Lewittes and Sons

r LEWITTES AND SONS Recommendations 775 Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in the case, the undersigned recommends that the com- plaint herein be dismissed. WILLIAM, BERTHA, MORRIS, FANNIE, DAVID, CHARLOTTE, SARAH, AND ISRAEL LEWITTES, COPARTNERS D/B/A LEWITTES AND SONS and UP- HOLSTERERS INTERNATIONAL UNION OF NORTH AMERICA, AFL, PETI- TIONER. Case No. 2-RC-506. October 11, 1951 Decision and Order Upon a petition duly, filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before I. L. Broadwin, hear- ing 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-mem- ber panel [Members Houston, Reynolds, and Styles]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved' claim to represent certain employees of the Employer. 3. No question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act', for the following reasons: The Employer and Local 78 contend that their current contract, which was executed November 16, 1950, and will expire August 1, 1952, constitutes a bar to this proceeding. The Petitioner argues that this contract was executed in disregard of the instructions of the then existing membership of Local 78, and that there has been a schism in Local 78. For these reasons it contends that the contract in ques- tion cannot operate as a bar. As to the contention that the contract was not validly executed, the record discloses the following pertinent facts : Negotiations which resulted in the execution of the current agree- ment between the Employer and Local 78 began early in September 1950. The bargaining conferences were held between the Employer ' Local 78, Furniture Worker's Union, CIO (hereinafter Local 75), was permitted to Intervene on the basis of a current contract with the Employer. 96 NLRB No. 109. 776 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD and a negotiating committee composed of employee representative from each department, the president and financial secretary of Local[ 78, and a representative of Local 78's International. These confer- ences were preceded and followed by private meetings of the nego- tiating committee at which the claims advanced by the representatives from each department were discussed. On or about November 10, 1950, at a general membership meeting of Local 78, the contract which had emerged from the various negotiating conferences and meetings. was read to the membership and approved by a majority vote. The record establishes that Charles Bell, who was then president of Local, 78, was instructed to execute the agreement, although there is also, some testimony to the effect that following such execution the con- tract was to be brought back to the membership for a second vote. At this meeting Angelo Turco, who was on the negotiating committee representing employees in the upholstering department, expressed dis- satisfaction with the proposed contract in that it failed to contain certain special vacation benefits he had sought for the upholstering employees. On November 16, 1950, Bell, together with Margaret Hustis, finan- cial secretary of Local 78, a representative of the International, and. another CIO official, met with the Employer. Turco and another representative from the upholstery department were present, to afford them an additional opportunity to obtain the more favorable vacation, clause they were seeking for the upholsterers. The Employer refused to grant such a clause, whereupon Turco, and his associate left before the final execution of the contract. Belli then affixed his signature to the contract, as did the Employer. The, next day Bell distributed mimeographed copies of the executed con- tract to the general membership. Only Turco and those in the up- holsterers' department for whom he spoke voiced disapproval of the. executed contract. On these facts we find without merit the Petitioner's. contention, that the contract in question cannot operate as a bar because its exe- cution was unauthorized. The contract which was signed by the- parties on November 16, 1950, contained only such provisions as had_ been approved by a majority of the members of Local 78 on No- vember 10, at which time President Bell was authorized to execute the agreement. Even if we assume that Bell's authority was in fact limited by a requirement that the agreement be brought back for final approval, there is no evidence that the Employer was apprised of any such limitation on Bell's authority to make a final and binding agreement. Under all the circumstances, we conclude that the con- - tract was executed for Local 78 by one who had at least apparent au- LEWITTES AND SONS 777 thority to sign. We have held in related situations that we will not look behind such authority? As noted above, the Petitioner further contends that the contract is not a bar to this proceeding because a schism in the membership of Local 78 creates a doubt concerning the continued representation by that union of the employees involved herein. The facts bearing upon this contention may be summarized as -follows : After the contract had been executed, 43 of the 53 employees in the upholstering department lead by Turco struck, resigned from Local 78, and demanded that the Employer enter into a separate agreement with them. This request was refused. On December 1, 1950, during the strike, Turco and 2 fellow upholsterers filed a petition with this Board (Case No. 2-RD-110) seeking to decertify Local 78. The petition was dismissed administratively on the ground that the November 16, 1950, agreement was a bar and, on appeal, this dismissal was sustained by this Board. Turco then organized the striking upholsterers as a labor organization, with himself as president, and affiliated with the Petitioner herein. The strike, which caused a layoff of other production employees, continued until Janu- ary8,1951. After he had returned to work, Turco secured an old checkoff list of members of Local 78, and on March 1, 1951, at his own expense, sent notices to about 80 or 90 names on this list advising that a special membership meeting was to be held at the meeting hall used by the Petitioner herein, on Sunday, March 4, 1951, to consider disaffiliation from Local 78 and affiliation with the Petitioner. At the time this announcement was sent to the 80 or 90 names on the list which Turco had obtained there were about 168 members in Local 78.' No notices of this meeting were posted in the plant nor were notices printed in the local paper, as had been the practice in the case of Local 78 meetings. The meeting was held as scheduled, and at the outset was presided over by Bell. A roll call taken demonstrated that of the 60 persons present only 23 were then members of Local 78. The others at the meeting were mainly upholsterers who, as noted above, had resigned the prior November. Turco moved disaffiliation from the CIO. His motion was not recognized because he was no longer a member of Local 78. He then attempted to tender his and the dues of the other resigned upholsterers present, which was refused. This provoked a great deal of noise and confusion, as a result of which Bell ad- journed the meeting and left the meeting hall together with some 2 See Alaska Salmon Industry, Inc., 89 NLRB 1379; C Hager & Sons Hinge Manufac- turing Company, 80 NLRB 163; Dictaphone Corporation, 78 NLRB 866; Electro Metal- lurgical Company, 72 NLRB 1396. 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CIO international officers who had attended as well as most of the, 23 Local 78 members. Turco then chaired the meeting and the re- maining group, composed in the main of the dissident upholsterers, passed a unanimous motion to disaffiliate from Local 78 and affiliate with the Petitioner herein. The record further shows that since the March 4 meeting, Local 78 has continued to function, to administer the contract including the processing of grievances, and to hold regular, well-attended meetings., Except for Bell, who, shortly after the March 4 meeting, terminated his employment with the Employer, the same -officers and committee- men have continued to function. These facts do not, in our opinion, warrant application of the schism doctrine set forth in the Boston Machine case.3 In all cases in which this Board has applied that doctrine it has regarded as an essential element the fact that the members of the contracting union, gathered at a meeting held for such purpose, have expressed through a formal vote their desire to take action affecting the existence or continued functioning of the union concerned 4 It is only from such formalized action that the Board is able to ascertain that the representative status of the contracting union has been placed in doubt, and the bargaining relationship thereby placed in a state of confusion. Without the requirement of formalized action at an appropriate union meeting it would be impossible to distinguish the cases in which there has been a substantial and effective schism resulting from the democratic action of the members of the union from those in which there has been no more than an expression of dissatisfaction from dissident minority elements in the union.. We are unable to conclude, in the instant case, that the disaffiliation vote taken at the meeting of March 4, 1951, can be regarded as an expression, through democratic techniques, of the desire of the mem- bership of Local 78 on matters affecting the continued representative status of that union. It is true, the Board is not concerned with whether disaffiliation meetings which are urged as the basis for an alleged schism compost with the constitution or by-laws of the union.5 Nor is it material that the disaffiliation vote finally taken may conform to the result desired by a particular group who favored the union to which affiliation was tranferred.6 What is important is whether the disaffiliation meeting was held under circumstances in which the vote taken could have been a true expression of the desires of the member- ship of the union. It seems plain to us that such was not the case here, and to reach this conclusion we need look no further than the e Boston Machine Works Company, 89 NLRB 59. * See Columbia River Salmon and Tuna Packers Association , 91 NLRB 1424. 5 See General Motors Corporation, 88 NLRB 450; Sperry Gyroscope, 88 NLRB 907. 6 See Harrisburg, Railways Company, 94 NLRB 1028. RIEGEL PAPER CORPORATION 779 manner in which the meeting was announced. There were no public notices in the way in which meetings of Local 78 were customarily announced ; instead notices were sent to a group of about 80 or 90 persons, constituting a little more than one-half of the then existing membership of the Union. When to this is added the fact that only 23 members of the Union were present at the meeting, and that most of these had left before the disaffiliation vote was taken, the conclusion that the disaffiliation vote was not a valid expression of the desires of the membership is inescapable. We conclude, on the record before us, that there has been no such schism in Local 78 as would warrant the conclusion that the current contract may not operate as a bar. Accordingly, we shall dismiss the petition. Order Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the National Labor Relations Board hereby orders that the petition filed herein be, and it hereby is, dismissed. RIEGEL PAPER CORPORATION and INTERNATIONAL BROTHERHOOD OF PAPER MAKERS, AFL, PETITIONER. Case No. 4-RC-1203. October 11, 1951 Decision and Order Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Harold Kowal , 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 Herzog and Members Murdock and Styles]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent employees of the Employer. 3. No question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act, for the following reasons: The Petitioner seeks a unit of all production and maintenance employees, including truck drivers, at the Employer's Warren Glen plant, excluding guards, watchmen, professional and clerical em- 96 NLRB No. 113.