Swift and Co.

60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD never been any bargaining representative for any of the employees in the classifications involved in the Du Pont offices. By peremptorily merging the two groups, in its direction of election the majority pre- cludes the Du Pont employees from a self-determination election. In the light of the absence of integrated control of labor relations and supervision, the absence of a bargaining history for the Du Pont employees, a current collective-bargaining agreement covering the Bennett employees, and the fact that the Board has not in the past expressed any policy favoring systemwide units in the brokerage busi- ness,3 which, concededly, is not a public utility nor comparable to a public utility, I perceive no valid basis for the majority's unit deter- mination, and would therefore dismiss the petition. CHAIRMAN FARMER and MEMBER LEEDOM took no part in the con- sideration of the above Decision and Direction of Election. s Uhlmann Grain Company, 50 NLRB 76 , decided more than 12 years ago, and relied on by the majority does not express a Board policy favoring systemwide units in the broker- age business . As the Board's decision in that case makes clear, it was decided on the factual circumstances therein present , and not on any Board policy as such with respect to the brokerage industry. A. C. Lawrence Leather Company, a Division of Swift and Com- pany, Petitioner and International Fur and Leather Workers Union of the United States and Canada and Its Local 33 A. C. Lawrence Leather Company and Local 33, Leather Work- ers Organizing Committee, CIO, Petitioner. Cases Nos. 1-RM- 205 and 1 RC-3982. July 7,1955 DECISION AND DIRECTION OF ELECTION Upon petitions duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Joseph Lepie, hearing offi- cer. 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. At the hearing, over the objection of the petitioning Union, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL, and its Local 33-L were permitted to intervene based upon ail alleged contractual relationship with the Employer covering the i Under the circumstances of this case , as noted herein , we find without merit the Inter- venor's contention that the instant petitions should be dismissed until such time as the CIO-AFL "no raiding" agreement is fully processed . As the record and briefs in this proceeding adequately present the issues and the positions of the parties, the Intervenor's request for oral argument before the Board is hereby denied. 113 NLRB No. 10. A. C. LAWRENCE LEATHER COMPANY 61 employees here involved. Subsequent to the hearing, the Petitioner Union withdrew its objections to the intervention. The Intervenor, hereinafter referred to as Local 33-L, Meat Cut- ters, would not stipulate that the Leather Workers Organizing Com- mittee, CIO, or Local 33, Leather Workers Organizing Committee, CIO, is a labor organization within the meaning of the Act. How- ever, in view of the fact that the former is a department within the CIO, devoted to organizing employees for collective-bargaining pur- poses, and that both exist for the purpose of bargaining collectively with employers in regard to wages, hours, and working conditions, we find them to be labor organizations within the meaning of Sec- tion 2 (5) of the Act, and that they claim to represent certain em- ployees of the Employer.' 3. Local 33-L, Meat Cutters, contends that, in view of an alleged merger between International Fur and Leather Workers Union of the United States and Canada, hereinafter referred to as IFLWU, and the Amalgamated Meat Cutters and Butcher Workmen of North America, AFL, hereinafter referred to as Meat Cutters, it has suc- ceeded as party to an existing contract, effective November 17, 1954, to November 17, 1955, between the Employer and IFLWU and its A. C. Lawrence Leather Workers Union, Local 33, hereinafter referred to as Local 33, IFLWU, and that said contract constitutes a bar to this proceeding. The petitioning Union, Local 33, Leather Workers Organizing Committee, CIO, hereinafter referred to as Local 33, CIO, asserts that the contract is not a bar because of a schism within the ranks of the contracting Union. The Employer is neutral on this issue.' Pursuant to a resolution adopted by the CIO executive board on June 15, 1950, the CIO convention expelled the International Fur and Leather Workers Union in November 1950 because of alleged communistic domination.4 In September 1951, Local 33, which, prior thereto, had been independent, affiliated with the IFLWU. Throughout the year 1954, Local 33, IFLWU and its officials, mani- fested on various occasions a rising sentiment against the alleged com- munist infiltration and domination at the international level. Thus, on January 9, 1954, at a IFLWU district conference in Boston, Local 33, IFLA1TU, voted against a resolution to give moral and financial support to Ben Gold, then president of IFLWU and under indictment for executing a false non-Communist affidavit. In the spring of 1954, Wlodyka, business agent of Local 33, IFLWU, contacted, and arranged a meeting with, Thompson, New England director of the CIO, and 9 See Texas Hardwood Manufacturing Company, 73 NLRB 356, and Twentieth Century- Fox Film Corporation, 96 NLRB 1052 3 In view of our determination herein , we find it unnecessary to pass upon the Inter- venor 's assertion that it has succeeded as party to the contract under the merger. 6 See A. C. Lawrence Leather Company, 108 NLRB 546 at 547. 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD current director of the CIO Organizing Committee.5 Subsequently, at the May 1954 IFLWU convention, Local 33 delegates, pursuant to a unanimous vote at the April 5,19.54, regular monthly meeting of Local 33, voted against the support of President Gold. Subsequently, in August 1954, the executive council of Local 33, IFLWU, drafted and distributed to the membership an eight-point plan expressing Local 33's anti-Communist views and specifying a program designed to "clean up" the Union. At the IFL«TU district conference on Novem- ber 6, 1954, this program was presented by Local 33 officials and ac- cepted by the conference for the purpose of presenting it to the IFLWU convention the following January. The increasing anti-Communist sentiment within the IFLWU has also been noted by the CIO which has attempted to take advantage of such sentiment for the purpose of extending CIO membership. Thus, since the IFLWU expulsion from the CIO in 1950, it has been CIO policy to bring back into its fold, without the international leadership, local IFLWU unions. At the CIO convention in December 1954, this policy gave rise to the formation of the CIO Leather Workers Or- ganizing Committee, which was officially established on January 14, 1955. Since that time, the Organizing Committee, through its rep- resentatives, Thompson and O'Keefe, has been active in advocating Local 33's secession from the IFLWU and its affiliation with the CIO.6 Throughout this same period the Meat Cutters and the IFLWU, through their respective representatives, have also been active among Local 33 members in attempting to obtain Local 33's approval of a proposed merger agreement between the IFLWU and the Meat Cutters. The proposed merger between the IFLWU and the Meat Cutters did not, however, meet with the enthusiastic approval of Local 33, IFLWU. At the regular meeting of Local 33, IFLWU, on January 3, 1955,' after a motion to secede from the IFLWU had been tabled, the membership voted "not to do anything" until after the scheduled IFLWU January convention, and to instruct delegates, subsequently nominated, to vote against the IFLWU-Meat Cutters proposed merger at the convention. On January 20-22, at the IFLWU convention, ° Mr Thompson testified that this meeting was held for the purpose of discussing Local 33's affiliation with the CIO in oidei to get out fioni under Communist domination, and that, at that time, Wlodyka stated that the Local 33 membei ship would like to get out from under the Communist leadeiship of the IFLWU, suggesting that the CIO conduct a campaign for this purpose wlodyka admitted having consulted with Thompson, but denied having made any I eference to C 1O afliliation °As pait of the CIO organizational diive, at various times during the first few months of 1955. O'Keefe, the vice chairman of the CIO Organizing Committee, met with groups of membei s and officers of Local 33, IFLWU, in an attempt to persuade them to take part in a secession fiom the IFLWU and an affiliation with the CIO At such meetings, O'Keefe advised the group that a transfer of affiliation from the IFLWU to the CIO would be legal 7 Unless otherwise specified, all dates heieunafter refer to 1955 A. C. LAWRENCE LEATHER COMPANY 63 several of Local 33's eight delegates, who had been elected on January 11, spoke in favor of the merger, although the delegates as a group voted against the merger. A majority of all delegates to the con- vention, however, voted that the merger should become effective with- in 30 days if a majority of the locals within that period voted in favor of the merger. Further expression of sentiment as regards the proposed merger was reserved for a later meeting of Local 33. At the latter's regular monthly meeting on February 7, attended by 64 members," after a motion to secede from the IFLWU and to affiliate with the Meat Cutters was withdrawn pending a secret vote on the merger, the membership voted to conduct a secret ballot on February 15 on the question of the merger with the understanding that, if the merger were defeated, a mass meeting would be held on February 17. The raising of the issue for and against the proposed merger re- sulted in a division of opinion within the Local, both in its govern- ing body and also in its membership. So far as its governing body is concerned, it appears that, following an executive council meet- ing s on February 10, at which a motion was passed, 14 to 12, to ap- prove the merger and to recommend to the members of Local 33 "that we go along with the merger until the expiration of our con- tract," the 14 council members favoring the merger placed an ad- vertisement in a local paper appealing to Local 33 members to go along with the merger. Similarly, the 12 council members opposing the merger placed an advertisement in the paper appealing to the members to vote "no" on the merger. Thereafter, pursuant to the action of the Local 33 membership at its February 7 regular meeting and a notice posted on the plant bulletin board, there was held on February 15 a secret ballot election in which 730 members voted against, and 198 for, the merger.1° As a result of this division of opinion, there were certain steps taken indicating that a division might occur within the Local itself. The night before the scheduled February 17 mass meeting, a meeting was held at which representatives of the IFLWU, the Meat Cutters, and Local 33 were present 11 The president of Local 33 was asked to table any motions which (night be made the following day concerning dis- affiliation from the IFLWU and affiliation with the CIO. Later that same evening, several of Local 33's officers held a meeting at which O'Keefe, CIO representative, was present and requested that the Lo- 9 The average attendance at the monthly meetings was 40. O Administratively , Local 33, IPLWU, was goveined by a set of officers , a 10-member executive board which included the President , and a 20-member executive council which included all officers and executive board membei s 10 Estimated figuics place Local 33's membership at this time at between 1,450 and 1,575. 11 Similar Wednesday night meetings , held for the purpose of obtaining a favorable vote on the merger , had been conducted since January 20 at which the discussion revolved around the issue of how to avoid a schism and a secession. 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cal 33 president entertain at the mass meeting disaffiliation and affilia- tion motions which he had helped to prepare. The following morn- ing, the executive board met and passed a resolution to the effect that Local 33 should go along with the merger. Early that afternoon, prior to the mass meeting, the executive council met and defeated this resolution which had been submitted to it by the executive board, and voted to recommend to the mass meeting that Local 33 disaffiliate from the IFLWU.12 Pursuant to the action of the Local 33 membership at its February 7 regular meeting and in accordance with a notice posted on the plant bulletin board following the merger vote on February 15, a mass meet- ing of Local 33, IFLWU, was held on February 17. The member- ship passed three motions in the following order that : (1) Local 33, IFLWU, disaffiliate from the IFLWU and transfer local union funds, assets, and property (including rights under the contract) to the treasurer to hold in trust; (2) Local 33 affiliate with the Leather Workers Organizing Committee, CIO, and that the officers request a charter from the CIO, and petition the Board for certification; and (3) Local 33 continue in office the present regular officers until the next regular election "so long as they continue to carry out the votes taken at this meeting." 13 Attorney Goldman, who had been secured by a committee which had been appointed to retain an attorney, was present at the meeting, introduced to the membership, and answered questions by members pertaining to the motions.14 Thereafter, at separate executive council meetings, CIO representatives urged the council members to go along with the mass meeting vote, and IFLWU representatives appealed to the local officials to override the vote. As a result of the foregoing events, the IFLWU advised Local 33, and the Employer, on February 21 that, in view of its secession ac- tion, Local 33's charter had been suspended. A majority of the execu- tive board, on or about February 22, thereupon voted to overrule the mass meeting vote and to go on record as approving the merger. Also on February 22, after 103 of 106 IFLWU locals had voted to merge 12 Intervenor's witnesses did not recall whether these motions were voted upon Minutes of the meeting received in evidence, appear, however , to show that they in fact were voted upon. 13 Witnesses for the Petitioner testified that, of approximately 300 members present, there were but 10 or 12 who voted against each of the 3 motions Witnesses for the Inter- venor testified that there were approximately 150 present, and that between 10 and 20 voted against each motion . The past president of Local 33 , IFLWU, testified that, with possibly one exception , this was the largest attendance at a union meeting in his memory. This was also refuted by witnesses for the Intervenor. 14 At the earlier February 7 regular meeting of Local 33, the membership had authorized the president to appoint a committee to obtain the services of an attorney for the February 17 mass meeting The Intervenor , at the hearing, and in its brief, placed considerable emphasis upon the fact that Mr. Goldman was not an impartial attorney , but was in fact a biased attorney who was representing the CIO. The record discloses considerable con- flict in testimony and much confusion concerning the purpose for which the attorney was to be retained and the role which Mr. Goldman played. A. C. LAWRENCE LEATHER COMPANY 65 with the Meat Cutters, the merger allegedly became effective.- Sub- sequently, on February 25, a majority of the executive council voted in favor of Sustaining the February 17 disaffiliation-affiliation action of the Local 33 membership.: , Since the split in Local 33, and the disaffiliation-affiliation action, each group has conducted its own meeting. Thus, Local 33, CIO, whose request for a charter has been approved by the CIO, held a regular meeting on March 1, at the former headquarters of Local 33, IFLWU, at which meeting members of the old executive board and executive council who did not go along with the disaffiliation-affilia- tion action were replaced. Thereafter, following a regular meeting of Local 33-L, Meat Cutters, on March 7, attended by some 40 to 60 members, at which a new charter was presented by a representative of the Meat Cutters, a special meeting of Local 33-L, Meat Cutters, was held on March 17, at which new officers were appointed.17 Both Unions and their Internationals have made demands upon the Employer for recognition. The Employer received notifications from Local 33, CIO, advising it of the recent happenings and requesting recognition under the contract, and from the CIO Organizing Com- mittee on behalf of Local 33, CIO, alleging that it represented a major- ity of its employees and requesting a meeting to "negotiate or ad- minister" a contract. Pursuant to a February 26 telegram from the Meat Cutters International stating that Local 33's charter "is hereby reinstated in behalf of Amalgamated Local 33 ...," Wlodyka, new business agent of Local 33-L, Meat Cutters, advised the Employer that Local 33-L would continue to honor the contract. Following the receipt of a letter on March 3 from the Meat Cutters alleging that Local 33-L, Meat Cutters, is the same as the contracting Union, and demanding continued recognition under the terms of the contract, the Employer filed the instant petition, and, on March 4, advised the CIO, the Meat Cutters, and its employees, that, having been faced with conflicting claims, it would continue to adhere to the terms of the contract, but would not recognize either Union pending a Board determination. The record discloses that both Unions are presently functioning under a constitution and bylaws; and that each has a slate of officers, holds regular meetings, and is actively engaged in representing 15 The merger agreement is subject to the approval of the Meat Cutters' 1956 general convention 16 The record discloses that, both before and after the disaffiliation-affiliation action, both the board and the council were split on the issue 17 Of a total of 26 officials of Local 33, IPLWU, all but 10, who were replaced at the March 1 meeting of Local 33, CTO, went along with the disaffiliation-affiliation vote, and iemained with Local 33, CIO The recoid discloses that the former president, vice presi- dent, secretary, treasurer , and district council official , 4 former executive board members, and 7 former stewards on the executive council went with Local 33, CIO. The former business agent, 5 former executive board members , and 4 former stewards on the executive council went with Local 33-L, Meat Cutters. 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees of the Employer.18 Although the Company has refused to recognize either Union as representative of its employees, it has proc- essed grievances with officers of both Unions as individuals, but not as representatives of the Union, on behalf of individual employees upon the requests of such employees. As noted above, the evidence discloses that, prior to the actual disaffiliation-affiliation action of February 17, the membership of Local 33, throughout 1954, had become concerned over the Communist in- filtration at the international level, and that communism, secession from the IFLWU, and the merger with the Meat Cutters, were issues that had been the subject of discussion at several of Local 33's regular meetings during the early months of 1955. The evidence further shows that of approximately 1,500 workers, in excess of 900 took part in the February 15 balloting which rejected the IFLWU-Meat Cutters proposed merger; and that the disaffiliation- affiliation vote of Febru- ary 17 was taken at one of the largest meetings of Local 33 members.19 The Board has held under similar circumstances that the expul- sion of a labor union by its parent coupled with the later disaffiliation action on the local level for reasons related to the expulsion, creates a schism which warrants the holding of an election despite a contract existing between the local and the employer.20 Neither the fact that the attempted secession movement may have violated the IFLWU constitution 21 nor the fact that the Petitioner actively participated in the disaffiliation action 22 warrants a departure from the Lawrence Leather principle. We have examined the facts presented in this case in the light of the schism doctrine, and conclude that the disaffiliation action by Local 33, IFLWU, for reasons related to the expulsion of the IFLWU by its parent, the CIO, creates such confusion that the exist- '$ See International Harvester Company, Farmall Works, 110 NLRB 1247 ; Whirlpool Corporation, 111 NLRB 547 191n view of the prior meeting discussions and the merger vote 2 days before, we find without merit the Inteivenor's contention, raised in its brief, that the notice posted on the plant bulletin board announcing the mass meeting of February 17 did not specifically advise members of the purpose for which it was being called The notice read as follows LOCAL #33, I F L W U. PEABODY, MASS NOTICE AS PER ORDER OF THE BODY AT THE FEBRUARY MONTHLY MEETING-A MASS MEETING IF THE MERGER WAS TURNED DOWN IS BEING CALLED-AS REQUESTED FOR 3 00 P. M, THURSDAY, FEBRUARY 17TH, 1955 AT PEA- BODY HIGH SCHOOL AUDITORIUM-TO DISCUSS FUTURE ACTION OF THE MEMBERSHIP. PER ORDER LAST MONTHLY MEETING 20 A. C. Lawrence Leather Company, supra See also Empire Zinc Division, The N. J. Zinc Company, 108 NLRB 1663; General Electric Apparatus & Service Shop, 110 NLRB 1054; Continental Electric Company, 110 NLRB 1062 xi Aluminum Company of Amcisca, 80 NLRB 1342 at 1343, footnote 4. 22 Whirlpool Corporation., supra. THE ITEM COMPANY 67 ing contract no longer stabilizes industrial relations .23 Under these circumstances, we find that a schism exists which warrants directing an immediate election without determining whether the existing con- tract would otherwise bar a determination of representatives. Ac- cordingly, we find that the current contract does not bar this proceeding. We find that a question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Section 9 (c) (1) andSection 2 (6) and (7) of the Act. 4. In accord with an agreement of the parties, we find that the fol- lowing employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: All hourly paid employees at the Employer's Peabody, Massachu- setts, plant, including firemen, engineers, truckdrivers, and main- tenance employees, but excluding executives, office clerical employees, employees on the salaried payroll, guards, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] 23 See The Magnavox Company, 111 NLRB 379 The Item Company and New Orleans Newspaper Guild, Local 170, American Newspaper Guild, CEO and International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, Local 270 International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, AFL, Local 270 and New Orleans Newspaper Guild, Local 170, American Newspaper Guild, CIO. Cases Nos. 15-C-4-719, 15-C A-720, and 15-CB-122. July 8,1955 DECISION AND ORDER On January 25,1955, Trial Examiner Louis Libbin issued his Inter- mediate Report in the above-entitled proceedings, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. The Trial Examiner also found that the Respondents had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal of the complaint with respect to such allegations. Thereafter, the Respond- 113 NLRB No. 8.