Lewin-Mathes Co.

G. MATHES DIVISION OF LEWIN-MATT-IES COMPANY 911 position and contentions of Respondent Unions and their counsel are set forth in footnotes 4, 5, and 38 of the Intermediate Report as sarne appears in 87 NLRB 1263 at pages 1269, 1270, and 1279, respectively. D_ uring the original hearing and at the close thereof, counsel for the charging party moved to strike the testimony of Byrnes because he had refused, upon advice of counsel, to answer questions on cross-examination as to matters which occurred before the Mediation Board meetingsi The undersigned reserved ruling for his Intermediate Report, wherein the motion to strike was denied. The record discloses that other than an admission that he attended meetings before the New York State Mediation Board, Byrnes gave no testimony. 3 CONCLUSIONS: RECOMMENDATIONS Having duly considered the testimony of Byrnes on cross-examination before the under- signed on April 22, 1952, the undersigned is of the opinion that had such testimony been a part of the record at the time the Intermediate Report was prepared and submitted (June 7, 1948), the findings, conclusions, and recommendations would have remained as then made and submitted. The Board's finding to the effect that proposals by Respondent Unions made subsequent to oral argument and inconsistent with it were presented as alternatives to that agreement and to induce the Company to put it in writing and perform it , is, of course, binding upon the undersigned. The undersigned is of the opinion that Byrnes' testimony on cross-examination, referred to above, will not support a finding that the Respondent Unions have abandoned the July agreement in issue herein; and that such testimony is not inconsistent with its claim to the contrary. It is so found. On the foregoing and the instant record it is recommended that the Board abide by its decision of December 21, 1949, dismissing said case. 3At all times material herein, the Board's Rules and Regulations read as follows: Sec. 102 44 Contemptuous conduct; refusal of witness to answer questions.-Contemp- tuous conduct at any hearing before a trial examiner or before the Board shall be ground for exclusion from the hearing. The refusal of a witness at any such hearing to answer any question which has been ruled to be proper shall, in the discretion of the trial examiner, be ground for striking all testimony previously given by such witness on related matters (Underscoring supplied.) G. MATHES DIVISION OF LEWIN-MATHES COMPANY and UNITED TEXTILE WORKERS OF AMERICA, AFL and its LOCAL 1282, Petitioner. Case No. 14-RC-2147. June 30, 1953 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Harry G. Carl- son, hearing officer. The hearing officer ' s rulings made at the hearing are free from prejudicial error and are hereby affirmed. 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 employees of the Employer. 3. No question affecting commerce exists concerning the representation 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: On February 5, 1952, the Employer and the Textile Workers Union of America , CIO, the Intervenor herein, executed a 105 NLRB No. 134 9 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2-year bargaining contract covering , with certain exceptions, an all-employee unit at the Employer's St. Louis plant, as certified by the Board on December 19, 1951, in Case No. 14-RC-1584. The petition herein, for the same unit, was filed February 13, 1953, by the United Textile Workers of America, AFL, who moved to amend their petition at the hearing to include as a copetitioner its Local 1282, newly organized to represent the said employees--a motion we hereby grant. The Intervenor and the Employer urge the February 1952 contract, which contained a union-security clause, as a bar. The Petitioner contends that it is no bar for two reasons: (1) The existence of a schism inthe employee ranks concerning their bargaining representative; and (2) the ineffectiveness of the contract as a bar because the Intervenor's St. Louis Joint Board and its Local 1282, although both in compliance before this proceeding was begun, were not in compliance at the time of the 1951 certification and the contract negotia- tions. Alleged schism: In January 1953 William A. Doyle, an international representative of the Textile Workers Union of America, CIO, and business agent of its St. Louis Joint Board, with which all locals of the Union in the area are affiliated, severed his connection with that Union and so advised President Johnnie Clarke of CIO Local 1282. At his suggestion Clarke called off the regular meeting of the Local scheduled to be held January 29. Regular November and December meetings had also not been held, but a special meeting to select a committee for wage reopening negotiations was called for February 5, 1953, by Joint Board Manager Bert Miller. On February 8, Clarke signed and posted notices sent her by Doyle for a special meeting of "All G. Mathes Union Members," to be held on February 10 at a Teamsters Hall instead of the customary meeting place , "to discuss and act upon the matter of continued affiliation with Textile Workers Union of America, CIO." However, she informally discussed the matter of attendance' with various members at work and, with several other officers , went instead to a St. Louis Joint Board meeting scheduled for that night. Because of this, Vice-President Aemisegger of the CIO Local took charge of the meeting at the Teamsters Hall, which was attended by 57 of the 225 total membership--approximately the average attendance . Doyle attended and stated his reasons for leaving the Textile Workers, CIO. After discussion by the members of the wisdom of their doing likewise , a motion to disaffiliate from the Textile Workers Union of America, CIO, and affiliate with the United Textile Workers of America, AFL, was made and carried by a show of hands--uncounted but without votes in opposition . A list signed during the course of the meeting by 57 employees was identified by Aemisegger and admitted in evidence to show the number and identity of those attending the meeting. This list was captioned: "We, the undersigned, hereby now withdraw from membership in Textile Workers Union of America, CIO, Local 1282, and hereby declare that G MATHES DIVISION OF LEWIN-MATIIES COMPANY 913 we have joined the United Textile Workers of America, AFL, which we designate as our collective bargaining agent with respect to wages, hours and other conditions of employment." Lists similarly captioned and containing 68 signatures secured sometime after the February 10 meeting were rejected as evidence by the hearing officer, a ruling to which the Peti- tioner excepted. Aside from the fact that at least 9 of these names duplicate names on the list signed at the meeting, consideration of the lists would have no effect on our determi- nation here, nor would consideration of the authorization cards for AFL Textile Union membership, as well as Board receipts for additional authorization cards, sought to be introduced by the Petitioner. On February 11, an international representative of the Petitioner advised the Employer by wire and by letter that it claimed to represent a majority of the Employer's employees in the bargaining unit, and the letter gave "notice" not to pay checkoff funds to the CIO Union. Two days later the petition herein was filed. On March 5, 1953, at a meeting of AFL Local 1282, its new charter was presented to the member- ship and officers were elected. In the meantime the CIO Local held its regularly scheduled monthly meeting on February 25, negotiated with the Employer on wages at several meetings , and processed a grievance concerning drinking fountains . Its president , Clarke, testified that its bank account was active and that it had recruited new members. A representative of the Employer testified that no employee had requested the right to revoke a checkoff. On behalf of the Petitioner there was testimony that the new Local 1282 had filed a grievance concerning an appropriate place for employees to lunch. On these facts not only is there doubt that the disaffiliation action took place at a meeting of the contracting union in view of the manner of calling the meeting and the place of holding it,' but it is clear from the continued activity of the CIO Local that the disaffiliation expression at the February 10 meeting was indicative merely of a dissident element in the member- ship, not of a substantial and effective change in the existence and functioning of the recognized bargaining agent.2 We find the alleged disaffiliation action insufficient to render the contract ineffective as a bar. Alleged Effect of Noncompliance of CIO Local 1282 and the St. Louis Joint Board at the Time of Contract Execution The contract here in question is one between the intervening International Union and the Employer. The Intervenor's St. Louis Joint Board is not a party to it, nor is its Local 1282, which was chartered and came into compliance after execution of the bargaining contract on February 5, 1952. The St. Louis 'See Lewittes and Sons, 96 NLRB 775. 2See Allied Container Corporation, 98 NLRB 580. 9 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Joint Board achieved compliance for the first time on February 2, 1953. The contract refers throughout to "the Union," without reference to local or joint board organizations. It was signed for the Union by Doyle as "Nat. Rep." and by individual employees. The Petitioner contends that the facts surrounding recogni- tion of the Intervenor as bargaining representative constituted a "fronting " situation , with the real parties in interest being, not the complying International, but the incipient local and the St . Louis Joint Board ; hence that , in the absence of compliance by the said local and Joint Board , no election should have been held , no certification issued, and no contract resulting therefrom should bar another petition. The Intervenor, on the contrary , contends that there was no local organization to achieve compliance until the contract had been negotiated -- in accord with the Intervenor ' s customary manner of organizing and negotiating for employees -- and that the Joint Board agent acted on behalf of the International up to the time of contract execution . Thus it argues that the International was clearly the real party in interest during the 1951 - 52 representation proceeding and contract negotiations, and only it was required to comply with the Act's filing require- ments . We note that the employee group which , after contract, was chartered as Local 1282 , met on an informalbasis , sometimes on parking lots near their place of employment , up until the time of the December 1951 representation election , and, only after success in that election , chose temporary officers. It also appears that the question of assigning these employees a local of their own, or of including them in an existing local, was undecided before the election , although precisely when or how that question was resolved does not appear . In organizing these employees and negotiating the contract Doyle, not the local group itself, took the initiative. As to the Joint Board's activity, it is clear that its bylaws, pursuant to provisions of the international constitution, au- thorized it to organize employees and negotiate bargaining agreements . But Doyle , though paid as its business agent by the St. Louis Joint Board , had a dual capacity as representative of the International and he executed the contract in question only in the latter capacity. His testimony that contracts and petitions were customarily in the name of the International "for compliance reasons " was amplified by him as occasioned by a difference of opinion in union circles as to whether com- pliance by any joint board was even necessary under the Act in view of the purpose of joint board existence --to service locals in each area and to coordinate local activities. On these facts we consider it unnecessary to decide whether the St. Louis Joint Board is itself a labor organization of which we would require compliance were the question one of allowing the International to appear on a ballot or be certified . Likewise we deem it unnecessary to decide whether the local group organization was sufficiently perfected to have required its compliance for those purposes. AMERICAN STORES COMPANY 915 After careful consideration of all the facts and the arguments presented here, the Board concludes that its fronting doctrine, formulated as it was as a policy to discourage circumvention of the Act's filing requirements, 3 should have no application to the question of contract bar presented here. In this connec- tion we emphasize the fact that the International is the sole union party to the contract urged as a bar, that no question concerning its exclusive representation of these employees was raised at the time, and that the subordinate union entities alleged to have been "fronted for" later achieved compliance, before this proceeding was begun. We deem our decision in Fein's Tin Can Co., Inc. and Atlas Can Corporation, 99 NLRB 158, inapplicable in this situation. Accordingly, we find that the February 5, 1952, contract is a bar to a present determina- tion of representatives. [The Board dismissed the petition.] Chairman Herzog took no part in the consideration of the above Decision and Order. AMERICAN STORES COMPANY and LOCAL 804, UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL, Petitioner. Case No. 5-RC-1245. June 30, 1953 DECISION AND ORDER Upon a petition duly filed, a hearing was held before Henry A. Segal, a hearing officer of the National Labor Relations Board. 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 [Members Houston, 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 National Labor Relations Act. 2. The labor organizations named below claim to represent employees of the Employer. 3. No question of representation exists concerning the representation 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: Since 1938 the International Union of Operating Engineers, AFL, Locals Nos. 272 and 272A, the Intervenor herein, has bargained for the Employer's Zone No. 6 engineers and main- tenance men in the Baltimore , Maryland , area . Beginning in 1948 the contractual unit has described these employees as 3See Lane Wells Company, 77 NLRB 1051, 79 NLRB 252. 105 NLRB No. 133.