The Weatherhead Co.

THE WEATHERHEAD COMPANY, ANTWERP DIVISION 717 ever , including the instant Employer , joined in the multi- employer multistate negotiations leading to the execution by the Employer of a contract with the Teamsters on February 1, 1952, covering the Employer's Ohio terminals, as well as those outside of that State. The Employer was represented at those negotiations by one of its own officials, as well as by the representative of the employer association of which it was a member. The Employer has one of its officials on the em- ployers' areawide grievance committee. The Employer also stated that it desires to continue bargaining on the multi- employer multistate basis. The Employer and the Teamsters contend that this history of bargaining on a broader basis renders inappropriate the unit sought by the Petitioner. The Petitioner contends that the Employer's history of multiemployer multistate bargaining has not been of sufficient duration to preclude finding appropriate a single-employer unit in this case . We do not. agree. The Employer participated in the multiemployer multistate negotia- tions leading to its contract with the Teamsters of February 1, 1952, and has stated that it desires to continue to bargain on this broader basis. In a recent case, 3 the Board found inappro- priate a single-employer unit where the employer had partici- pated in multiemployer bargaining for only 11 months but had reaffirmed its desire to continue to bargain on such a basis. In the circumstances of this case, we find that the single-em- ployer unit sought by the Petitioner is not appropriate for the purposes of collective bargaining .4 As the petition seeks an inappropriate unit , it will be dismissed.5 [The Board dismissed the petition.] s Acryvin Corporation of America, 107 NLRB 917. 4 Taylor and Boggis Foundry Division of Consolidated Iron-Steel Mfg. Co., 98 NLRB 481. 5 In view of our decision herein, we find it unnecessary to consider the other reasons assigned by the Employer and the Teamsters for their contention that the petition should be dismissed. THE WEATHERHEAD COMPANY, ANTWERP DIVISION and INTERNATIONAL UNION, UNITED AUTOMOBILE, AIR- CRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, LOCAL 1269, CIO, Petitioner and WEATHER- HEAD EMPLOYEES' ASSOCIATION. Case No. 8-RC-2132. April 30, 1954 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Ralph W. Tyner, hearing officer. The hearing officer's rulings made at the 108 NLRB No. 101. 718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hearing are free from prejudicial error and are hereby affirmed. i Upon the entire record in this case , the Board finds: 1. The Employer is engaged in commerce within the mean- ing 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 mean- ing of Section 9 (c) (1) and Section 2 ( 6) and ( 7) of the Act, for the following reasons: Pursuant to an agreement between the Employer , the Inter- venor, and International Union, United Automobile , Aircraft and Agricultural Implement Workers of America , CIO, hereinafter referred to as the UAW-CIO , a consent election was held on April 10, 1952 , among the production and maintenance em- ployees at the Employer ' s plant. Thereafter , on April 17, 1952, the Intervenor , which received a majority of the valid votes cast in the election ,2 was certified as the representative of these employees . On February 21, 1953 , the Intervenor signed a bargaining contract with the Employer , to expire September 21, 1955. As a result of differences over the handling of grievances, certain of the employees met informally with representatives of the UAW - CIO in Defiance or Antwerp , Ohio. In early June 1953 , Shock, Baringer , and Colby , representatives of the UAW- CIO, appeared in Antwerp , where the Employer' s plant is lo- cated. They held organizational meetings with employees at the Employer ' s plant gates and in an adjoining cemetery. Shock authored organizing material on behalf of the UAW - CIO under the name "Weatherhead Employees ' Organizing Committee," and he and Baringer distributed the material or arranged for its distribution. Between early June 1953 and August 8, 1953, "T" shirts and caps were "passed out" to employees bearing the inscription "Vote UAW, Join UAW." Some of these were distributed by Shock. A regular monthly meeting of the Intervenor was held on July 11, 1953 . At the meeting a resolution was passed to affil- iate with the UAW-CIO. The vote was 93 to 28. A resolution to amend the Intervenor ' s constitution by substituting the con- stitution of the UAW- CIO was also voted 83 to 23. On July 11, there were 430 employees in the bargaining unit and 376 active paidup members of Intervenor . At the next regular monthly meeting of the Intervenor , on August 8, 1953 , the resolution to substitute the UAW - CIO's constitution was again voted on and carried 125 to 79 . On August 8, there were 425 employees in i Subsequent to the hearing the Petitioner requested oral argument before the Board. This request is hereby denied, as in our opinion the issues are sufficiently developed in the record and the briefs filed in this proceeding. 2 The UAW-CIO received 59 votes; the Intervenor , 210; and no union, 2. THE WEATHERHEAD COMPANY, ANTWERP DIVISION 719 the bargaining unit and 379 active members of Intervenor. Both Shock and Baringer attended the July 11 and August 8 meetings. The resolutions to affiliate with the UAW-CIO and to amend the Intervenor's constitution was drafted by the UAW-CIO's attorney, and were thereafter transmitted by Shock to an employee who presented them at the meetings. Notices posted in advance of the meetings did not indicate that any action with respect to change of affiliation or amendment of the constitution would be taken. On August 20, 1953, the UAW-CIO issued a charter to Local 1269, the Petitioner herein. Pursuant to a notice posted on the plant's bulletin board, a special meeting of the Intervenor's membership was held on August 22, 1953, at which time certain new officers and com- mitteemen were elected to fill vacancies created by resigna- tions. The results of the elections were posted on the plant's bulletin board. Since August 22, 1953, the Intervenor has held a full slate of officers and committeemen, and has held regular meetings . Pursuant to a wage reopening provision in the agree- ment of February 21, 1953, and after negotiation, the Intervenor and the Employer entered into a supplemental agreement on September 16, 1953, regarding wages. The agreement hadpre- viously been ratified by members of the Intervenor. The Inter- venor has at all times retained control over funds previously collected. It has continued to receive monthly dues withheld by the Employer according to employee authorizations; no revo- cations of dues checkoff authorizations in favor of the Inter- venor have been received by the Employer. From August through part of December 1953, 36 new cards authorizing the deduction of initiation fees and dues in favor of the Intervenor have been signed by employees. Since August 8, 1953, the Intervenor and the Employer have held 9 meetings at which the Intervenor presented grievances and negotiated wage rates for new classifications. Most of the facts set forth above were previously brought to the Board's attention on August 21, 1953, when the UAW-CIO filed a motion with the Board alleging that the Intervenor had changed its name and had affiliated with the Petitioner, and requesting that the April 1952 certification be amendedby sub- stituting the name of the UAW-CIO and its affiliated Local 1269 for that of the Intervenor. On October 16, 1953, the Board denied the UAW-CIO's motion, on the ground that the UAW-CIO was improperly seeking to resolve a question concerning repre- sentation by amending a previously issued certification.3 3 Weatherhead Company of Antwerp, 106 NLRB 1266. On December 18, 1953, the Board denied, without prejudice to the renewal thereof in the instant proceeding, the UAW-CIO's motion to reconsider theDecision in Case No. 8-RC-1581, or in the alternative to consolidate Case No. 8-RC-1581 with the instant proceeding. The latter motion was in fact renewed at the hearing herein. For the reasons indicated in the text, the motion is again denied. 720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On October 30, 1953, the instant petition was filed. The Em- ployer and the Intervenor contend that their contract is a bar to a present determination of representatives. The Petitioner contends, in substance, and in the alternative that: (1) The February 1953 contract between the Employer andthe Intervenor is a bar to an election, but that the Petitioner should be certi- fied without an election because "the Intervenor attempted a schism after a lawful affiliation of the Independent with the UAW"; and (2) an election should be presently directed, from which the Intervenor should be excluded because the Intervenor is defunct. The Intervenor is the certified bargaining representative of the employees covered by the contract, which it negotiated and executed. It has processed grievances and negotiated wage rates for new classifications; ithas an active bank account; employees have not revoked checkoff authorizations, and authorization cards in favor of the Intervenor are still being signed by em- ployees; the Employer has continued to recognize it as the ex- clusive bargaining representative. We find therefore that the Intervenor is still a functioning organization- -ready, willing, and able to administer the 1953 contract. Under these circum- stances, we find, contrary to the contention of the Petitioner, that the Intervenor is not defunct, and that there is no confusion as to the identify of the bargaining agent recognized by the Em- ploye r. 4 Where some employees are dissatisfied with their repre- sentation or with the bargain made by their representative, and desire to change such representation at a time generally con- sidered inappropriate by the Board, the Board has held that the mere fact that they have expressed that dissatisfaction in for- malized action is not by itself sufficient reason for making an exception to the normal contract-bar rule. Before applying the "schism" doctrine, the Board must be convinced that the bar- gaining relationship is so confused that no stabilizing purpose would be served by applying the contract-bar rule, and the Board will notpermitthe "schism" doctrine tobe used to facil- itate raiding by a rival union. Under the circumstances herein, we are convinced and find that the Petitioner actively assisted and directed dissident employees in their efforts to affiliate with the UAW-CIO.5 Moreover, in view of the Intervenor's con- tinued existence, and its active administration of the 1953 con- tract, the situation herein does not warrant a departure from the usual contract-bar rule. In view of the foregoing, we find that the 1953 contract be- tween the Employer and the Intervenor is a bar to an election at the present time. Accordingly, we shall dismiss the petition. [The Board dismissed the petition.] 4See A O. Smith Corporation, 107 NLRB 278; The Budd Company, 107 NLRB 116. 5 See Barton Distilling Company and Barton Warehouse and Distilling Corporation, 106 NLRB 361.