Luckenbach Steamship Co., Inc.

National Labor Relations Board - Board Decisions

Feb 25, 1953

103 N.L.R.B. 1 (N.L.R.B. 1953)

LUCHENBACS STEAMS$IP COMPANY, INC. and LocAI. 253, DISTRIBUTIVE,
PROCESSING AND OFFICE WORKERS of AMERICA, PETITIONER. Ca8e
No. 21-RC--$575. February 25, 1953
Second Supplemental Decision and Certification of
Representatives
On September 30, 1952, the Board issued a Supplemental Decision
and Direction herein 1 in which it overruled the challenges to 3 ballots
and directed the Regional Director to open and count the 3 ballots
and prepare and serve upon the parties a supplemental tally of
ballots. The revised tally shows that there were 5 ballots cast for,,
and 4 against, the Petitioner.
On October 13, 1952, the Employer protested to the Board the
counting of the challenged ballots and any further processing of this
case; it requested a new election on the grounds, inter alia, that the
Board lacked jurisdiction because the officers of the Petitioner had
not complied with Section 9 (h) of the Act, and that the status of
Bernard Lusher,2 as a de facto officer of the Petitioner who had not
complied, must first be investigated.8
On October 27, 1952, the Employer filed, in addition to the above,
a motion to dismiss this proceeding alleging that each officer of both
the Petitioner and its International Union have not complied with
the provisions of Section 9 (f), (g), and particularly (h) of the
Act; that at all times since on or about October 1950, the Petitioner
and its International Union and the officers of such labor organiza-
tions, for the purpose of evading and circumventing the provisions
of Section 9 (f), (g), and particularly (h) of the Act, entered into a
conspiracy wherein it was agreed that these Unions would have, in
1 100 NLRB 1301. The Board previously delegated its powers with respect to this case
to a three-member panel. In view of the nature of the compliance question which has
subsequently arisen , we deem it advisable for the full Board to consider the issue . Accord-
ingly , the delegation of powers has been revoked.
2 Bernard Lusher is classified as an organizer for the Petitioner.
In addition the Employer contends that ( 1) a majority of employees eligible to vote
in the election repudiated the Petitioner after the election and desire a new election ; and
(2) the ballot cast by Patricia Di Leva and counted by the Board is invalid , because of the
resignation of Di Leva before the final tally of ballots . We find no merit in these argu-
ments . As to ( 1), we have heretofore held that to reexamine the results of a valid elec-
tion , on the ground that the union lost its majority after the election but before certifica-
tion , would not only tend to destroy the element of finality in elections but would cause
chaos in the administration of the Act . George Sexton, an individual, d/b/a Sexton Weld-
ing Company, 100 NLRB 344 . As to (2), inasmuch as Di Leva was an employee at the
time of the election , her vote was properly counted.
103 NLRB No. 1.
1
2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lieu of de jure appointed or elected officers, de facto officers,4 which
officers would not comply with the provisions of Section 9 (h).5
Although there is no merit to the Petitioner's contention that the
compliance question is untimely raised,6 we are nevertheless persuaded
that the Employer's request for a further investigation of compliance
and its motion to dismiss should be denied.
The Board has provided in its Rules and Regulations, Sec. 102.13
(b) (3) :
The term "officer" ... shall mean any person occupying a po-
sition identified as an office in the constitution of the labor or-
ganization; except, however, that where the Board has reasonable
cause to believe that a labor organization has omitted from its
constitution the designation of any position as an office for the
purpose of evading or circumventing the filing requirements of
section 9 (h) of the act, the Board may, upon appropriate notice,
conduct an investigation to determine the facts in that regard,
and where the facts appear to warrant such action the Board
may require affidavits from persons other than incumbents of po-
sitions identified by the constitution as offices before the labor
organization will be recognized as having complied with section
9 (h) of the act.
As to those persons who are in fact identified as officers in the con-
stitution of a labor organization, it is well settled that compliance by
them is an administrative matter which is not litigable by the
parties.' We are administratively satisfied that there has been such
compliance in this case. Turning to those allegedly omitted from
such designations for the purpose of evading or circumventing the
filing requirements, the Employer alleges generally that there are de
facto officers in the International and the Local Union; it points
specifically only to Lusher, the organizer of the local, and to the fact
that Lusher filed a charge in Case No. 21-CA-1524 alleging certain
illegal conduct on the part of the Employer. The Board has care-
fully considered the foregoing information furnished by the Em-
ployer, as well as the bylaws of the Petitioner and the constitution
and bylaws of its International and the entire record before us, and
is persuaded that the information provided is insufficient to support
the Employer's contentions or to warrant a further investigation of
4 As shown above, the Employer contends that Bernard Lusher is such a de facto
"officer" of the Petitioner.
° In addition, the Employer applied for the issuance of subpenas in order to take deposi-
tions of certain international and local union officers , and to inspect international and
local union documents such as constitutions, bylaws, minutes, records of meetings, books
of account, and letters relating to the employment of Bernard Lusher. For reasons set
forth herein with respect to the motion to dismiss , we hereby deny the Employer 's request.
"Rite-Form Corset Company, Inc., 75 NLRB 174.
7 American Cable ct Radio Corporation, 101 NLRB 1759.
THE GRUEN WATCH COMPANY 3
the compliance question. We therefore shall deny the Employer's
motion to dismiss.
As the Petitioner has secured a majority of the votes cast, we shall
certify it as the bargaining representative of the employees in the
appropriate unit.
Certification of Representatives
IT Is HEREBY CERTIFIED that Local 253, Distributive, Processing and
Office Workers of America, has been designated and selected by a
majority of the employees in the unit found appropriate in the de-
cision and direction of election herein, as the representative for the
purposes of collective bargaining and that, pursuant to Section 9 (a)
of the Act, as amended, the said organization is the exclusive repre-
sentative of all the employees in such unit for the purposes of col-
lective bargaining with respect to rates of pay, wages, hours of em-
ployment, and other conditions of employment.
MEMBER STYLES took no part in the consideration of the above
Second Supplemental Decision and Certification of Representatives.
THE GRUEN WATCH COMPANY, THE GRUEN NATIONAL WATCH CASE
COMPANY and INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL,
PETITIONER and INTERNATIONAL UNION, UNITED AUTOMOBILE, AIR-
CRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW-
CIO, PETITIONER and METAL POLISHERS, BUFFERS, PLATERS AND
HELPERS INTERNATIONAL UNION, A. F. OF L., LOCAL No. 68. Cases
Nos. 9-RC-1445 and 9-RC-1359. February 25,1953
Decision and Order
Pursuant to a stipulation for certification upon consent election,
entered into on January 2, 1952, between the Employer, International
Union, United Automobile, Aircraft and Agricultural Implement
Workers of America, UAW-CIO, herein called UAW-CIO ; Inter-
national Association of Machinists, AFL, herein called Machinists,
and Metal Polishers, Buffers, Platers and Helpers International
Union, A. F. of L., Local No. 68, herein called Metal Polishers, an
election by secret ballot was conducted on February 1, 1952, under
the direction and supervision of the Regional Director for the Ninth
Region. At the close of the election, tallies of ballots for the three
stipulated voting units were furnished the parties. The tallies
showed the following results :
103 NLRB No. 27.