W. H. Nicholson and Co.

National Labor Relations Board - Board Decisions

Jan 28, 1958

119 N.L.R.B. 1412 (N.L.R.B. 1958)

1412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Regional Director's recommendation that the objection be
overruled.
Accordingly, as the Petitioner has failed to secure a majority of the
valid ballots cast, we shall certify the results of the election.
[The Board certified that a majority of the valid ballots was not
cast for International Union, United Automobile, Aircraft and Agri-
cultural Implement Workers of America, AFL-CIO, and that said
organization is not the exclusive representative of the Employer's
employees in the appropriate unit.]
W. H. Nicholson and Company' and International Brotherhood
of Boilermakers, Iron Ship Builders, Blacksmiths , Forgers
and Helpers, AFL-CIO, Petitioner. Case No. 4-RC-M3.
January 28,1958
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, hearings were held before Alan Zurlnick, hearing officer.
The hearing officer's iulings made at the hearings are free from prej-
udicial error and are hereby affirmed
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Leedom and Members Bean and Jenkins].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. W. H. Nicholson and Company Employees' Independent Union
was permitted to intervene at the hearing. Upon objection by the
Petitioner, which contended, as discussed below, that that organization
no longer existed, the hearing officer permitted intervention alterna-
tively by Certain Individuals, Employees of W. H. Nicholson and
Company? The labor organizations involved claim to represent
certain employees of the Employer.
3. The Employer and the Intervenor contend that their current
contract, which will expire in November 1958, bars this petition. The
Petitioner contends that the contract is not a bar because the Inter-
venor is defunct.
i The name of the Employer appears as amended at the hearing
2As it appeals that neither of these intervening organizations is in compliance with the-
provisions of Section 9 (f), (g), and (h) of the Act, Member Senkins, for the reasons:
expressed in his dissenting opinion in West Vsrgsnia Pulp and Paper Company, 118 NLRB.
1595, would not allow them to intervene
119 NLRB No 176
W. H. NICHOLSON AND COMPANY 1413
The Intervenor, an independent union, has represented the employees
here involved for several years, and was certified by the Board in 1956.
Sometime in the spring of 1957 several members of the Intervenor
first contacted the Petitioner, and in August 1957 a petition was cir-
culated among the employees, requesting that a meeting be called to
consider the dissolution of the Intervenor and affiliation with the Peti-
tioner. These petitions contained the number of signatures required
under the Intervenor's bylaws, were submitted to the president, and a
meeting was called for August 11, 1957. The notices for the meeting,
addressed to employees of the Employer, specified clearly that the
purpose of the meeting was to consider the dissolution of the Inter-
venor and affiliation with the Petitioner. Membership meetings were
generally attended by 25-30 employees; this meeting was attended
by about 80 employees of the then complement of about 250 employees.
After some discussion Graham, a representative of the Petitioner, was
called in and delivered a short speech, setting forth the advantages
of affiliation with the Petitioner. He also answered questions from
the floor. Among these was one as to who would be officers of the ne'v
organization. He answered that the current officers would automat-
ically continue until a charter would be granted, at which time the
employees could do what they chose. Graham then left the hall and
votes to dissolve the Intervenor carried by 67-15, and to affiliate with
the Petitioner by 70-10. It is not suggested that any of this conduct
was not in accordance with the Intervenor's bylaws.
The Employer was shortly thereafter informed of this action of
the employees, and a meeting with representatives of the Employer
and Petitioner was held on August 27, 1957, wherein the Petitioner
sought recognition. At this meeting the Employer indicated that it
did not object to granting recognition to the Petitioner if it were
satisfied in certain respects. As to any processing of grievances that
might arise, the Employer's position was that it would recognize
those presenting grievances as representatives of neither union, but
simply of the men. Thereafter, however, the Employer posted notices
informing the employees that the Intervenor was their certified repre-
sentative which under the Act it was compelled to recognize, and that
it would continue to do so until instructed differently by the Board.
On or about October 15, 1957, a group of 11 employees sent the
Employer a letter stating that they had met on October 13 to select
temporary officers of the Intervenor to replace those who had violated
their oaths of office, and to repudiate the attempted dissolution of the
Intervenor on August 11.
As of November 18, the date of the continued hearing, all (including
all officers of the Intervenor) but 11 employees had signed applications
for membership in the Petitioner and paid the fee required, therewith.
1414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, the Petitioner has not yet acted on those applications or
chartered a local to represent the employees.
There is substantially no dispute as to the facts to this point. The
real issues arise from the effect to be given to events occurring after
August 11. These include : (1) The continued functioning of the same
officers after August 11; (2) the Petitioner's failure to act on the
membership applications submitted ; (3) the alleged processing of
grievances by the Intervenor; (4) the payment of $20 to the Inter-
venor's president, from its treasury ; (5) the appointment of a griev-
ance committee. For the reasons set forth below we do not believe
that any of these factors establish the continued existence of the
Intervenor.
All these are matters of form without any true substance. Where
the Board has previously refused to find defunctness, it has pointed
to the continued activity by the allegedly defunct organization after
its end, and while another organization is also purporting to function.3
Here, the Employer and Intervenor are attempting to evade a finding .
of defunctness by contending, essentially, that the Petitioner is the
Intervenor. We do not believe this bootstrap argument can prevail.
The record establishes beyond doubt that after August 11 the em-
ployees deemed themselves members of the Petitioner, meetings held
after that date were paid for by the Petitioner, and any ambiguities
that may exist are due entirely to the Employer's own position. Thus,
in the processing of grievances, the representatives of the employees
would not concede that they were representing the Intervenor, despite
the Employer's efforts to obtain such an admission.
The fact that the Intervenor's officers were retained does not establish
its continued existence, as the employees had been advised that they
could be retained under the Petitioner's rules, pending the establish-
ment of their own local. Nor do we believe that the payment of $20
to the Intervenor's former president, from the Intervenor's treasury,
after the purported dissolution, establishes existence of the Intervenor
at that time. Nothing in the record controverts the Petitioner's
assertion that this payment was for expenses incurred before the
dissolution.4 Moreover, the Board has found a union to be defunct
even though its funds were used, after a dissolution, to pay for a new
charter.'
In sum then, the record indicates this : the employees took all the
action possible to them to dissolve an organization that no longer
satisfied them. Their new organization has functioned in the. cus-
tomary manner of labor organizations, it has held meetings, solicited
3 See, for example , Muskin Mfg . Co., Inc., 114 NLRB 1307.
4 In accordance with its constitution and bylaws , the Intervenor has distributed its
treasury funds among those who were members at the time of dissolution.
5 Wales-Strip pit Corporation, 110 NLRB 951.
UNITED STATES GYPSUM COMPANY 1415
members, and to the extent possible, it has adjusted grievances. On
the other hand, there is no showing of any activity by the Intervenor.
Although the record contains the October 15 letter indicating a pur-
ported revival of the Intervenor, and it was purportedly represented
at this hearing, it does not appear to have engaged in any activity, nor
did any member of it testify herein. There is no evidence on this rec-
ord that the Intervenor is ready, willing, or able to administer the
contract. Instead, the Employer has dealt with the dissident group,
which numbers all former officers of the Intervenor and almost all
the employees, but has attempted to treat this group as if it were the
old organization. We do not think that this attempt to perpetuate
this old organization as an entity establishes it to be a functioning
labor organization. Upon the entire record, we are satisfied that no
stabilizing purpose would be served by finding the contract a bar. We
find that the contract between the Intervenor and the Employer does
not bar an election herein and that a question affecting commerce exists
concerning the representation of employees of the Employer within
the meaning of Section 9 (b) of the Act.
4. In accordance with the stipulation of the parties, we find that
the following employees of the Employer at its Wilkes-Barre,
Pennsylvania, plants, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9 (b) of the
Act :
All production and maintenance employees, excluding office clerical
employees, guards, watchmen, professional employees, and super-
visors as defined in the Act.
[Text of Direction of Election omitted from publication.]
United States Gypsum Company, Petitioner and United Stone
and Allied Products Workers of America , AFL-CIO, and
Its Local 178 .1 Case No. 8-RM-170. January 28, 1958
DECISION AND DIRECTION OF ELECTIONS
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before John Vincek, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Leedom and Members Bean and Jenkins].
I The name of the Union appears as corrected at the hearing.
119 NLRB No. 178.