Hardy Manufacturing Co.

HARDY MANUFACTURING COMPANY 811 1951, commenced picketing at all three stores. Within a week the pickets were withdrawn from the Springfield Avenue and, Summit stores, but at the time of the hearing picketing continued at the Broad Street establishment. On November 1, 1951, the Union sent a letter to the Employer in which the Union expressly restricted its claim of representation to the employees of the Broad Street store. At the hearing also, the Union disavowed any claim to represent the employees at the Springfield Avenue and Summit stores and continued to limit its claim to the representation of employees at the Broad Street store only.5 As the Union does not claim to represent the employees in the three New Jersey stores, we find that no question concerning representa- tion is raised by the Employer's petition.6 The Board, therefore, will dismiss the petition. Order IT IS HEREBY ORDERED that the petition filed herein be, and it hereby is, dismissed. The record contains conflicting testimony as to when and how the Union first changed its position . As the record otherwise clearly proves that on November 1, 1951, and at the hearing, the Union claimed to represent the employees at one store only, it is not necessary for the Board to resolve the conflicts of testimony. Coeur D'Alene Grocers Association, 88 NLRB 44. HARDY MANUFACTURING COMPANY and INDEPENDENT AUTO WORKERS COMMITTEE, PETITIONER. Case No. 35 RC 617. March 25, 1952 Decision and Order Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Richard C. Curry, 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 [Members Houston, Murdock, and Styles]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce with the meaning of the Act. ' 2. The labor organizations named below claim to represent certain employees of the Employer.' I The Employer and the Intervenor, the International Association of Machinists , District No. 90, and its affiliated Local Lodge No. 1076, AFL, contend that the Petitioner is not a labor organization. The Petitioner's membership consists of about 100 of the Employer's Pendleton, Indiana, employees . It has officers, and the bylaws provide for a bargaining 98 NLRB No. 127. 812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 reason : The Petitioner seeks to represent a unit of production and mainte- nance employees at the Employer's 2 Pendleton, Indiana, plants, where automotive parts and decorative automotive hardware are manufac- tured. The Intervenor, which has represented the approximately, 440 employees in this unit for the past 11 years, and the Employer con- tend that a current 4-year contract, executed on July 30, 1951, is a bar to this proceeding. The Petitioner alleges that the contract is not a bar because of a schism within the Intervenor. The record shows that a group of the Employer's employees, dis- satisfied with the July 30, 1951, contract, were addressed on July 31 at Anderson, Indiana, by a representative of the CIO. At a regular meeting of the Intervenor on August 8, Roy Creason, an employee who was among the group which had met at Anderson, introduced a motion to disaffiliate from the International Association of Machinists, herein called the IAM, and to affiliate with the CIO? The Inter- venor's president ruled the motion out of order but, upon appeal to the floor, his ruling was reversed, and, with the vice president in the chair; the motion was put to a vote. The motion passed by a vote of about 50 to 18. Approximately 75 members were present.' No action, how- ever, was taken upon the motion. Creason stated that it was aban- doned because the CIO official told him "that there wasn't anything he could do at the time." 4 At meetings of the dissident group only, on September 9 and at 7 p. in. on September 12, the movement was revived. Plans were made to disaffiliate from the IAM and to form the Petitioner. At the Inter- venor's regular meeting, at 8 p. in. on September 12, motions were introduced to transfer the Intervenor's funds to the custody of a trusteeship and to disaffiliate from the IAM and become independent. Prior notification that these motions would be made was by word of mouth. The minutes of the meeting indicate that both motions were seconded, but do not reveal whether an actual, vote was taken. The testimony indicates that a vote was taken on the motions, but appar- committee and a grievance committee. The chairman of the Petitioner testified that it is formed for the purpose of collective bargaining and to process grievances. In view of the foregoing, we find that the Petitioner is a labor organization within the meaning of the Act. 2 Notice that this motion would be made was given to some employees by word of mouth. s The Intervenor's records indicate a membership of 473 paid-up members. + The record indicates that a no-raiding agreement covering these employees existed between the International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, CIO, and the IAM. HARDY MANUFACTURING COMPANY 813 ently it was not made under the direction of the chair.' In any event, no action has been taken on either of these motions made at the Sep- tember 12 meeting. Most of those present at the Intervenor's September 12 meeting remained for another meeting at which the Petitioner was formed and its officers elected, including Roy Creason as its chairman. About 110 employees signed a list indicating at once their desire for member- ship in the Petitioner and for a Board representation election. There have been no other meetings of the general membership of the Peti- tioner.° Since that time the Intervenor has held its usual meetings twice a month. At the Intervenor's regular December elections, Roy Crea- son, a duly nominated candidate, although chairman of the Petitioner, was elected president of the Intervenor. The Petitioner's recording secretary and treasurer were elected, respectively, to equivalent posi- tions of the Intervenor. The new president and secretary have func- tioned in these offices. Grievances, numbering about a dozen, have been processed by the Intervenor in accordance with the current con- tract since the September 12 meeting. All the Intervenor's stewards, about 20, have continued in their positions. The Employer continues to recognize the Intervenor as the exclusive bargaining agent for these employees. In recent decisions, the Board has indicated that henceforth it will not permit the schism doctrine to become an unqualified exception to its contract bar rule.7 Here the Petitioner contends that a schism ex- ists primarily because motions to disaffiliate from the Intervenor were made at several of its meetings. It is clear from the facts of this case, however, that the Intervenor has uninterruptedly carried out its func- tion as the bargaining agent of the Employer's employees and has maintained its status as the effective contractual representative of these employees. Moreover, the acceptance of official positions in the Intervenor by officers of the Petitioner would appear to be in derogation of the Petitioner's present claim that the Intervenor is no longer the identifiable, functioning bargaining representative of these employees. On the basis of the foregoing facts, we find, accordingly, that the Intervenor's contract is a bar to this petition. 6 There is a contradiction between the testimony of the witnesses of the Petitioner and the other parties upon what transpired at this point in the meeting . All seemed to agree that a lack of order preceded the voting. Harris, then president of the Intervenor, who chaired this meeting, testified that he ruled the first of these motions out of order and then adjourned the meeting. 6 Filing the petition in this case and writing the bylaws have been its only activities. '' West Steel Casting Company, 98 NLRB 153 ; General Electric Company, Operating Division, Lamp Department, 98 NLRB 134 ; American Cyanamid Company, Calco Chem- ical Division, 98 NLRB 9; Saginaw Furniture Shops, Inc., 97 NLRB No. 231. 814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Order IT IS HEREBY ORDERED that the petition filed herein be, and it hereby is, dismissed. TODD SHIPYARDS CORPORATION, Los ANGELES DIVISION, A CORPORATION, and DENNETT N. GROVER. Case No. 21-CA-1067. March 26,195°0 Decision and Order STATEMENT OF THE CASE Upon a charge filed on March 20, 1951, by Dennett N. Grover, an individual, the General Counsel of the National Labor Relations Board, herein called, respectively, the General Counsel and the Board, by the Regional Director for the Twenty-first Region (Los Angeles, California), issued his complaint on June 22, against Todd Ship- yards Corporation, Los Angeles Division, herein called the Respond- ent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (a) (1), Section 8 (a) (3), and Section 2 (6) and (7) of the National Labor Relations Act, as amended, herein called the Act. Copies of the complaint, accompanied by notices of hearing thereon, were duly served upon the Respondent and the charging party. With respect to the unfair labor practices, the complaint alleged in substance that the Respondent, on or about November 27, 1950, dis- charged Carlos Dillenbach 1 and Dennett N. Grover because they engaged in activities on behalf of "the Union," and thereafter refused reemployment to them because of such activities, and that, by the foregoing acts, Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8 (a) (1), and discriminated in regard to hire or tenure of employment and conditions of employment of its employees to discourage membership in the Union, in violation of Section 8 (a) (3) of the Act. The Respondent duly filed its answer denying all allegations of unfair labor practices and asserting that Dennett N. Grover and Carlos Dillenbach voluntarily quit its employment. Pursuant to notice, a hearing was held at Los Angeles, California, from August 20 to August 23, 1951, inclusive, before William E. Spencer, the Trial Examiner duly designated by the Chief Trial Examiner. The General Counsel and the Respondent were represented s Also referred to in the record as Dillenbeck. 98 NLRB No. 124.