Marcalus Manufacturing Co., Inc.

In the Matter of MARCALUS MANUFACTURING Co., INC., EIIPLOVER and INTERNATIONAL BROTHERHOOD Or PAPER MAKERS, A. F. L., AND IN- TERNATIONAL BROTHERI-IOOD OF PULP, SULPHITE AND PAPER MILL WORKERS, A. F. L., PETITIONER Case No. 1-RC-1O& .Decided September 29, 1949 DECISION AND ORDER Upon a petition duly filed, a hearing was held before Joseph Lepie, 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 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 labor organizations involved claim to represent employees of the Employer. 3. No question affecting commerce exists concerning the repre- sentation of employees of the Employer within the meaning of Sec- tion (9) (c) 1 and Section 2 (6) and (7) of the Act, for the following reasons: Following a consent election on August 11, 1948, the Employer entered into a 2-year contract, effective August 31, 1948, with the Intervenor, Liberty Local, certified bargaining representative of em ployees at the Employer's pulp and paper manufacturing plant at Lincoln, New Hanipshire.z The Intervenor asserts that this contract is a bar to the instant proceeding initiated by the filing of a petition on June 23, 1949. The Petitioner asserts that there is no bar, be- cause (1) the contract was never ratified by the membership of ' The Petitioner moved to expunge the Intervenor's brief as not timely filed and contain- ing matter not introduced at the hearing , or, in the alternative that the Board give it no consideration . As the Intervenor 's brief was not timely filed we have not considered it in arriving at our decision. 2 Since May 18 , 1949 , the Employer 's business has been operated by a Trustee appointed by a U . S. District Court in a reorganization proceeding under Chapter 10 of the Bank- ruptcy Act. 86 N. L. R. B., No. 38. 315 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Liberty Local as required by its constitution, (2) the Trustee in Bankruptcy has refused to affirm the contract and has not complied with its terms, and (3) even if there were a contract the Intervenor is no longer a functioning labor organization capable of administer- ing it. The Employer takes no position on the issues, leaving their determination to the Board. Despite some conflict in testimony, there is evidence that the contract was submitted to the membership of Liberty Local and approved. Although the Trustee has not affirmed the contract, he has expressly refused to disavow it, and, in accord with his expresse intention, has complied with its terms to the extent that he has found it legally possible to do so within the limitations of the reorganization pro- cedure. Accordingly we find that there is an extant contract. The record offers some support to the Petitioner's contention of lack of activity on the part of Liberty Local. Its financial statement shows that there have been no receipts from clues, no monies have been ex- pended in behalf of the Local, no monthly books are maintained, and no record of membership has been kept. Furthermore, annual mem- bership meetings have not been held on the date prescribed by the Intervenor's constitution, and grievances of individual employees have seldom been processed by the Intervenor. However, such in- formal operations have been characteristic of the Intervenor since its inception and all of them were equally common before the consent election of August 11, 1948, at which the Intervenor decisively de- feated the Petitioner. There is no evidence that the Intervenor's activity has decreased since its certification on August 23, 1948. Al- though it has processed no individual grievances during this period, it has negotiated with the Employer and the Trustee.3 We find no merit in the Petitioner's contention that the Intervenor has become defunct or is otherwise incapable of functioning as a bar- gaining representative of the Employer's employees, notwithstanding the fact that there may be a number of employees who are dissatisfied with the representation accorded them by the Intervenor. We find, therefore, that the contract constitutes a bar to a present determina- tion of representatives 4 Accordingly, we shall dismiss the petition. ORDER It is hereby ordered that the petition herein be, and it hereby is, dismissed. 3The Employer has informally adjusted some individual grievances at the request of the Petitioner, but has not repudiated the Intervenor as sole bargaining representative. 4 Matter of White Brothers Smelting Corporation, 61 N. L. R . B. 340 ; Matter of Yellow Transit Company, 73 N. L. R. B. 424, footnote at page 426 ; Matter of L. 0: Koven and Brother, Inc., 77 N. L. R. B. 1253 , footnote at page 1255.