Wahiawa Transport System, Inc.

National Labor Relations Board - Board Decisions

Jun 23, 1970

183 N.L.R.B. 991 (N.L.R.B. 1970)

WAHIAWA TRANSPORT SYSTEM, INC.
Wahiawa Transport System , Inc. and Norman
Lacerdo, et al. and Wahiawa Transit Independent
Union. Case 37-RD-63
June 23, 1970
DECISION AND DIRECTION OF ELECTION
BY MEMBERS FANNING, MCCULLOCH, AND BROWN
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Dennis R.
MacCarthy. Following the close of the hearing and
pursuant to Section 102.67 of the National Labor
Relations Board Rules and Regulations, Series 8, as
amended, and by direction of the Regional Director
for Region 20, this case was transferred to the Na-
tional Labor Relations Board for decision. Briefs
have been filed by the Union and by the Inter-
venor.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional 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. The rulings are hereby
affirmed.
Upon the entire record in this case, including the
briefs filed by the Union and the Intervenor, 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. Wahiawa Transit Independent Union, herein
called the Union, claims to represent certain em-
ployees of the Employer. The Petitioners, em-
ployees of the Employer, assert that the Union, a
labor organization which has been previously
recognized by the Employer as the bargaining
representative of the employees involved herein, is
no longer such representative as defined in Section
9(a) of the Act.'
3. A question affecting commerce exists con-
cerning the representation of certain employees of
the Employer within the meaning of Section
9(c)(I) and Section 2(6) and (7) of the Act for the
following reasons:
' Hawaii Teamsters and Allied Workers, Local 996 , herein called the In-
tervenor , was permitted to intervene on the basis of a showing of interest.
2 We find no ment in the argument of the Intervenor , a labor organiza-
tion which has requested recognition and bargaining from the Employer,
991
Since 1962, the Employer has voluntarily recog-
nized and bargained with the Union as the collec-
tive-bargaining representative in a unit of full-time
and part-time busdrivers, which currently includes
approximately 60 such drivers. The most recent of
a series of collective-bargaining agreements
between the Union and the Employer expired by its
terms on July 16, 1969, although the Employer has
continued to give substantial effect to the terms of
the expired agreement since the date of its expira-
tion.
On July 22, 1969, during the course of negotia-
tions for a new contract between the Union and the
Employer, the Union held a meeting which was at-
tended by 18 of its then 47 members. The Union's
president, at that time Samuel Maikai, put a motion
to the members in which, in effect, he advised them
that a vote to reject the proffered contract was
equivalent to a vote to merge with the Intervenor,
and a vote to accept the contract was the
equivalent of a vote to remain an independent
union . The vote on the motion resulted in a tie, and
Maikai broke the tie by a vote to reject the contract
and merge with the Intervenor.
On the following day, July 23, 1969, the Em-
ployer received a letter from the Intervenor, advis-
ing that the Union had merged with the Intervenor
and requesting bargaining. On July 30, 1969, the
Employer recognized the Intervenor as the collec-
tive-bargaining representative of the employees in
the aforedescribed unit. In the interim, however, a
rift developed between those employees who
favored merger with the Intervenor and those op-
posed to the merger. On August 4, 1969, Norman
Lacerdo, one of the Petitioners herein, filed the in-
stant decertification petition, and on October 16,
1969, members of the Union met and elected
Lacerdo as its new president. Subsequently, new
trustees and a vice president were appointed. At all
times the Union has continued to collect dues and
initiation fees and to pay expenses.
On September 30, 1969, after learning of the
division among its employees and the filing of the
decertification petition, the Employer notified the
Intervenor that it declined to negotiate a new con-
tract pending determination by the Board of the
representation dispute.
The plain language of Section 9(c)(1) of the Act
requires us to reject the Intervenor's immediate
contention that a certification is a condition
that no question concerning representation exists either because the Union
has merged with the Intervenor or the Union is defunct . Campbell Soup
Company, 175 NLRB 452.
183 NLRB No. 106
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
precedent to the Board's power to direct a decer-
tification election.' We similarly reject the Inter-
venor's contention that, for purposes of this
proceeding, the Union has merged with the Inter-
venor and is defunct. There is insufficient evidence
in the record before us that advance notice was
given to eligible employees' that a vote would be
taken on a proposed merger with the Intervenor at
the meeting conducted by Maikai on July 22, 1969.
In fact, the record discloses that, at best, notice of
the meeting, and its purpose, was communicated
haphazardly by word-of-mouth. As we find that an
inadequate opportunity was afforded the members
to participate in the decision to merge the Union
with the Intervenor, the Intervenor's contention of
an effective merger is rejected.'
Nor does the evidence in the record persuade us
that the incumbent Union is defunct. At the time of
the defective attempt to merge with the Intervenor
a majority of the employees in the bargaining unit
were members of the Union, and the Union was ac-
tively engaged in negotiating a new collective-bar-
gaining agreement with the Employer. There is no
evidence that the Union is unwilling , or unable, to
3 Lee- Mark Metal Mfg Co , 85 NLRB 1299
' See North Electric Company , 165 NLRB 942
° Cf North Electric Co supra
e Moore Drop Forging Company, 168 NLRB 976.
Although this proceeding is formally before the Board on an employee
decertification petition , we have concluded that in order for the employees
to fully express themselves on the question of representation , and inasmuch
as the Intervenor has exhibited the requisite showing of interest , it is neces-
sary to conduct a certification election in which the employees will have
the opportunity of voting for the Independent , or the Intervenor. or
neither union
8 In order to assure that all eligible voters may have the opportunity to be
represent the employees in the bargaining unit, but,
on the contrary, the Union has elected new officers
and trustees and has continued to collect dues and
initiation fees and pay its expenses . Inasmuch as the
Union is a viable labor organization, willing and
able to represent the employees in the bargaining
unit, we reject the Intervenor's contention of
defunctness.6
As we have found that a question concerning
representation exists we shall direct an election? in
the following described unit, which substantially ac-
cords with the unit description in the expired con-
tract and conforms with the stipulation of the
parties:
All full-time and part- time bus drivers em-
ployed by Wahiawa Transport System, Inc.,
Honolulu , Hawaii, excluding office clerical em-
ployees, professional employees , guards and/or
watchmen , and supervisors , as defined in the
Act.
[Direction of Election8 omitted from publica-
tion. ]
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 ad-
dresses which may be used to communicate with them Excelsior Un-
derwear 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, con-
taining the names and addresses of all the eligible voters, must be filed by
the Employer with the Officer-in-Charge for Subregion 37 within 7 days of
the date of this Decision and Direction of Election The Officer-in-Charge
shall make the list available to all parties to the election No extension of
time to file this list shall be granted by the Officer-in-Charge except in ex-
traordinary circumstances Failure to comply with this requirement shall be
grounds for setting aside the election whenever proper objections are filed