Continental Southern Lines, Inc.

CONTINENTAL SOUTHERN LINES, INC.. 247 for expansion. Employees were placed on the payroll at this plant in October 1951, but production did not begin until about February 1, 1952. At the time of the hearing, the Employer had 62 production employees, and contemplated an increase by the end of June 1952 to 102 production employees. The Employer's proposed increases there- after were not specified on the record. The extent and timing of the planned increases were dependent upon the receipt of special ma- chinery which the Employer had ordered. The Employer did not plan to hire any additional employees as electricians or in various other classifications by June, and was operating with employees in practical- ly all the categories it would maintain when its contemplated expan- sion was completed. Under these circumstances and upon the basis of the entire record, we find that the working force which will be em- ployed when the elections directed herein are held will be a substantial and representative segment of the employees to be employed in the vot- ing groups for a reasonable time in the future.2 We therefore see no reason for departing from the Board's usual policy of directing an immediate election. [Text of Direction of Elections omitted from publication in this volume.] 'Rockwell Register Corporation, 98 NLRB No. 183. CONTINENTAL SOUTHERN LINES, INC. and TRANSPORT WORKERS UNION OF AMERICA, CIO, PETITIONER. Case No. 15-RC-615. May 02i, 195,0 Decision and Order Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Charles A. Kyle, 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, Styles, and Peterson]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. I The hearing officer referred to the Board motions to dismiss, on various grounds, made by the Employer and the Intervenor, Southern Association For Transportation Employees. For the reasons stated in section 3, infra,, the motions are granted. Also referred to the Board was a motion by the Petitioner to open and inspect certain ballots which did not reach their intended destination. As inspection of those ballots would not affect our determination herein, we do not find it necessary to pass upon the motion. 99 NLRB No. 42. 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The Petitioner and the Intervenor are labor organizations claim- ing 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 the Intervenor contend, inter alia, that their existing contracts, which cover the employees sought by the Petitioner and which will expire October 1, 1952, constitute a bar to this pro- ceeding. The Petitioner argues, principally, that the contracts are not a bar because a schism occurred within the Intervenor and the Petitioner is the rightful successor of that union.2 The Intervenor, an unaffiliated labor organization, was certified by the Board on December 19, 1949, as collective bargaining representa- tive of certain of the Employer's employees, in two units, one of bus operators and trainees, and the other of terminal employees, in Cases Nos. 15-RC-262 and 15-RC-311, respectively. Thereafter, on March 7, 1950, separate contracts for these two units, comprising about 450 employees, were executed by the Employer and the Intervenor to ex- tend to March 1, 1951. These contracts, which were modified on various dates thereafter, were reopened on about December 29, 1950, and extended to October 1, 1952. The Intervenor is governed, under its constitution, by a board of control, made up of representatives chosen by its various chapters among the Employer's employees,3 and by general officers elected by the entire membership. During August and September 1951 there was, apparently, considerable discussion among the membership about the possibility or desirability of affiliating with a national labor or- ganization. Meetings of the individual chapters were held, at some of which representatives of the Petitioner were present to explain the advantages of affiliation with it, and one of which was held in a Petitioner representative's hotel room. At all these meetings the ques- tion of affiliation was discussed and at a number of chapters, namely those at Jackson and Columbus, Mississippi, Alexandria, Louisiana, and Jackson, Tennessee, motions to affiliate were made and carried. 'The Petitioner also urges that the contracts are not valid because they were not approved or ratified by the contracting union 's membership . However, nothing in that union's constitution or the contracts requires such ratification or approval Nor (lops the record contain evidence of any requirement of ratification or approval by the union's mem- bership. In these circumstances, we assume that all requirements to render the contracts binding upon the parties were met. Avoo Manufacturing Corporation, New Idea Division, 87,,. ., ,B 645. There are chapters of the Intervenor at Alexandria and Shreveport. Louisiana, Jack- son and Columbus, Mississippi, and Jackson and Memphis, Tennessee which, before the affiliation action described herein, had a combined membership of about 250. CONTINENTAL SOUTHERN. LINES, INC. '249 Thereafter, a meeting of the board of control was held on Septem- ber 25, 1951. At this meeting, a motion to amend the Intervenor's constitution to affiliate with the Petitioner, and to authorize the In- tervenor's secretary-treasurer (Irby) to act as trustee and to take the necessary steps to achieve this, was made and carried. The Board also voted to terminate the services of Williams, the Intervenor's attorney, as of September 30. As the amendment to the constitution would be effective only upon ratification by the Intervenor's member- ship, a procedure for the voting was decided upon, including the selection of tellers, and a ballot form prepared, which, together with a covering letter from Irby, was mailed to the membership. The letter stated, in part, that : , This ballot must be returned to my office by 8: 00 A. M., October 3, 1951. The ballots will be counted by a Special Committee appointed at the Board of Controls Meeting. However, on or about September 26, Golden, the president of the Intervenor, met with Williams, and it was decided to draw up new application cards for membership in the Intervenor and new checkoff authorizations 4 Golden then proceeded to have the new application and checkoff cards drawn up and ballots printed which were to dupli, cate those previously ordered and distributed by Irby. Golden dis- tributed these new ballots by handing them out to individuals as they signed the new application and checkoff cards. On October 3 another board of control meeting was held. Of the 9 board members then present, 2 had been at the September 25 meet- ing, and 5 were new members elected by the chapters after the Septem- ber 25 meeting.-' At the October 3 meeting, the board of control voted to remove Irby ; thereupon he left the meeting. Later Irby, together with 3 members of the board of control whom he considered to be the only properly designated members, proceeded to count the ballots which he had distributed, disregarding the method previously adopted by the board of control for such counting .6 The vote was 106 to 30 in favor of affiliation with the Petitioner. The 3 board of control members then went back to the meeting, and, at the first opportunity, announced the result, stated that in view thereof the meeting was illegal, and left. The board which remained voted to disregard the results of the election on the ground that the ballots had been illegally seized and counted, and to remain unaffiliated.7 ' This action was not approved at any board of control meetin g, but Golden stated that he telephoned a majority of the board members and obtained their approval. 6 The remaining two were alternates " Representatives of the Petitioner were with Irby at various stages of this activity. Other action taken at this meeting included the reemployment of Attorney Williams, who had been discharged at the prior meeting of the board of control. 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD During that same evening, Local 279 of the Petitioner was chartered in a meeting at employee Peck's house. This Local has since made some efforts to deal with the Employer which has, however, continually refused to recognize it. The record does not indicate the extent of the Petitioner's membership at the present time, or whether it has held any meetings since its charter. The Intervenor has continued to function as the recognized bar- gaining representative with a membership of about 200 employees. The same board of control that met on October 3 is in office, as is the same president. The Intervenor has processed grievances, dues are being checked off by the Employer on the Intervenor's behalf," and the Intervenor is negotiating with the Employer about changes in working conditions. The Board has recently indicated that the schism doctrine is not to become an unqualified exception to the contract bar rule .9 Without attempting to pass upon the validity of the various actions relating to the alleged affiliation with the Petitioner, we note that the Inter- venor has uninterruptedly continued to act as the representative of the employees, and has maintained its status as the effective and identi- fiable contractual representative of these employees. We find, under all the circumstances, that the schism doctrine enunciated in the Bos- ton Machine case 10 is inapplicable here, and that the Intervenor's contracts are a bar to this petition.h1 We shall therefore dismiss the petition, without prejudice, however, to the timely filing of a new petition. Order Upon the basis of the entire record in this case, the National Labor Relations Board hereby orders that the petition filed herein be, and it hereby is, dismissed. In view of our conclusion herein, we find it unnecessary to pass upon the other contentions of the parties. B The record indicates that litigation is pending involving the proper disposition of these funds. ° See Hardy Manufacturing Company, 98 NLRB 811, and cases cited therein. 10 Boston Machine Works Company, 89 NLRB 59 11 Hardy Manufacturing Company, supra.