Barton Distilling Co.

BARTON DISTILLING COMPANY 361 within 5 days after the election and filed objections without the advice of counsel after the 5-day period had expired, and that, had his objections been timely filed, they would have been suffi- cient to cause the election to be set aside. Local 182 contends that for these reasons its objections shouldnotbe overruled as untimely. Section 102.61 of the Board's Rules and Regulations provides that objections to an election must be filed with the Regional Di- rection within 5 days after the tally of ballots has been furnished the parties. The Rules and Regulations of the Board, having been duly published in the Federal Register, are binding upon all par- ties to Board proceedings, regardless of actual notice.3 Noade- quate reason has been shown for waiving in this case the time limit on filing objections to elections. As there is no dispute that the objections of Local 182 were filed more than 5 days after it was furnished with a tally of ballots, we find that such objections were untimely,4 and we will deny the instant motion, insofar as it seeks to have the Board consider such objections on their merits. [The Board denied the motion. ] 3 Federal Register Act, 49 Stat 503, 44 USC § 301 et seq. at § 307. 4See William J. Dunn, d/b/a Dunn Motor Company, 100 NLRB 822. BARTON DISTILLING COMPANY, and BARTON WAREHOUSE AND DISTILLING CORPORATIONland DISTILLERY, REC- TIFYING & WINE WORKERS' INTERNATIONAL UNION OF AMERICA, AFL, Petitioner . Case No . 9-RC-1958. July 23, 1953 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before William G. Wilkerson, 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 Peter- son]. 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 representation of employees of the Employer within the meaning IThe name of the Employer appears as amended at the hearing. 106 NLRB No. 65. 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Section 9 (c) (1) and Section 2 (6) and (7) of the Act, for the following reasons: The International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, CIO, herein called Brewery Workers, CIO, its Local No. 41, herein called CIO Local, and the Employer are parties to a collective- bargaining contract covering the employees in the unit sought herein. This contract was executed April 13, 1953, to be retro- active to January 15, 1953, and to extend until January 15, 1954. The Brewery Workers, CIO, and the Employer contend that this contract bars an election at this time. The Petitioner, Distillery, Rectifying & Wine Workers' International Union of America, AFL, herein called Distillery Workers, AFL, asserts that a schism has occurred, preventing the contract from barring this proceeding. Following some dissension in the CIO Local , anda reduction in wages of 1 cent an hour under the escalator clause of the contract, 76 dissident employees attended an informal meeting on May 15, 1953, towhichMcKiernan, international representa- tive of the Distillery Workers, AFL, was invited.2 They dis- cussed with McKiernan the matter of changing affiliation from the CIO to the AFL, and signed a document stating they desired representation by the Distillery Workers, AFL. On May 21, a similar informal meeting was held, with 95 employees present. McKiernan, who was again invited to attend, presided. He discussed with the employees the proposed change in affiliation, and answered questions regarding the current contract, the AFL wages at other distilleries, and the type of contract the AFL could negotiate . He told them the AFL "could get the same agreement only better," and expressed the belief that the AFL could negotiate a wage increase for them. Neither of these two meetings was called by the CIO Local, and both were admittedly AFL organizational meetings. However, the CIO Local did call a regular monthly meeting on May 25. The meeting notices, which were posted, announced that CIO guest speakers would be present and urged all mem- bers to attend.' The meeting was attended by 137 of the 150-160 members in the bargaining unit. The CIO Local's president, Donahue, opened the meeting, introduced one of the officials from the Brewery Workers, CIO, and stated that this official would preside. Shortly thereafter, employee Jackson made a motion4 to invite the AFL representatives into the meeting and to allow them to speak, but the chairman ruled the motion out of order. Jackson then asked for, and obtained, a standing vote 2McKiernan was invited by employee Jackson, whose husband was an AFL steward at another distillery. SAlthough the notices made no mention of any disaffiliation, it is evident that the Brewery Workers, CIO, the CIO Local, and its officers and members were aware of the disaffiliation activity. The meeting was held in the armory, which was large enough to accommodate a much larger attendance than the 30 or so members who usually attended meetings. 4Jackson admitted that the motion had been typed out by Distillery Workers, AFL's, repre- sentative, McKiernan, in preparation for the meeting. BARTON DISTILLING COMPANY 363 of the membership. The chairman refused to recognize the favorable vote, and all except about 14 members and the Local's officers walked out of the meeting. When the dissenters refused to return unless the motion was allowed , the CIO officials left. 5 The meeting then reconvened, with employee Jackson pre- siding.6 McKiernan and the other AFL officials were invited to attend, and they talked to the group. While McKiernan had the floor, he proposed the following motions, which were duly made and seconded, and approved by virtually a unanimous' vote: (1) To disaffiliate and to dissolve the Local; (2) to seek a charter from the Distillery Workers, AFL; (3) to authorize the AFL to negotiate with the Employer for them; (4) to impound the Local's funds in the bank;' and (5) to notify the Employer and this Board of their actions. In the meantime, on May 22, the Petitioner filed the petition herein. On June 1, Fessenden, regional director for the Brewery Workers, CIO, acknowledged receipt of a copy of the petition and notified the Board's Regional Director that the Brewery Workers, CIO, had withdrawn the Local's charter and was disclaiming any interest in the proceeding . However, on June 9, 2 days before the hearing herein, the general counsel for the Brewery Workers, CIO, notified the field examiner that the June 1 disclaimer of interest was withdrawn "because it had been based upon erroneous information." On the following day, CIO representatives went to the Employer's plant and secured 16 authorization cards.9 No notice of the disclaimer and revocation of charter was given to either the CIO Local's officers or the Employer. The Local still has its same officers and, according to its presi- dent, is still in existence until they are notified officially that the charter has been revoked. The Employer continues to check off union dues, but is holding the dues in escrow. It has declined to recognize the Distillery Workers, AFL, pending disposition of this proceeding. There have been no grievances to process. In similar situations where some of the employees , dissatis- fied with their representation or with the bargain made by their representative , desire to change such representation at a time 5 According to Fogle, the CIO Local's financial secretary, Fessenden, the Brewery Work- ers, CIO's, regional director, told the Local's officers that the women had their minds made up, that "there wasn't a thing you could do," and that he "wouldn't have any more to do with us," and that "the best thing for you boys to do is to get back out there and get with them." However, according to Donahue, one of the officials said: "It looks like that you have A.F. of L.," to which another official replied: "Hell, we don't give up that easy." 6 After the CIO officials left, the CIO Local's officers joined the other members in the meeting, but did not offer to preside Two temporary officers were elected. ?One witness testified that from 2 to 4 members did not join in the standing votes, but neither did they stand to oppose the motions 8 Donahue and three others were elected to do this and they did so the following day. 9Including 1 signed by Donahue, the CIO Local's president who had met with about 100 other employees on June 2 and signed revocations of CIO dues checkoffs and an application for an AFL charter. Donahue reasoned at the hearing: "So far as myself, I was satisfied with the contract that we had and if it would hold I would say okay; if it doesn't, why we have to have representation of some sort and the A F. of L of course is the next choice." 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD generally considered inappropriate by the Board, the Board has held that the mere fact that they have expressed that dis- satisfaction in formalized action is not by itself sufficient reason for making an exception to the normal contract-bar rule.10 Before applying the schism doctrine, the Board must be convinced that the bargaining relationship is so confused that no stabilizing purpose would be served by applying the contract- bar rule, and the Board will not permit the schism doctrine to be used to facilitate raiding by a rival union." Moreover, the Board will not accord any validity toa formalized disaffiliation proceeding when, by reason of the control by the rival union over the disaffiliation proceeding, a vote is not taken at a meeting of the contracting union.12 Applying these principles to the present case , we believe that the situation does not warrant an exception to the contract-bar rule. We find that the Petitioner actively assisted the dissident employees in their efforts at disaffiliation, that the May 25 meeting effectually became an AFL meeting after the CIO offi- cials departed, and that there remains sufficient support of the CIO Local for it to represent the employees and to administer the contract. As the existing contract will not expire until January 15, 1954, we find that it is a bar to the present petition. We shall therefore dismiss it, without prejudice to a timely refiling.'3 [The Board dismissed the petition.] 10 Allied Container Corporation, 98 NLRB 580. 1lSaginaw Furniture Shops, Inc., 97 NLRB 1488; Dennis-Mitchell Industries, 101 NLRB 846. 12 Bendix Products Division, 98 NLRB 1180. 13 In light of this disposition of the case, we deny the motion of the Brewery Workers, CIO, to reopen the hearing. GENERAL ELECTRIC COMPANYand INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS, CIO, Petitioner . Case No . 9-RC-1939. July 23, 1953 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before William G. Wilkerson, hearing officer. The hearing officer' s rulings made at the hearing are free from prejudicial error and are hereby affirmed.1 'The Petitioner's motion, made at the hearing, to consolidate the instant case with Case No. 9-RC-1839 was reserved for the Board. As the Board's decision in that case issued on May 26, 1953, the day of the hearing in the present case, the motion is denied. The Peti- tioner's motion made in its brief, that the Board review the compliance status of the Greater Louisville Metal Trades Council of Louisville, Kentucky, AFL, as it pertains to that organi- zation's participation in Case No. 9-RC-1839, is not properly before the Board and is there- fore denied. 106 NLRB No. 66.