Roosevelt Memorial Park, Inc.,

National Labor Relations Board - Board Decisions

Dec 29, 1970

187 N.L.R.B. 517 (N.L.R.B. 1970)

ROOSEVELT MEMORIAL PARK, INC. 517
Roosevelt Memorial Park, Inc., and International filing of the petition on April 22, 1970, and therefore
Industrial Workers Union of America, Local No.
13, Petitioner . Case 4-RC-8650
December 29, 1970
DECISION AND DIRECTION OF
ELECTION
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On April 22, 1970, Petitioner filed a petition under
Section 9(c) of the National Labor Relations Act, as
amended, seeking to represent certain of the Employ-
er's employees. Thereafter, the Regional Director
administratively dismissed the petition on the ground
that a collective-bargaining agreement existed be-
tween the Employer and the Intervenor and that the
agreement constituted a bar to an election. The
Regional Director's dismissal of the petition subse-
quently was reversed on appeal to the Board which
reinstated the petition and directed the Regional
Director to issue a notice of hearing thereon.
Accordingly, a hearing was held before Hearing
Officer Gary H. Feinberg of the National Labor
Relations Board.
Following the hearing and pursuant to Section
102.67 of the National Labor Relations Board Rules
and Regulations and Statements of Procedure, Series
8, as amended, by direction of the Regional Director
for Region 4, the case was transferred to the Board for
decision. A brief was filed by the Petitioner.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They 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 Act, and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The labor organizations involved claim to
represent certain employees of the Employer.'
3. The Intervenor asserts that an oral collective-
bargaining contract, agreed upon in March 1969 and
put in written form and signed in December 1969, is a
bar to the petition herein. The Petitioner contends
that the Intervenor has failed to prove that the
contract, which was undated,2 was signed prior to the
cannot serve as a bar to an election.
The Intervenor adduced testimony from three
agents of the Intervenor and the representative of the
Employer who signed the contract to support its
position that the contract is a bar to an election. John
H. Daniels, president of the Intervenor, stated that he
signed the contract "it seems like to me it was this past
winter." Benjamin Irvin, Intervenor's business man-
ager, testified that he signed the contract "around the
15th of December" 1969. Martin Banks, business
manager for the Laborers' District Council, testified
that he "could not give any date." And Ray
Silverstein, the Employer's representative, asserted
that he signed the contract "in the early part of
December 1969." The Intervenor also introduced
evidence to show that the terms of the contract had
been complied with beginning in March 1969, after
the oral agreement had been concluded, and that the
employees had ratified the oral agreement shortly
thereafter.
The Petitioner's evidence consisted primarily of the
testimony of John Benedetto, Petitioner's business
manager. Prior to filing the petition in this case
Benedetto had served as a field representative for the
Intervenor. In that capacity he had dealt with the
Employer and had participated in the negotiations for
a new contract until February 1969. He testified that
he had never seen a copy of the contract, although
policing the terms of the agreement was one of his
duties, and further testified that, in conversations with
Silverstein after the filing of the petition, Silverstein
stated that the Employer had a "moral contract" with
the Intervenor which it intended to honor. Moreover,
Silverstein admitted that the Employer had withheld
payment of dues checked off from its employees' pay
from July 1969 to April 1970, and also conceded that
he had told Benedetto and others that the dues were
not remitted because there was no contract.
In rebuttal the Intervenor introduced evidence to
show that information regarding the contract was
deliberately withheld from Benedetto. And Silverstein
testified that the delay in sending the Union the
checked-off dues was occasioned by the necessity of
computing the amounts paid by each employee and
obtaining the signatures on the checks from the
owners who were located in Ohio.
It is well settled that the party or parties asserting
that a contract is a bar to an election bear the burden
of proof that the contract was fully executed, signed,
t Laborers ' District Council of Metropolitan Area of Philadelphia and bargaining contract with the Employer
Vicinity (Local 57), affiliate of Laborers ' International Union of North 2 The absence of a date is not in itself sufficient to vitiate the contract
America , AFL-CIO , intervened on the basis of an existing collective- as a bar Western Roto Engravers, Incorporated , 168 NLRB 986
187 NLRB No. 74
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and dated prior to the filing of the petition by the
Petitioner.3 We are not satisfied that this burden has
been met in this case . The contract is undated and the
testimony in support of Intervenor's contention that it
was executed prior to the demand for recognition and
the filing of the petition is vague, ambiguous, and
inconsistent with other testimony of the signatories,
the testimony of Petitioner's witnesses, and facts
admitted in the record. We therefore find that the
collective-bargaining contract relied upon by the
Intervenor is not a bar to an election. Accordingly, we
find that a question affecting commerce exists
concerning the representation of employees of the
3 Bo-Low Lamp Corporation , I I I NLRB 505, 508, Appalachian Shale
Products Co, 121 NLRB 1160
4 The intervenor did not state at the hearing whether or not it wished to
participate in an election It may appear on the ballot in the election herein
directed if it so indicates
S In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses which may be used to communicate with them Excelsior
Underwear Inc, 156 NLRB 1236; N L R B v Wyman -Gordon Co, 394 U S.
759 Accordingly, it is hereby directed that an election eligibility list,
containing the names and addresses of all the eligible voters, must be filed
Employer within the meaning of Sections 9(c)(1) and
2(6) and (7) of the Act.
4. The parties have stipulated, and we find, that
the following employees of the Employer constitute a
unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act:
All general laborers and operators of all mechani-
cal equipment and mechanics, excluding clerical,
sales personnel and supervisors as defined in the
Act.4
[Direction of election 5 6 omitted from publication.]
by the Employer with the Regional Director for Region 4 within 7 days of
the date of this Decision and Direction of Election . The Regional Director
shall make the list available to all parties to the election No extension of
time to file this list shall be granted by the Regional Director except in
extraordinary circumstances Failure to comply with this requirement shall
be grounds for setting aside the election whenever proper objections are
filed
6 As indicated in footnote 3, Laborers ' District Council of Metropolitan
Area of Philadelphia and Vicinity (Local 57), affiliate of Laborers'
International Union of North America, AFL-CIO, will appear on the
ballot only if that union so desires