Cyclone Sales, Inc.

CYCLONE SALES, INC. 431 Cyclone Sales, Inc. and International Union, United Automobile,. Aircraft & Agricultural Implement Workers of America, UAW- AFL-CIO, Petitioner. Case No. 30-RC-1079. February 15,1956 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Clyde F. Waers, 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 labor organizations involved claim to represent certain em- ployees of the Employer. 3. The Intervenor herein, Longmont Printing Specialties and Paper Products Union No. 614 of International Printing Pressmen & As- sistants Union of North America, AFL-CIO, contends that its exist- ing contract with the Employer, effective November 1, 1954, through October 15, 1956, is a bar to a present determination of representatives. The Employer takes no position on the contract-bar issue. The Peti- tioner argues, inter alia, that the contract is not a bar to this proceed- ing on the following grounds : (1) The contract is invalid because al- legedly it was collusively executed; (2) the contract is illegal, ab initio, under State law because no election authorizing a union-shop contract has ever been held; and (3) in any event, a schism has occurred which removes the contract as a bar. In support of its first contention the Petitioner produced testimony to show that the contract was executed without negotiations at a time when the operations of the plant were just beginning; that at that time there were only 4 or 9 departments in operation with a total of 40 employees in contrast to the present employment of 120; and that the Union involved has never established an office in the city in which the plant is located, or processed any of the grievances brought forth by- employees. As this contention is based on allegations which relate to unfair labor practices prohibited by Section 8 (a) (2) of the Act, it cannot be given weight here. For it is established Board policy not to permit the litigation of alleged unfair labor practices in a representation proceeding. Nor will the Board permit such allegations to be utilized in attacking the validity of a contract so as to remove it as a bar in a representation proceeding.' Accordingly, we will not consider the ' See The Mengel Company, Corrugated Box Division, 114 NLRB 321. The Petitioner also claims that this was an expanding unit when the contract was executed and for this reason the contract does not bar an election at the present time. The Employer began 115 NLRB No. 63. 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD evidence adduced in support of these allegations as pertinent to the issue presented. In support of its second contention the Petitioner referred to, and read into the record, portions of the Colorado Labor Peace Act of 1943 2 which it contends require the affirmative approval through secret -ballot by 75 percent of the employees before a union shop contract may be executed, and which make violation thereof an unfair labor practice and a misdemeanor. It is well established that State law is not determinative of rights and obligations under the Act, except where the Act itself expressly provides otherwise.3 The Petitioner apparently relies upon Section 14 (b) ' of the National Labor Relations Act as a basis for its position. The Board has held that State laws which regulate union-shop agree- ments, as distinguished from those which prohibit such agreements, are subordinate to the national law and are not encompassed in Section 14 (b) of the Act.' As the Colorado statute, according to Petitioner's own interpretation, is regulatory rather than prohibitive, we find that Section 14 (b) of the Act is not applicable, that the national law is paramount, and that the Colorado statute is irrelevant to the contract- bar issue presented here. The Petitioner's claim that a schism has occurred within the con- tracting Union, which removes the current contract as a bar, is based upon the following incidents : After appropriately published notice -the contracting Union on September 19, 1955, held a special disaffilia- tion meeting attended by 77 of the 120 employees. A motion to dis- affiliate from the Intervenor International, to dissolve Intervenor operation at this plant on August 23 , 1954, when it opened the first production line' When the contract herein was signed on October 25 , 1954, the four production departments in operation were the paper line , the pacoon line, the shear room , and the pressroom. The plant has since added the can line , the screwneck line, the waste room, the deluxe line, and the warehouse department . The unit covered by the contract is production and main- tenance and the record does not indicate that the 5 departments since added required sub- stantially different basic skills from those exercised by employees in the initial 4 produc- tion departments Since , in addition , the employee complement at the time the contract was executed was approximately 73 of the present personnel , we find , contrary to the Peti- tioner's contention , that the contract is not removed as a bar on the basis of an expand- ing unit. See II Muehlsteen and Co , 93 NLRB 1273 , 1274. Also see Musksn Manufac- turing Co , Inc., 114 NLRB 1307 Cf. Carbide & Carbon Chemicals Division, Union Carbide and Carbon Corporation, 98 NLRB 270, 272. 8 Petitioner relies particularly upon sections 6 and 23 of the State statute. For the reasons hereinafter stated we find it unnecessary to pass upon the arguments presented by the Intervenor with reference to Petitioner 's interpretation of the State law. 3 See Consolidated Vultee Aircraft Corp., Fort Worth Division, 108 NLRB 591, and cases cited therein 4 Section 14 "(b) Nothing in this Act shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law." G See No? thiand Greyhound Lines, Inc , 80 NLRB 288, and cases cited therein. CYCLONE SALES, INC. 433 Local 614, and to surrender its charter, was unanimously passed; and the body then resolved to affiliate with and apply for a charter from the Petitioner. Thereafter copies of the resolutions passed at the meeting were sent to the Intervenor International, the Employer, and the Union's bank. The Employer was also given a statement of endorsement of such action and' specific revocation of "the written authorization for check-off of union dues" over the signatures of employees, 70 dated September 19, 1955, and 30 dated September 20, 1955. The Intervenor introduced evidence to show that there are at least 5 members 8 of Local 614 remaining, 3 of whom are officers who did not join the secession movement. The record also indicates that, after notice of the action taken at the September 19 meeting, the Intervenor International dispatched a representative to the locality. This repre- sentative, together with the three remaining officers, negotiated wage changes with the Employer pursuant to a wage reopening clause 7 and reached agreement. This agreement, amending the current contract subject to the results of the instant proceeding, was reduced to writing and executed by the parties on the morning of the hearing herein. The Intervenor also introduced testimony to the effect that at a meeting called after negotiations were completed, 11 employees attended and ratified the proposed wage increase. From the foregoing we find that despite the events which have transpired, the Intervenor, Local 614, continues to function as a labor organization; is "recognized by the Employer; and, is ready, willing, and able to administer the contract with the Employer. Accordingly, we find that a departure from our usual contract-bar rules on the ground of a schism is not warranted .8 Upon the entire record, we find that the existing contract between the Intervenor and the Employer is a bar to a present determination of representatives and that, therefore, no question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.' Accordingly, we shall dismiss the petition. [The Board dismissed the petition.] e The Intervenor presented testimony indicating that under its constitution a local cannot dissolve so long as there are five members remaining we do not find such pro- visions pertinent in determining the effectiveness of schism action 'A notice for wage negotiations was given in February 1955, 'Between that date and the date of agreement 6 or 7 meetings were held The number of such negotiation meet- ings held prior to the secession meeting in September is not indicated . However, we do not find, as urged by the Petitioner, that Inteivenor has been defunct because of the pas- sage,of time since the wage renegotiation notice was given or because of the failure to process grievances or to establish an office See Muskin Manufacturing Co , Inc., 114 NLRB 1307. 390609-56-vol. 115-29