita
tax due RWDSU for the months of March through
August 1969 . On October 13, 1969 , the district
court ordered that the per capita tax due the
RWDSU be placed in a special account pending the
determination of the suit , and permitted Local 19
to commence disaffiliation proceedings in ac-
cordance with the RWDSU constitution. On Oc-
tober 28, 1969, the court granted the Employer's
motion to intervene in the court proceeding and or-
dered the Employer to continue to collect the
union dues from its employees and pay them to
Local 19 and to recognize Local 19 shop stewards
appointed by Fisher . On November 7, 1969, the
court ordered Fisher , in his capacity as president of
Local 19, RWDSU, AFL-CIO, to act in compliance
with the constitution and bylaws of RWDSU and of
Local : 9; to dissolve his relationship with NCDWA,
notify the membership that he is not serving as an
officer of Local 19, DWA, or NCDWA; and to
reinstate suspended shop stewards . The court order
also outlined the procedure for a disaffiliation elec-
tion conducted , pursuant to the court order, on
November 20 and 21.
On December 19, 1969 , the court declared Local
19 to be disaffiliated from RWDSU and denied the
motion of RWDSU to declare the disaffiliation not
effective. The tally of ballots shows 384 votes were
cast for disaffiliation , 260 against , 5 ballots were
void , and 5 were challenged . There were approxi-
mately 1 , 100 members of Local 19 at the time of
the election and approximately 685 in the bargain-
ing unit involved . On January 21, 1970, Fisher, as
president of Local 19, petitioned the court for an
injunction to prohibit RWDSU from using the
designation Local 19 within the Intervenor's ju-
risdiction . As of the time of the hearing , no action
had been taken on this request.
Subsequent to the disaffiliation decree , the of-
ficers of Local 19, who had been reelected in April
1969, except for the secretary -treasurer who
declined to seek reelection, continued in office. In
addition , the approximately 10 to 15 job stewards
and stewardesses at the Employer's plant prior to
the disaffiliation have continued in their positons,
and the record shows they have continued to file
grievances on behalf of the employees of the Em-
ployer . Fisher testified that he has continued to
process grievances on behalf of these employees,
that there is an arbitration proceeding pending, and
that he has retained counsel to represent the Inter-
venor in that proceeding.
Employer 's Personnel Director John F . Wright
testified that he has had no written notice from any
party of any change in the grievance committee,
and that grievances have been filed since the disaf-
filiation proceedings . He stated , however , that he
has refused to process these grievances because he
does not know with which local he should deal.
Wright also testified that Murl Householder, an In-
ternational representative of RWDSU, informed
him that if the Employer dealt with the Intervenor
the Employer would be in violation of the contract
and would have an immediate work stoppage. The
record shows that , despite a hold harmless agree-
ment from the Intervenor , the Employer ceased re-
mitting employee membership dues to the Inter-
venor in January 1970, claiming it did not know
which local was entitled to them.
Fisher testified that the Intervenor administers
approximately 21 collective -bargaining agreements
in addition to the existing agreement with the Em-
ployer , no other party to these agreements has
questioned the Intervenor 's right to represent the
employees , and only the Employer has refused to
check off dues.
The record shows that the Intervenor has
retained the office location , as well as all books,
records , and assets of Local 19 . The constitution of
the RWDSU does not require reasons for disaffilia-
tion action and provides that a local 's books , funds,
contracts , and other property shall at all times
remain the exclusive property of the local. The
record also shows that the current agreement
between Local 19 and the Employer was signed by
local union representatives, including Fisher, but
was not signed by any RWDSU representative,
although an International representative did attend
some of the negotiation meetings . In this respect,
the International constitution provides that the
right to bargain collectively shall lie with the local
union and with the International Union or its
representative "when the local union so requests,"
and that , if ratified by a majority vote, the
negotiated contract shall be drafted and signed by
"proper officers of the local union and thereupon
it shall be binding upon all members in good stand-
ing."
On January 16, 1970 , the RWDSU picked up the
Intervenor 's local charter , and the record shows
that the Intervenor has affiliated with National
Council of Distributive Workers of America. New
members of Local 19, Distributive Workers of
KIMCO AUTO PRODUCTS, INC.
America, affiliated with NCDWA, sign a card
showing this affiliation. The Intervenor, however,
has not sought new checkoff authorizations. Fisher
testified that the Intervenor plans to change the
authorization card at the end of the contract term.
The Petitioner and the Employer take the posi-
tion that the existing contract is not a bar to an
election because a schism has occurred in the cer-
tified bargaining representative. The Intervenor as-
serts there is a contract bar and moved the petition
be dismissed. Both Petitioner and Intervenor claim
to be the collective-bargaining representative party
to the contract.
In the Hershey Chocolate Corporation case,8 the
Board determined that a schism exists in a contract-
ing union which removes the contract as a bar to an
election where (1) there is a basic intraunion con-
flict over policy at the highest level of an interna-
tional union or within a federation which results in
a disruption of existing intraunion relationships,
and (2) action is taken by the employees in the bar-
gaining unit arising out of the basic conflict which
creates such confusion in the bargaining relation-
ship that stability can be restored only by an elec-
tion. In Hershey9 the Board distinguished situations,
such as existed in the Prudential Insurance Com-
pany of America case,10 as not creating a schism
but, at most, a disaffiliation based on a disagree-
ment between an international and an individual
local which did not result in the confusion and in-
stability inherent in a true schismatic situation.
In Prudential, a dispute arose between the local
and the international during negotiations for a
master contract which resulted in the local's voting
to disaffiliate, to form a new union, and to assign its
contract to the new union. There, as here, the local
had been certified, had bargained for, and had ex-
ecuted the contract, and the international sought to
reestablish the local. After receiving conflicting
claims to representation, the employer held the
checked-off dues in escrow. Under these circum-
stances, the Board found "the attempt by the
minority group ... to repudiate the assignment and
breathe new life into the Local ... placed [the Lo-
8 121 NLRB 901
9 Supra at 911
10 106 NLRB 237 See also Clayton & Lambert Manufacturing Company,
128 NLRB 209, 211
1 ' Supra at 241
995
cal] in substantially the same position as that of any
rival union which seeks designation as representa-
tive of an Employer's employees at an inap-
propriate time.""
In the present case, no "new" organization
resulted from the disaffiliation action of the con-
tracting local and no "assignment" of the existing
agreement was effected. Thus, the local'12 which
alone executed the agreement, remained the same
subsequent to the disaffiliation decree. As stated
above, the same officers, with one exception, con-
tinued in office and the same job stewards and
stewardesses continued in their positions; and these
same individuals have continued to represent the
Employer's employees in administering the existing
agreement. There is no contention or evidence that
the contracting local is defunct.13 Moreover, as
stated above, that local has, pursuant to the
RWDSU constitution, retained the contracts,
books, records, funds, and other property. Thus, it
would appear that any alleged "confusion" which
may exist in the bargaining relationship could be at-
tributed to the action of the RWDSU subsequent to
the disaffiliation, rather than to any open split at
the highest level of the International and within the
certified local "followed by intensive campaigning
to secure the allegiance of the local union members
on the basis of the policy differences which were in-
itially responsible for the basic conflict."14
In these circumstances, and upon the entire
record in this case, we find the disaffiliation action
taken by the employees in the bargaining unit did
not create such confusion in the bargaining rela-
tionship as to remove the contract as a bar to an
election.
Accordingly, as the existing collective-bargaining
agreement, which will not expire until December
16, 1971, is otherwise a bar, we shall dismiss the
petition.
ORDER
It is hereby ordered that the petition filed herein
be, and it hereby is, dismissed.
'p Fisher executed the agreement on behalf of Local 19
"Crane and Breed Casket Company, 175 NLRB 206, Gate City Optical
Company, a Division of Cole National Corporation, 175 NLRB 1059
11 B & B Beer Distributing Company, Inc , 124 NLRB 1420, 1422
427-258 O-LT - 74 - 64