Kearney & Trecker Corp.

KEARNEY & TRECKER CORPORATION 69 30, 1955, counsel for International Union , United Automobile, Air- craft and Agricultural Implement Workers of America , UAW-CIO, filed a motion for reconsideration of its motion to intervene herein with three employee affidavits attached, and, upon reconsideration, it be accorded a place on the ballot for the directed election. On April 4, 1955, the Petitioner filed opposition thereto. The Board having duly considered the matter, IT IS HEREBY ORDERED that the said motion for reconsideration be, and it hereby is, denied; and IT Is ]?URTIIER ORDERED that the aforesaid Decision and Direction of Election be, and it hereby is, amended by striking the language contained in footnote 3 in its entirety and substituting therefor the following language : ' For the reasons set forth in Walterboro Manufacturing Cor- poration, 106 NLRB 1383, we find that the watchman-janitor is a guard within the meaning of the Act and , accordingly, we exclude him from the unit. By direction of the Board : OGDEN W. FIELDS, Associate Executive Secretary. Kearney & Trecker Corporation and Local #1083, United Auto- mobile, Aircraft and Agricultural Workers of America, CIO, Petitioner Kearney & Trecker Corporation and Local #1083, United Auto- mobile, Aircraft and Agricultural Workers of America, CIO, Petitioner. Cases Nos. 13-RC-3837 and 13-RC-392. April 11, 1955 DECISION AND ORDER Upon separate petitions filed under Section 9 (c) of the National Labor Relations Act, as amended, a consolidated hearing in the above- entitled cases was held before Louis Libbin, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.' On March 1, 1955, the Board, at Washington, D. C., heard oral argument in which all parties participated. 1 After the close of the hearing the Petitioner and the Employer filed separate motions to reopen the record to introduce certain posthearing correspondence with respect to the closing of a commissary and the discontinuance of certain welfare benefits , as more fully set forth hereinafter . No objection was made to these motions. Under the circumstances, the motions are hereby granted and the fattR established by such correspondence are hereby made part of the record in this proceeding. 112 NLRB No. 16. 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Board has considered the entire record, the briefs of the parties,. and the oral argument in this proceeding, and 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 .2 3. A question affecting commerce exists concerning the representa- tion of certain employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.3 4. As to the direction of an election : The petitioner, Local #1083, was certified by the Board on October 31, 1951, as the result of an election conducted on September 12, 1951.' The election was conducted between two factions, Local #1083 and the EIU, which had evolved out of a schism within the EIU, the in- cumbent union which had a contract with the Employer. As indi- cated, the election was won by Local #1083 which, under a claim of successorship to the Union, had seized the union assets. Thereafter, the Employer refused to bargain with Local #1083 on the ground that the Board's certification was invalid. Pursuant to an unfair labor practice proceeding, on December 31, 1952, the Board, rejecting the Employer's contentions attacking the validity of the certification, issued an order directing the Employer to bargain with Local #1083.5 On February 26, 1954, the United States Court of Appeals for the Seventh Circuit set aside the Board's order.' The court held that "an election should not have been called or, in any event, . . . the Board should have refused to certify the results of an election. . . ." on the ground that Local #1083's "conduct was such as to preclude the inalienable right of employees to select their bargaining representa- tive in an election free from coercion and intimidation." In arriving at this conclusion, the court relied principally on the following considerations : 1. The fact that Local 1083, pretending to act as a successor to, EIU, seized all the property, money, books and records of EIU and deprived its members of all access thereto or benefits there- from ; 2. That funds, representing the profits of a commissary oper- ated on company property by the ETU which were used for pay- ment of sick and death benefits to members of EIU, were taken 2 Employees Independent Union, affiliated with Confederated Unions of America, herein-- after called the EIU, intervened on the basis of a contract interest 3 The Board ieJects various contentions of the Employer and the EIU to the effect that no question concerning representation exists without detailing the reasons for rejecting- them as we shall dismiss the proceeding on other grounds, hereinafter set forth. 4 95 NLRB 1125 (direction of election) ; 96 NLRB 1214 (certification). 6101 NLRB 1577 6 Kearney if Pt ecl.er Corp v. N L R B , 210 F 2d 852, cert. denied 348 U. S 824_ KEARNEY & TRECKER CORPORATION 71 over, together with the operation of the commissary, by Local 1083 "which refused to honor sick benefit claims from members of EIU unless and until they affiliated with Local 1083." Thereafter, on March 11, 1954, and on May 6, 1954, Local #1083 :filed its petitions for a new election in the instant proceeding.' After the decision of the court of appeals, referred to above, the Employer recognized the EIU as the exclusive representative of the =employees involved here, and, on July 2, 1954, while the petitions in the instant case were pending, the Employer and the EIU executed a new contract, effective July 3, 1954, and extending to July 2, 1957. On July 22, 1954, before the hearing in this proceeding, Local #1083 distributed notices to all the employees involved here advising their that "If you are a member in good standing of either . . . Lo- 'cal 1083 . . . or Employees Independent Union CUA or on check- off, you will be entitled to receive sick and death benefits. . . ." 'On August 7, 1954, a few days before the hearing in this proceeding began, Local #1083 executed a trust agreement with the First Wiscon- sin Trust Company, Milwaukee, Wisconsin, as trustee, under which Local #1083 placed in trust, in substance, the fixtures and equipment of the union office and commissary and the securities which had been in the possession of EIU when the factional dispute arose.$ Under the terms of the trust, the trustee will deliver the trust property to the union certified by the Board after an election, but if no election is ordered, the trust property is to be returned to Local #1083. On September 14, 1954, during the course of the hearing on the petitions in this proceeding, Local #1083 made an offer to return the operation of the commissary to the Employer under certain specified conditions. Shortly after the close of the hearing, the Employer re- jected the offer and gave Local #1083 notice to vacate the commissary premises; thereupon, Local #1083 ceased operation of the commis- sary, removed all commissary property from plant premises, and dis- -continued payment of all welfare benefits to all employees, without regard to their union affili ation. The petitioner contends that circumstances have so changed since the 1951 election as to permit a fair and free election now. We do not agree. 7 In view of our decision herein , we need not pass on contentions of the Employer and EIU (1 ) that the first petition was pi emature ; (2) that the petitions were piocedurally defective , (3) that the petitions should not have been consolidated ; and (4) that the petitioner was pursuing inconsistent remedies in seeking certiorari from the Supreme Corn t while pressing the instant petitions For purposes of this decision , we assunme, without deciding, that these contentions are without merit 8 The corpus of the trust does not include an unknown portion of $14,241 41 in cash and in bank accounts taken at the time of the seizure of assets . In addition , Local #1083 owes $]9,75707, representing advances from the comniissaiy I unds for use in the normal opera- tion of Local #1083 Those sunis either have been expended or ate in the hands of Local #1083. 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In setting aside the Board's order, the court of appeals recognized that the Board had discretion to hold an election during the existence of a collective-bargaining contract where, as here, an organizational schism had occurred among the employees ; but, the court held that Local # 1083's conduct in seizing the union assets and announcing that only its members were eligible for payment of sick benefits therefrom was improper and had a coercive impact which prevented the em- ployees from exercising a free choice at the polls, thereby invalidating the election and the certification issued on the basis thereof. The court also recognized that the question of ownership of the seized union property had been placed in litigation in a Wisconsin State court, and stated that it, the court of appeals, did "not intend to prejudge (that case)." The court was of the view, however, that this factor did not preclude it from determining "what effect, if any, the . . . possession, control and use by Local 1083 (of union prop- erty) was reasonably calculated to have upon (employees participat- ing in) an election." Upon this question, the court ruled that Local #1083 was entitled to possession of union funds and to serve notice, that its members exclusively might benefit from them only if Local #1083 were a successor to EIU. Based on the evidence relating to the schism movement, the court concluded that Local #1083 was not a suc- cessor and that the EIU hence remained the owner of all union prop- erty seized. Viewed in this light, the conduct of Local #1083, in, the opinion of the court, "was coercion, open, direct, and no doubt effective." The Supreme Court of the United States denied review of the de- cision of the lower court. Consequently, the holding of the court of appeals stands as the governing law in this case. Accordingly, all we are called upon to decide now is whether, in the light of the court's opinion, the circumstances are sufficiently changed to make a free election possible. The disputed commissary, which was seized by Local #1083, no longer exists as a going concern. It has been liquidated by the Peti- tioner, after its proceeds for over 3 years were used exclusively for its own benefit. It is clear and undisputed that legal disposition of the dispute over the assets of the EIU, which was a major concern to the court, has not yet been settled. The funds originally seized by Local #1083 have been substantially dissipated for partisan use to the advantage of that organization. The trust agreement, now ap- parently urged by Local #1083 as a complete restoration of the 1951 status quo, was a totally unilateral act, neither participated in nor con- sented to by the EIU. We cannot agree that this attempt to dispose of the title to the remaining assets clears the air. Indeed, since it purports to make ownership of the funds turn on the outcome of the election, the trust agreement, instead of removing the dispute over KEARNEY & TRECKER CORPORATION 73 title from the representation dispute, makes the corpus of the trust a stake in this election. Government-supervised elections are conducted under the statute for the purpose of selecting a collective-bargaining representative, not to dispose of cash stakes. For these reasons, and on consideration of the entire record now before us, we cannot find, as the Petitioner contends, that the general circumstances which the court deemed intolerable for a free and un- coerced election, have been sufficiently altered to satisfy the court's requirements. We shall, therefore, dismiss the petition. As the Board stated in its original Decision and Direction of Elec- tion in 1951, and like the circuit court in its opinion, we are not to be taken hereby as passing judgment upon the rival claims of the EIU and of Local #1083 to the funds and the other assets originally be- longing to the bargaining representative before 1950. [The Board dismissed the petition.] MEMBER PETERSON, dissenting : I do not agree with my colleagues that the petitions in this proceed- ing should be dismissed. The court of appeals did not determine title to the seized assets. It expressly refrained from doing so, explicitly stating that it was not prejudging the pending litigation in the Wisconsin courts where title to the property is now in issue. The court of appeals further stated, "It is possible that an election might have been properly directed and held if the Board had made provision prior to the election for the elimination of the basis upon which Local 1083 was enabled to exert pressure and coercion upon the employees." Consonant with the decision of the court of appeals, the Board may properly direct a new election, provided the coercive conditions which existed are eliminated. In my opinion, the steps already taken by Local #1083 have eliminated the coercive conditions found by the court to have previously existed. Thus, Local #1083 has abandoned its discriminatory policy in the payment of welfare benefits. Under the terms of the trust created by Local #1083, the trust property will be returned to EIU in the event the employees select it as their bargain- ing representative. If EIU loses the election, nonetheless, title to the property will be determined by courts of competent jurisdiction. Un- like my colleagues, I perceive no valid reason why an escrow arrange- ment of this sort made in good faith precludes the conduct of an election. As circumstances have so changed as to permit the employees to make a fair and free choice of a bargaining representative now, I would direct a new election. MEMBER LEEDOM took no part in the consideration of the above Decision and Order.