Sylvania Electric Products Inc.

SYLVANIA ELECTRIC PRODUCTS INC.- 357 Relations Board hereby orders that the complaint issued herein against the Respondent, The Kroger Co., Wabash, Indiana, be, and it hereby is, dismissed. CHAIRMAN HERZOG and MEDIBER STYLES took no part in the consid- eration of the above Decision and Order. SYLVANIA ELECTRIC PRODUCTS INC. and INTERNATIONAL UNION OF ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA, CIO, PETITIONER. Case No. 1-RC-2533. July 24, 1952 Decision and Order • Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Leo J. Halloran, 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 Petitioner and the Intervenor, Local 1502 International Brotherhood of Electrical Workers, AFL, are labor organizations claiming to represent employees of the Employer. 3. No question affecting commerce exists concerning the represen- tation 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 Petitioner seeks a unit of production and maintenance em- ployees at the Employer's plant at Ipswich, Massachusetts. The Intervenor and the Employer contend that their current contract operates as a bar to the present petition. The Petitioner alleges that the contract is not a bar (1) because it contains an illegal union security clause, and (2) because of a schism within the.Intervenor's local organization.' 1 The Petitioner indicated at the hearing that there may be a third ground for holding the current contract invalid, namely, the contention that the contract is invalid unless the Intervenor was in compliance on the date of the execution of the contract and for an entire year prior thereto. There is no merit in this contention The compliance record of the Intervenor shows that it was in compliance on June 13, 1951, the date of execution of the contract, and that it had been notified of its achievement of compliance by the Regional Office of the Board on September 21, 1950 , which was within 1 year of such date. The Mellin-Quincy Manufacturing Co., case, 98 NLRB 457, therefore does not apply. 100 NLRB No. 50. 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. The union-security clause On June 13, 1951, the Employer and the Intervenor entered into a contract to take effect June 1, 1951, until May 31, 1953. This con- tract contains the following union-security clause: All employees shall be required to become and remain mem- bers in good standing of the Union, on or after the thirtieth day following the effective date of this Agreement. Any new em- ployees shall receive at least the minimum wages under this Agree- ment and shall be required (as a condition of employment) to make application for membership in the Union thirty days from the date of employment at the expiration of the probation period referred to in Art. 5 Sec. 4. (30 days) The petitioner contends that the above clause is illegal because it fails to give employees hired between June 1 and 13, 1951, the re- quired 30 days in which to join the Union. We do not agree. Even if we assume, contrary to the contentions of the Employer and the Intervenor,' that the effective date for the purpose of apply- ing the union-security provision was June 1, 19.51, rather than June 13, 1951, all employees hired between the two dates were new employees under the then existing contract, which in effect gave all new employees the required grace period.3 As to those already employed on June 1, 1951, they were presumably union members,' or if not union members, all those hired since the execution of the 1948 contract had been given 30 days in which to become union members under a contract in existence on the date of their employment .5 We find, therefore, no necessity for applying the principle of the Kress case,6 where the Board held that the grace period must be computed from the date of execution of the contract rather than from the effective date of the agreement, where such effective date is made retroactive from the date of execution.' We therefore find no merit in the Petitioner's first contention. T The Intervenor and Employer, claiming an alleged ambiguity as to the effective date of the contract , take the position that the effective date for the purpose of the application of the union -security clause is the date of execution , June 13, 1951. 8 The 1950 contract which expired June 29, 1951 , gave new employees the same grace period as the current contract. k Those employees hired prior to the 1948 contract were covered by the Intervenor's 1948 contract where a closed-shop provision , which was valid under the Act as it then existed, effectively confined employment to union members. 8 The Intervenor's contracts of 1948, 1949 , and 1950 contained the same union-shop clause and contained the same provision as to new employees as the current contract. 8 Kress Dairy Inc., 98 NLRB 369. 4 Because of our ruling herein , we find no necessity for considering the parole evidence presented by the Employer at the hearing to resolve any ambiguity as to the Intent-of the parties with reference to the effective date for the application of the union -security clause. SYLVANIA ELECTRIC PRODUCTS INC. 359 2. The alleged schism About 2 months following the execution of the current contract, Petitioner's field representative was invited to come to Ipswich for the purpose of explaining the CIO to a group of employees who were dissatisfied with the Intervenor. Several meetings were held at the home of an employee of the Salem plant of the Employer, which is' represented by the Petitioner. At these and later organizational meetings held at Ipswich and attended by a considerable number of intervenor members, the Petitioner's field representative explained that, in order to obtain a Board election, it was necessary to create a schism and obtain a vote of disaffiliation at a meeting called by the Intervenor for this purpose. Pursuant to this advice, request was made to the business agent of the Intervenor for such a meeting, which was denied. The field representative then suggested that the dis- sidents call such a meeting on their own. A committee for the CIO was formed which distributed leaflets to employees. Some CIO lit- erature was posted on the bulletin,boards but this was immediately re- moved by adherents of the Intervenor. On the morning of November 15, 1951, leaflets, announcing the dis- affiliation meeting, were distributed to the employees as they entered the plant for work. The leaflets were supplemented by a sound truck which moved around the plant announcing the time and place of the meeting. The vice president of the Intervenor was designated by the field representative to preside at the meeting. A prepared resolu- tion to disaffiliate from the Intervenor and affiliate with the Petitioner was presented, seconded, and adopted. The Petitioner claims that 196 employees voted for the resolution and none against. On November 20, 5 days later, the regular monthly meeting of the Intervenor took place, attended by- some 100 members including the vice president of the Intervenor, who had presided-over the November 15 meeting. Al- though the dissidents, in order to obtain control of the proceedings and promote disaffiliation, had attended these regular meetings, they were not successful in accomplishing either objective or preventing the adoption of a vote of confidence for the Intervenor. At the hearing the parties stipulated that since the disaffiliation meeting, the Company has continued to recognize the Intervenor, to bargain with it, to deal with it concerning grievances and matters of general concern to the employees, to check off dues for the Intervenor, and that the steward, officers, and executive board of the Intervenor have continued to serve and represent the employees. It was also testified that no attempt has been made to substitute CIO officers for those of the Intervenor, nor has the CIO group taken any action to 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD select officers or to replace the stewards who have served prior to the disaffiliation, No attempt has been made to take over the treasury of the Intervenor or to deduct dues for the CIO." No charter has been obtained from the- CIO for the dissatisfied group. The Intervenor has continued to hold regular meetings and none of the employees, including the vice president, has resigned from the Intervenor. The petitioner group has no officers and holds no regularly scheduled meet- ings. The Petitioner contends that the foregoing events have given rise to such confusion and uncertainty with respect to the status of the bargaining representative at the Employer's plant as to warrant our directing an election at this time under the "schism doctrine" as enun- ciated in the Boston Machine case.9 However, in this case, as in the recent Phoenix Manufacturing case,20, the circumstances are not such as to persuade us that an exception to the contract-bar rule would serve any purpose, other than to permit a dissident group of members to express their dissatisfaction with the bargain made by the Intervenor holding the contract."- Thus, as stated above, the Intervenor is currently functioning as the reorgan- ized bargaining representative of the Employer's employees. The mere holding of a-meeting 12 at the suggestion of a field representative of the Petitioner and the action taken by the dissident group on No- vember 15, 1951, are not, in our opinion, sufficient basis for finding that the Local is defunct, or for applying the schism doctrine as enun- ciated in the Boston Mae hine case 13 We therefore conclude that-the current contract between the Em- ployer and the Intervenor constitutes a bar to an election at this time. As 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, we shall dismiss the petition.. Order IT IS HEREBY ORDERED that the petition filed herein be, and it hereby is, dismissed. MEMBER STYLES took no part in the consideration of the above Decision and Order. The CIO did request that the Employer hold the dues in escrow until the outcome of this proceeding Y Boston Machine Works, 89 NLRB 59. 10 Phoenix Manufacturing Company, 98 NLRB 803. 11 West Steel Casting Company, 98 NLRB 153. 12 Phoenix Manufacturing Company, supra. 1S Boston Machine Works, supra.