Lloyd A. Fry Roofing Co.

National Labor Relations Board - Board Decisions

Jun 10, 1954

108 N.L.R.B. 1297 (N.L.R.B. 1954)

LLOYD A. FRY ROOFING COMPANY 1297
existing contract a bar. Accordingly, where the expulsion
of a labor organization from its parent has been followed
by disaffiliation at the local level for reasons related to
the expulsion, . . the Board will find that a schism exists
which warrants directing an immediate election notwith-
standing the existence of a contract with the union suffering
the schism which would otherwise bar a determination of
representative.
The facts in the present case, in my opinion, sufficiently meet
the new schism test. In October 1949, at the annual convention
of the CIO, the UE was expelled from the CIO because of alleged
communistic domination and objectionable political activities.
In November 1953, the membership of UE Local 429 formally
disaffiliated from the UE for reasons relating, inter alia, to
such political activities of the UE. Specifically, the record
shows that disaffiliation from the UE was voted by the union
membership, 316 to 48, at special meetings following due and
proper notice as to the purpose of the meeting; that the great
majority of officers and stewards of the former local joined
in the disaffiliation movement; that after the disaffiliation, a
new local was chartered by the IUE-CIO; and that the new local
notified the Employer of its claim to represent the employees,
resulting from the transfer of affiliation. That substantial con-
fusion now exists as to the identity of the employees' bargain-
ing representatives is evident. I would therefore find, on schism
grounds, that the contract is not a bar. to
Member Peterson concurring:
For the reasons stated by Member Murdock, I agree that the
contract in this case does not bar an immediate election.
to See A. C Lawrence Leather Co. and International Harvester Co., ibid.
LLOYD A. FRY ROOFING COMPANY and LOCAL 504, GEN-
ERAL WAREHOUSEMEN, SHIPPERS, PACKERS, RECEIV-
ERS, STOCKMEN, CHAUFFEURS AND HELPERS, INTER-
NATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF-
FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA,
A.F.L.,.Petitioner. Case No. 1-RC-3412. June 10, 1954
SUPPLEMENTAL DECISION AND CERTIFICATION OF
REPRESENTATIVES
On February 25, 1954, pursuant to a Decision and Direction
of Election of the National Labor Relations Board, I an election
by secret ballot was conducted under the direction and super-
1107 NLRB 1327.
339676 0 - 55 - 83
108 NLRB No. 178
1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vision of the Regional Director for the First Region among
the employees of the Employer in the unit found appropriate
by the Board. Upon the conclusion of the election, the parties
were furnished a tally of ballots. The tally showed that there
were 30 ballots cast, of which 16 were for the Petitioner, 11
were cast against the Petitioner, and 3 ballots were challenged.
On March 26, 1954, the Employer filed timely objections to
the election. After an investigation, the Regional Director,
on April 9, 1954, issued and duly served upon the parties his
report on objections, attached hereto. The Regional Director
found in his report that the Employer's objections lacked merit
and recommended that they be dismissed and that an appropriate
certification be issued by the Board. The Employer filed timely
exceptions to the Regional Director's report on objections.
The Board has considered the Regional Director's report
and the Employer's exceptions thereto, and hereby adopts the
findings and recommendations of the Regional Director. Accord-
ingly, as it appears that the Petitioner has secured a majority
of the valid votes cast in the election, we shall certify the
Petitioner as the bargaining representative of the employees
in the appropriate unit.
[The Board certified Local 504, General Warehousemen,
Shippers, Packers, Receivers, Stockmen, Chauffeurs, and
Helpers, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, A.F.L., as the des-
ignated collective-bargaining representative of the employees
of the Employer in the unit found appropriate.]
REPORT ON OBJECTIONS
Pursuant to a Decision and Direction of Election, dated February 25, 1954, the undersigned
conducted an election on March 24, 1954, among certain employees of the Employer. The
tally of ballots cast at said election is as follows:
Approximate number of eligible voters .............................................................. 31
Void ballots ................................................................................................. 0
Votes cast for Petitioner ........ .............. ................................................ 16
Votes cast against participating labor organization .............................................. 11
Valid votes counted ........................................................................................ 27
Challenged ballots ......................................................................................... 3
Valid votes counted plus challenged ballots ........................................................ 30
On March 26, 1954, the Employer filed timely objections to the election, copy of which was
duly served on the Petitioner. Said objections alleged the following:
1. Sometime after posting of the official notice of election on the wall of the scaler's booth,
that is, sometime after March 18, 1954, and sometime prior to the date of the holding of the
election, some person marked an "X" in the square captioned "YES" on the sample ballot
which is reproduced on the notice of election. The marking of the official posted notice of
election with an "X" in the box captioned "YES" created the impression that the National
Labor Relations Board endorsed the petitioning Union and rendered the said notice misleading
on its face and, therefore, improper. This implication was in no wise cured by the inclusion
of the word "sample" on the ballot reproduced in the posted notice of election.
2. The election in this proceeding was scheduled to take place on March 24, 1954, between
8 a. m. and 9 a. m. By reason of the late arrival of the field examiner, the actual election was
not begun until 8:10 a. m. on March 24, 1954.
QUAKER MARKETS, INC., THREE 1299
3. The president and secretary-treasurer of the petitioning Union, neither of whom is an
employee of the Employer, stationed themselves at the entrance gate leading to the Employer's
premises and from approximately 7 a. m. onMarch 24, 1954, to approximately the time of the
commencement of the balloting in this case, distributed to the employees, as they passed
through the Employer's gate , handbills and propaganda urging the employees to vote for the
Petitioner. .
(1) Investigation reveals that the Employer posted three official notices of election in
prominent places in the plant. One of these notices was defaced by person(s) unknown, such
defacement consisting of marking an "X" in the "YES" box in the sample ballot appearing
on the notice of election. On the afternoon of the day preceding the election, John O'Shea,
night superintendent, observed this defacement and on the morning of the election brought it to
the attention of other employer officials. No evidence was submitted or discovered that Em-
ployer madeanyattempts to remedy the situation when O'Shea observed or reported the deface-
ment. The Employer made no effort to contact the office of the undersigned concerning same or
make such known to the Board agent prior to the commencement of the election. No evidence
was submitted nor adduced to in any way indicate Petitioner was responsible for the deface-
ment. It is the conclusionoftheundersignedthat no merit attaches to this part of the objection.
(2) Investigation reveals that the polls opened approximately 10 minutes later than the
scheduled opening time, the Board agent having experienced difficulty in finding the plant.
No objection was made to the Board agent by Employer's representative to the belated
opening of the polls, nor was evidence submitted or adduced showing that any of the em-
ployees were disenfranchised because of this slight deviation from the scheduled hours of
voting. (Only 2 eligible employees failed to vote.) These 2 employees who did not vote were
confined to the hospital on the day of the election and did not appear at the polls to vote. No
claim is made that any employee was denied the right to vote, nor in any event could the
ballots of the 2 absent employees have affected the results of the election. It is the conclusion
of the undersigned that there is no merit to this part of the objection.
(3) Investigation reveals that representatives of Petitioner did distribute handbills at the
gate to Employer's plant from approximately 7 a. m. to approximately 8 a. m. on the morning
of the election. The plant gate is at least 300 feet from the polling place and no representative
of Petitioner was at or near the polling place during the voting hoursl;No allegation is made
that Petitioner's handbills were coercive in context. The undersigned concludes that Petitioner
did not transgress the electioneering rules of the Board 1 and that no merit attaches to this
part of the objection.
It is the recommendation of the undersigned that the objections dismissed in toto and that
Petitioner be certified as representative of the employees for purposes of collective bar-
gaining in the unit found appropriate.
'Linde Air Products Division, 94 NLRB 640.
QUAKER MARKETS, INC., THREE and AMALGAMATED
MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH
AMERICA, AMALGAMATED FOOD EMPLOYEES' UNION,
LOCAL 590, AFL
BARLETTA GROCERY COMPANY, INC., BARLETTA MAR-
KETS, INC., ONE, BARLETTA MARKETS, INC., TWO,
BARLETTA MARKETS, INC., THREE, AND QUAKER MAR-
KETS, INC., ONE, QUAKER MARKETS, INC., TWO, QUAKER
MARKETS, INC., THREE and AMALGAMATED MEAT CUT-
TERS AND BUTCHER WORKMEN OF NORTH AMERICA,
AMALGAMATED FOOD EMPLOYEES' UNION, LOCAL 590,
AFL. Cases Nos. 6-CA-733 and 6-CA-748. June 11, 1954
DECISION AND ORDER
On December 15, 1953, Trial Examiner Reeves R. Hilton
issued his Intermediate Report in the above-entitled proceed-
108 NLRB No. 180.