Schaefer Body, Inc.

In the Matter of SCHAEFER BODY, INC., EMPLOYER and LOCAL 217,. INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT & AGRICUL- TURAL IMPLEMENT WORKERS OF AMERICA (CIO), PETITIONER Case No. 8-RC-367.-Decided July 14, 191 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing was held before Carroll L. Martin, a hearing officer of the National Labor Relations Board. The Tearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. At the hearing, Federal Labor Union No. 18671 (AFL), herein called the Intervenor, moved to dismiss the petition upon the grounds that (1) a contract currently in effect be- tween the Employer and the Intervenor is a bar to this proceeding, and (2) a prior decision of the Board 1 is determinative of the issues in this case. For the reasons given below, the motion is hereby denied. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Reynolds and Gray] 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 Petitioner and the Intervenor are labor organizations claim- ing to represent certain employees of the Employer. . 3. The Intervenor contends that a collective bargaining contract executed by it and the Employer on February 13, 1948, constitutes a bar to this proceeding, and further that the issues in this case are res jatdicata. The Petitioner asserts that the contract cannot be a bar . because (1) it contains an unlawful closed-shop clause, and (2) the Intervenor is defunct at the plant here involved. In the earlier case involving the same parties,' the Board held that the February 13, 1948, contract was a bar for a 2-year term and dis- 1 Matter of Schaefer Body, Inc., 78 N. L. R. B. 1247, decided August 20, 1948. 2 Bid. 85 N. L. R. B., No. 33. 195 857829-50-vol. 85-14 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD missed the present Petitioner's petition. However, at that time the Board had not enunciated its Hager case doctrine,3 that a collective bargaining contract containing an unlawful union-security provision is not a 'bar to a rival petition during the contract term. Conse- quently, no consideration was then given to the question of whether the 1948 contract contained an unlawful closed-shop or union-shop clause. That question is raised for the first time in this case. The contract which the Intervenor claims is a. bar contains a union- shop clause, but provides that the clause shall not become effective ,until after a union-shop authorization election shall have been held.4 Such a contract is clearly lawful. Accordingly, we find that the con- tract is a valid collective bargaining agreement for an indefinite term, which under other conditions would constitute a bar to a present deter- mination of representatives. The Intervenor is an amalgamated local whose membership includes some 300 employees of more than 30 employers with whom the•Inter- venor has contracts in the Cleveland area. The record shows that, although the Intervenor is an actively functioning bargaining agent in other plants, it is dormant in the plant involved in this proceeding. Its last act was the signing of the February 13, 1948, contract. It has never sought an election to authorize a union shop, as it agreed to do by the terms of the contract. For more than a year none of the em- ployees in the group has paid dues to the Intervenor. Virtually all of them became members of the Petitioner on or about February 10, 1948, 3 days before the contract was signed. At that time, the shop steward notified the Intervenor of his resignation both as a member and as shop steward. Since that time no other steward has been ap- pointed for the plant, nor has any shop committee existed. No griev- ances have been processed by the Intervenor; those that existed have been taken up directly with the Employer, or allowed to continue unad- justed.. Further, although the Intervenor's secretary-treasurer testi- fied that 21 of the employees in the unit are still carried on the Inter- .-enor's books as members of the Intervenor,' no attempt has been made since January 1948 to collect any dues, and no meetings have been held for the employees in the Employer's plant. Indeed, no notices of general meetings of the Intervenor's membership have been posted at the Employer's plant, or sent to any of the employees here involved. Matter of C. Hager & Sons Hinge Mfg . Co., 80 N. L. It. B . 163, decided November 5, 1948. No such election has been petitioned for or held. The testimony is uncontradicted that, in fact, none of the employees involved is now a member of the Intervenor. SCHAEFER BODY, INC. 197 On the basis of these facts, we find that the Intervenor is not a func- tioning bargaining agent at this Employer's plant.,, We therefore find that the contract entered into on February 13, 1948, does not con- stitute a bar to a present determination of representatives. The Intervenor contends, however, that in the earlier case, the Board decided that the Intervenor was not defunct, and that that decision is binding upon the Board in this case. We do not agree. The Board did not then pass upon the question of the Intervenor's defunctness. In that case the hearing was held only 3 months after the contract was signed. Three months was an insufficiently long period by which to measure defunctness. At the time of the present hearing, however, 14 months had elapsed, during which time the Intervenor permitted the continuation of conditions which 11 months earlier were, at most, only indications of possible defunctness. The facts are now wholly.dif- ferent. In these circumstances, we find that the earlier case does not make this issue res judicata. Accordingly, we find that a question affecting commerce exists con- cerning the representation of certain employees of the Employer within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 4. The following employees of the Employer constitute a unit ap- propriate for the purposes of collective bargaining within the mean- ing of Section 9 (b) of the Act: All production and maintenance employees at the Employer's Cleve- land, Ohio, plant, excluding clerical employees, guards, and super- visors as defined in the Act. DIRECTION OF ELECTION 7 As part of the investigation to ascertain representatives for the pur- poses of collective bargaining with the Employer, an election by secret ballot- shall be conducted as early as possible, but not later than 30 days from the date of this Direction, under the direction and super- vision of the Regional Director for the Region in which this case was heard, and subject to Sections 203.61 and 203.62 of National Labor Relations Board Rules and Regulations, among the employees in the unit found appropriate in paragraph numbered 4, above, who were employed during the pay-roll period immediately preceding the date of this Direction of Election, including employees who did not work Cf. Matter of Perfection Spring and Equipment Company, 72 N. L. R. B . 590; Matter of Memo Leather Goods Company, 52 N. L. R. B. 625 ; Matter of Morrison Steel Products, Inc., 50 N. L. R. B. 72. 7 Any participant in the election herein may, upon its prompt request to, and approval thereof by , the Regional Director , have its name removed from the ballot. 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD during said pay-roll period because they were ill or on vacation or temporarily laid off, but excluding those employees who have since quit or been discharged . for cause and have not been rehired or reinstated prior to the date of the election, and also excluding employees on strike who are not entitled to reinstatement, to determine whether they desire to be represented , for purposes of collective bargaining, by Local 217, international Union, United Automobile, Aircraft & Agricultural Implement Workers of America (CIO), or by Federal Labor Union No. 18671 (AFL), or by neither.