American Factors, Ltd.

AMERICAN FACTORS, LTD. (HILO BRANCH) 199 (A) All employees of the Texas Company's Tampa, Florida, Sales Terminal, excluding office clerical employees , salesmen, professional employees , guards, and supervisors as defined in the Act. (B) All office clerical employees of the Texas Company's Tampa, Florida, Sales Terminal, including senior clerkMcAtee and the dispatcher , but excluding the zone manager ' s steno- clerk, all other employees , guards, and supervisors as defined in the Act. [Text of Direction of Elections omitted from publication.] AMERICAN FACTORS, LTD. (HILO BRANCH), AMERICAN FACTORS, LTD. (KONA BRANCH), HILO TRANSPORTA- TION & TERMINAL CO., LTD., HONOLULU IRON WORKS d/b/a HILO IRON WORKS and FEDERATION OF HAWAII WORKERS ( IND.), Petitioner . Cases Nos . 37-RC-163,37-RC- 164, 37-RC-165, and 37-RC-166. April 17, 1953 DECISION AND DIRECTION OF ELECTIONS Upon petitions duly filed under Section 9 (c) of the National Labor Relations Act, a consolidated hearing was held before A. L. Wills, 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 Employers are engaged in commerce within the mean- ing of the Act. 2. The labor organizations involved claim to represent cer- tain employees of the Employers. 3. Questions affecting commerce exist concerningthe repre- sentation of employees of the Employers within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. The Intervenor urges that the petitions herein are barred by its contracts with the Employers. The Employers took no position on this issue. When the petition in Case No. 37-RC-166 was filed on January 9, 1953, the proposed unit was covered by a contract between the Intervenor and Hilo Iron Works having an ex- piration date of January 27, 1953, and a 60-day automatic t The Intervenor , Miscellaneous Manufacturing and Service Workers , International Long- shoremen's and Warehousemen's Union , Local 155, requested, prior to the hearing , that the hearing officer disqualify himself because of alleged bias and, at the hearing , sought a con- tinuance on the ground that this request was still pending. We find that the hearing officer properly refused to disqualify himself or to grant the continuance . See Angelus Chevrolet Co., 88 NLRB 929. Moreover , we reject theIntervenor 's contention , advanced in its brief, that the hearing officer 's rulings at the hearing reflect bias or hostility toward the Intervenor. 104 NLRB No. 22. 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD renewal clause. However, on November 17, 1952, before the Mill-B date, the Intervenor notified Hilo Iron Works of its desire to change the contract.2 Although the Intervenor sub- mitted a proposed draft of a new contract, Hilo Iron Works discontinued negotiations pending Board resolution of the questions concerning representation which had been raised, and no new contract has been executed. The Intervenor argues in its brief that its notice was ineffective to prevent automatic renewal of the contract because no substantial changes were proposed and efforts to negotiate have been abandoned. We disagree. In accord with settled policy, we find on these facts that the notice alone forestalled automatic renewal of the contract, and that the petition was, therefore, timely filed with respect to the contract termination date.' The Intervenor's contracts with American Factors, Ltd., Hilo Branch and Kona Branch, herein referred to as Hilo and Kona respectively, both have termination dates of June 30, 1953, and its contract with Hilo Transportation & Terminal Co., Ltd., herein called Hilo Transportation, has a termination date of December 31, 1953. With respect to the contract-bar con- tentions in these three cases, the Petitioner avers that a schism has occurred and that the Intervenor has been dissolved. The Intervenor disputes the occurrence of a schism and the legality of the attempted dissolution. The Mill-B dates in the Hilo and Kona contracts will become operative in less than 30 days. We find, therefore, that no contract bars exist in Cases Nos. 37-RC-163 and 37-RC-164. There remains the question whether the Intervenor's contract with Hilo Transportation is a bar to the petition in Case No. 37-RC-165. The pertinent facts are as follows: The Intervenor, comprising employees in separate units at the plants of Hilo, Kona, Hilo Transportation, Hilo Iron Works, and Flintkote Company--Canec Division, herein called Flint- kote,' through its executive board, scheduled a special meeting for December 23, 1952, for the purpose of deciding whether or not to disaffiliate from International Longshore- men's and Warehousemen's Union, herein called ILWU.5 About 5 days before the meeting , unit heads were instructed by the Intervenor's business agent to notify the members of this meeting.' Testimony of various individuals delegated to carry out these instructions and of the business agent himself shows that notice was given orally to as many members as possible 2 This notice was sent by the Intervenor's business agent who, together with the members of the Intervenor's negotiating committees in the respective plants . had negotiated and signed the contracts with the Employers involved herein. 9Shipowners ' Association of the Pacific Coast and its members Companies , 100 NLRB 1250. 4Flintkote has a contract with the Intervenor but is not involved in the instant proceedings. 6 As background for this action, the record shows that dissatisfaction with ILWU leadership existed. On August 8, 195Z a special meeting was held for the purpose of amending the Inter- venor 's constitution by deleting therefrom the prohibition against dissolution "as long as there are 10 members in good standing." The minutes of the meeting show that the amendment carried unanimously. 6 The members at the Kona plant were merely informed that the meeting was to take place as they never attended general membership meetings because of the distance of the meeting place from this plant. AMERICAN FACTORS, LTD. (HILO BRANCH) 201 in each unit as well as by posting in the usual places.? At the December 23 meeting, attended by an estimated 3008 of the total membership of approximately 350-375, after the grounds for dissatisfaction with ILWU were discussed, motions to disaf- filiate from ILWU, to dissolve the Intervenor, and to establish the Petitioner and transfer funds to it were carried unanimously by standing vote, and it was decided to retain temporarily the same officials in the new union.9 ILWU notified Hilo Iron Works that it had suspended former officials and executive board members of the Intervenor pending trial, and that it had designated official representatives of the Intervenor for the purpose of administering its contract with Hilo Iron, Works. There is nothing in the record, however, to indicate that any such notice was sent to Hilo Transportation, or any notice that the Intervenor was ready and able to ad- minister its contract with Hilo Transportation. Subsequent to the disaffiliation meeting, it appears that the Petitioner informed the companies with which the Intervenor had contracts of the action taken, and requested recognition, which the Employers involved herein refused to grant. On January 9, 1952, the Petitioner filed the petitions herein. As the Intervenor executed and administered the contract covering the Hilo Transportation unit and was the bargaining representative of the employees in that unit, as the member- ship of the Intervenor in that unit participated in the disaf- filiation action, and as it does not appear that since the dis- affiliation the Intervenor has been ready and able to administer the contract, we conclude that confusion exists concerning the continued functioning of the Intervenor as bargaining repre- sentative of employees in the unit covered by its contract with Hilo Transportation. Accordingly, without deciding whether the Intervenor is defunct, we find that a schism exists in the Inter- venor, and therefore that its contract with Hilo Transportation is not a bar.lo 7 While the posted notice at the Hilo plant specified only that the meeting was "very impor- tant." and no notice was posted at the Hilo Transportation plant, these units have but 39 and 30 employees , respectively, and oral notification was given to all individual members who could be reached. $ An effort was made to have the members present at the meeting sign the attendance roll in accord with the usual procedure, but it was found impracticable to do so because of the small size of the meeting place and the unusually large number in attendance. 9The members in the Kona unit subsequently met and concurred in the action taken at the December 23 meeting. The Intervenor argues that as it is possible that the disaffiliation vote was carried by mem- bers not employees of the Employers involved herein, no schism has been shown. We find no merit in this argument because the December 23 meeting was a general membership meeting and, except for the numbers in the unit at the Kona plant who, as indicated above, concurred separately, the decisions made thereat were binding upon the entire membership. IoCf. Bryant Finishing Co., Inc., et al., 101 NLRB 42$ Erwin Mills, Inc., (Neuse Plant), 100 NLRB 267; Radionic Products Division, Radionic Controls. Inc., 91 NLRB 595; Boston Machine Works Company, 89 NLRB 59. The situations in Allied Container Corporation, 98 NLRB 580, and Bendix Products Division, 98 NLRB 1180, relied upon by the Intervenor in its brief, are clearly distinguishable from the facts herein. 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The Employers and the Petitioner were in agreement as to the appropriate units, while the Intervenor took no position." Accordingly, we find that the following groups of employees constitute units appropriate for collective bargaining within the meaning of Section 9 (b) of the Act: (1) All employees of Hilo Iron Works at its Hilo, Hawaii, plant, excluding office clerical employees, professional employees, guards, working foremen, and all other supervisors as defined in the Act. (2) All employees of American Factors, Ltd. (Hilo Branch) employed in its warehouse, lumberyard, carpenter shop, and lumber mill at Hilo, Hawaii, including truckdrivers and Ross carrier operators, but excluding office clerical employees, professional employees, guards, and supervisors as defined in the Act. (3) All employees of American Factors, Ltd. (Kona Branch) employed in its warehouse, lumberyard, carpenter shop, and coffee mill at Kona, Kailua District, Hawaii, excluding office clerical employees, professional employees, guards, and super- visors as defined in the Act. (4) All employees in the trucking department of Hilo Trans- portation & Terminal Co., Ltd., at Hilo, Hawaii, excluding office clerical employees, professional employees, guards, and supervisors as defined in the Act. [Text of Direction of Elections omitted from publication.] 11 At the hearing, the Petitioner was permitted to amend its unit request in Case No. 37-RC- 166 to exclude two working foremen as supervisors . As these individuals appear to have the power to discharge and discipline employees , we shall exclude them. It appears that the proposed units are the same as those covered in the Intervenor's con- tracts with the Employers. UNITED STATES PIPE AND FOUNDRY COMPANY and IN- TERNATIONAL MOLDERS & FOUNDRY WORKERS UNION bF NORTH AMERICA, AFL, Petitioner. Case No. 10-RC- 682. April 17, 1953 SUPPLEMENTAL DECISION On March 13, 1946, United Steelworkers of America, CIO, hereinafter referred to as the Steelworkers, was certified' as representative for a unit of all production and maintenance employees at the Employer's Chattanooga, Tennessee, plant, including pattern-shop helpers, pattern storage men, laborers, and carpenters who work under the supervision of the pattern- shop foreman. International Molders and Foundry Workers, hereinafter referred to as the Molders, was certified as repre- t After an election held pursuant to the Board's Decision and Direction of Election in Case No. 10-RC-1593, 65 NLRB 979. It was again certified as representative for the same unit after a consent election in 1947, in Case No. 10-RC- 2530. 104 NLRB No. 13.