The Kent Corp.

National Labor Relations Board - Board Decisions

Oct 10, 1984

272 N.L.R.B. 735 (N.L.R.B. 1984)

KENT CORP 735
The Kent Corporation and The United Steel Work-
ers of America, AFL-CIO-CLC, Petitioner.
Case 10-RC-12787
10 October 1984
DECISION ON REVIEW AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND DENNIS
On 22 August 1983 the Regional Director for
Region 10 of the National Labor Relations Board
issued a Decision and Direction of Election in the
above-entitled proceeding in which he found that
the Party in Interest, Employees Association of
Kent Supermatic (the Association) was a defunct
labor organization and that the contract between
the Association and the Employer was not a bar to
the Petitioner's petition for a representation elec-
tion. Thereafter, in accordance with Section 102.67
of the Board's Rules and Regulations, the Employ-
er timely filed a request for review of the Regional
Director's decision alleging that the Regional Di-
rector failed to apply the appropriate test for deter-
mining the defunctness of a labor organization. The
Employer further contends that the Association is
not defunct within the meaning of Hershey Choco-
late Corp., 121 NLRB 901 (1958), and that the cur-
rent collective-bargaining agreement between it
and the Association should serve as a bar to the in-
stant election petition. The Petitioner filed a brief
on review in which it argues that the Board should
affirm the Regional Director's decision finding that
the Association is a defunct labor organization and
process the instant petition.
By telegraphic order dated 3 October 1983 the
Employer's request for review was granted.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the entire record in
this case with respect to the issue under review, in-
cluding the Employer's request for review and the
opposing brief, and makes the following findings.
In late 1979 employees of the Employer in a
non-Board election selected the Association as their
collective-bargaining representative.' Thereafter,
the negotiating committee of the Association met
with the Employer and a contract was ratified by
the employees effective until 31 December 1982. In
November 1982 the negotiating committee met
again with the Employer and negotiated a new
contract to be effective until 31 December 1985.
' Prior to this election, the International Brotherhood of Boilermakers,
Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO had been cer-
tified as the exclusive collective-bargaining representative of the Employ-
er's production and maintenance employees
This contract was signed by committee members
but never ratified by the employees.
Sam Mitchell became president of the Associa-
tion and James Goodwin became its vice president
in 1979. 2 Since that time there have been no elec-
tions for officers. Since the 1979 contract ratifica-
tion meeting, there have been no Association mem-
bership meetings, although it appears that at one
point at least one employee did approach an officer
about having an Association meeting. At no time
since its existence has the Association maintained a
treasury or a bank account. There are no books or
records of any kind in existence. There are no
members of the Association, no membership appli-
cations, and no initiation fees; no dues have been
collected.
Sometime in May 1983 Association President
Mitchell retired and no replacement was obtained.
Goodwin, the vice president, remains as the sole
Association officer. 3 Goodwin testified that he has
only limited knowledge of the collective-bargaining
agreement and that he does not know whether the
Employer paid the agreed-upon wage scale or
whether the agreement contained a grievance pro-
cedure. Since 1979 Goodwin has processed only
one employee grievance concerning seniority; how-
ever, the record establishes that at least one em-
ployee has not been paid the collectively bargained
wage rate.
The issue presented is whether the Association is
a defunct labor organization and its collective-bar-
gaining agreement with the Employer therefore not
a bar to the Petitioner's election petition. We dis-
agree with the Regional Director's resolution of
this issue and find that there is a contract bar to the
petition.
The Regional Director set forth the proper
standard for determining defunctness as stated in
Hershey Chocolate Corp., supra at 911:
[A] representative is defunct, and its contract
is not a bar, if it is unable or unwilling to rep-
resent the employees. However, mere tempo-
rary inability to function does not constitute
defunctness; nor is the loss of all members in
the unit the equivalent of defunctness if the
representative otherwise continues in existence
and is willing and able to represent the em-
ployees.
He failed, however, to apply this standard. Rather,
he relied primarily on two cases, International Har-
vester Co., 111 NLRB 276 (1955), and Arthur C.
2 There is no evidence concerning how these officers were selected for
their respective positions
3 Although not an officer, employee Robert Bishop remains a member
of the Association's negotiating committee
272 NLRB No. 115
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Harvey Co 110 NLRB 338 (1954) for the proposi
tion that a labor organization is defunct when the
members have voted to disband and after the vote
there have been no members no officers no dues-,
collected and no organizational activities Thus
the Regional Director found the Association was
defunct because there are no Association members
no membership applications no initiation fees no
dues no treasury no bank account no books or
records meetings or recent (if any) election of of
ficers and no information available to employees
regarding 1982 contract negotiations or attempts to
enforce the collective bargaining agreement
The Regional Director s reliance on International
Harvester and Arthur C Harvey is misplaced Those
cases were decided before the Hershey standard for
determining defunctness was established More
over they are factually distinguishable in that they
involved either employee votes to disband or
formal withdrawal or suspension of the employees
from their respective labor organizations While the
separate internal factors relied on by the Regional
Director may be considered in determining wheth
er a labor organization is able and willing to repre
sent employees (e g no members or dues) those
factors standing alone are not sufficient to warrant
a conclusion that an organization is defunct 4 Re
gardless of the relative inactivity of a labor orgam
zation the critical question is its willingness and
ability to represent employees 5
Applying the test of Hershey and its progeny to
the case before us it is clear that the Association is
not defunct Here the vice president of the Asso
ciation and a member of the negotiating committee
testified to their willingness to continue to repre
sent the employees to abide by the Association s
bylaws and to hold meetings collect dues handle
grievances and the like Further there is no evi
dence that the Association was called on and failed
to act on unit employees behalf In these circum
stances we cannot conclude that the Association is
defunct within the meaning of Hershey supra We
therefore find that the 1982-1985 collective bar
gaining agreement between the Employer and the
Association constitutes a contract bar necessitating
the dismissal of the Petitioner s election petition
ORDER
The petition is dismissed
See e g News Press Publishing Co 145 NLRB 803 (1964)
5 Pioneer Inn Associates 228 NLRB 1263 (1977) Road Materials Inc
193 NLRB 990 (1971)