News-Press Publishing Co.

National Labor Relations Board - Board Decisions

Jan 3, 1964

145 N.L.R.B. 803 (N.L.R.B. 1964)

NEWS-PRESS PUBLISHING COMPANY 803
News-Press Publishing Company and American Newspaper
Guild , AFL-CIO, CLC, Petitioner. Case No. 21-RC-8454. Janu-
ary 3, 1964
DECISION AND ORDER
Upon a petition duly filed, a hearing was held before a Hearing
Officer of the National Labor Relations Board. The Hearing Officer's
rulings made at the hearing are free from prejudicial error and are
hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
2. The labor organization involved claims to represent employees
of the Employer.
3. No question affecting commerce exists concerning the representa-
tion 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 in the business of publishing a newspaper
in Santa Barbara, California. Since 1940, it has entered into suc-
cessive contracts with the Santa Barbara News-Press Editorial Em-
ployees Association, hereinafter called the Association, covering all
editorial department employees.' The latest contract was executed
June 24, 1963, to be effective from June 16, 1963, to June 15, 1964.
There was evidence in the record to show that for at least 61/2 years
before the hearing the Association did not handle any grievances but
rather permitted each employee to present his own grievance to the
Employer. However, it has negotiated various collective-bargaining
agreements and there is no evidence that it otherwise failed to func-
tion as a labor organization.
On July 3, 1963, the American Newspaper Guild, AFL-CIO, filed
a petition claiming to represent the editorial department employees.
On July 8, 1963, the chairman of the Association, an employee of the
Employer, at the request of some Association members, posted a
notice of a meeting to be held on July 11. There was no indication
what business would be transacted. Out of a total of 35 in the unit,
15 employees attended the July 11 meeting. At the meeting, the
following resolution was carried by a vote of 13-2:
We, the membership of the News-Press Editorial Employees
Association, do hereby move to dissolve and disestablish .. .
[the Association] ... as a labor organization, and do hereby
withdraw all authority from said association to act as a collective-
bargaining agent.
1 The record indicates that the Association has acted as collective,bargaining representa-
tive solely for the employees of this Employer.
145 NLRB No. 84.
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Present at the meeting was Robert Rissman, the attorney for the
Petitioner, who advised the Association members show they might
"remove the organization's labor aspects" by continuing it "merely as
a social group" and a "beer drinking society." 2
As the petition was filed more than 90 days before the expiration
date of the contract between the Employer and the Association, it
would be untimely unless we were to find, in accord with the Peti-
tioner's contention and contrary to the Employer's that the Associa-
tion has become defunct .3 The Board's test, in the absence of unusual
circumstances, for determining the defunctness of a labor organiza-
tion is whether ". . . it is unable or unwilling to represent the
employees." a
As to the Association's inability to represent the employees, the
record shows that it is still in existence, that its chairman continues
in office, that it has money in its treasury, and that it intends to
continue to operate as an organization, although not for collective-
bargaining purposes but as a social club. Nor is there anything in
the record to indicate that any of its members have resigned. Under
these circumstances, we find that the Association is not unable to
represent the employees, as it remains a functioning organization with
previous collective-bargaining experience, and that it could once again
assume such a role if it wished or were required to do so.
As to the Association's unwillingness to represent the employees, the
record shows that some of its members wanted the Association to
continue to exist but to cease acting as their collective-bargaining
representative, and, to this end, a meeting was called and the above
resolution was passed. Nevertheless, on the particular facts of this
case, we do not believe that the Association is in fact defunct or that
it will effectuate the policies of the Act to give effect to the resolution
purporting to terminate the Associations' s status as a labor organiza-
tion. In reaching this conclusion, we rely on all the circumstances
of this case, among them that (1) there was no real expression of the
views of the employees on the merits of the question whether the
Association should become defunct as indicated by the informal
manner in which notice of the meeting was given, the omission from
the notice of any statement of the purpose for which the meeting was
2 The Association was served with a notice of the Board's hearing, but did not appear.
Its chairman , however , was called as a witness by the Employer and testified to the facts
related above.
2 We agree with the Employer that there was no "schism" In the Association and that
the contract was not removed as a bar for that reason. The Board has found that a neces-
sary prerequisite to a schism is the existence of a "basic intraunion conflict," which it has
defined as "any conflict over policy at the highest level of an international union . . .
which results in a disruption of existing intraunion relationships ." Hershey Chocolate
Corporation, 121 NLRB 901, 907 . It is clear that no such conflict exists herein. See
Clayton & Lambert Manufacturing Company, 128 NLRB 209.
Hershey Chocolate Corporation, 121 NLRB 901, 911.
PACIFIC INTERMOUNTAIN EXPRESS CO. 805
called,' and the small proportion of employees who attended; s (2)
the Petitioner was instrumental in the efforts to terminate the Asso-
ciation's status as a labor organization; and (3) in voting to dissolve
the Association, the members who attended the meeting seem to have
been motivated by a desire to rid themselves of the recently executed
contract between the Association and the Employer. Accordingly,
we find that, for contract-bar purposes, the Association is not defunct.
As the petition was filed more than 90 days before the expiration
date of the current contract between the Employer and the Associa-
tion, we find that the contract is a bar to the petition, and we shall
therefore dismiss the petition.
[The Board dismissed the instant petition.]
Cf. Wm. Wolf Bakery, Inc., 122 NLRB 1163.
e In the somewhat analogous "schism" cases, the Board has given substantial weight to
such factors in deciding whether there had been a schism in the incumbent union and the
existing contract was therefore removed as a bar. Thus, in Hershey Chocolate Corpora-
tion, supra, at 908 , the Board stated:
[W]e must be convinced that the employees Involved have had an opportunity to
exercise their judgment on the merits of the conflict. We believe that this condition
can best be satisfied at an open meeting called , without regard to any constitutional
restrictions , but with due notice to the members in the unit, for the purpose of taking
disaffiliation action ... .
Pacific Intermountain Express Co . and Office Employees Inter-
national Union, Local 29, AFL-CIO, Petitioner. Case No.
f0-RC-3633. January 3, 1964
DECISION AND ORDER CLARIFYING CERTIFICATION
OF REPRESENTATIVE
On August 18, 1958, after an election conducted pursuant to an
agreement for consent election, the Regional Director for the Twen-
tieth Region issued a certification of representative in which he cer-
tified the Petitioner as the collective-bargaining representative for a
unit of the following employees :
All office clerical employees employed at the Employer's Oakland,
California, general office, excluding all other employees, profes-
sional employees, guards, and supervisors as defined in the Act.
On July 5, 1963, the Petitioner filed a motion for clarification of the
unit, alleging, in effect, that subsequent to its certification the Em-
ployer, Pacific Intermountain Express Co. (herein called PIE), ac-
quired control over the operation of National Carloading Corpora-
tion (herein called National), and that upon acquisition of the said
National Carloading Corporation transferred the office employees of
that company into the general office of PIE at Oakland, California,
145 NLRB No. 76.