Graphic Finishers, Inc.

374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that they have the same supervision, and that their duties are similar to those of other employees in the unit. Accordingly, we shall include do the unit` all regular part-time employees who regularly work 8 hours a .weeks Assistant managers have been excluded from the contract unit. As the record shows that they act, in effect, as comanagers and, have authority to hire and discharge in the absence of the store manager, we find that they are supervisors and shall exclude them from the unit. We shall direct elections in the following voting groups of em- ployees in the Employer's 12 stores in Milwaukee and Waukesha Counties, Wisconsin, excluding meat department employees, man- agers, assistant managers, confidential secretaries, and supervisors as defined in the Act : (1) All employees employed in the 10 stores in Milwaukee County exclusive of the Krambo Blue store. (2) All employees employed in the Krambo Blue store and the Waukesha-store. The appropriate unit which we find will be dependent upon the outcome of the elections. If a majority of the employees in voting group (2) vote against representation, they will be taken to have indicated their desire to be excluded from a unit in combination with the employees in voting group (1). If a majority vote for representa- tion, the two groups together will constitute a single appropriate unit. The Regional Director is instructed to issue certification of rep- resentatives or certification of results as dictated by the outcome of the elections herein. [Text of Direction of Elections omitted from publication.] MEMBER MURDOC% took no part in the consideration of the above Decision and Direction of Elections. 8 See C & H Foods, Inc., 100 NLRB 1483, 1485. Graphic Finishers, Inc. and New York Paper Cutters and Book- binders Union, Local 119, affiliated with International Broth- erhood _of Bookbinders, AFL-CIO, Petitioner. Case No. 2-RC- 8789, November 7,1957 DECISION AND DIRECTION OF ELECTION -Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before John J. Carmody, 119 NLRB No. 50. GRAPHIC FINISHERS, INC. 375 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 National Labor Relations Act, as amended, the Board has delegated its powers in con- nection with this case to a three-member panel [Members Rodgers, Bean, and Jenkins]. 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. On April 30, 1956, Local 250, A. I. W., was the bargaining repre- sentative of the Employer's employees. On that date it executed a collective-bargaining agreement with the Employer for a term end- ing April 30, 19583 The Intervenor, Local 362, contends that it is the successor to Local 250, and to that union's 1956 agreement with the Employer which bars this proceeding. The Petitioner, in effect, challenges the successorship of Local 362 and contends that the 1956 contract cannot serve as a bar. The Employer takes no position on the contract-bar issue. The relevant facts concerning the alleged successorship of Local 362 are as follows : During the latter part of 1956 and the early part of 1957 considerable "bad publicity" concerning International Union, Allied Industrial Workers of America, AFL-CIO, herein called A. I. W., appeared in the American and Spanish language news- papers 3 Thereafter, the executive board of Local 250 met at a spe- cial meeting on February 13, 1957. At this meeting the executive board members, some 13 in number, voted to disaffiliate from the A. I. W., and also agreed that the Local's officers should search for an- other union with which Local 250 could affiliate.4 On or about Feb- ' On August 19, 1957, after the close of the hearing , the Petitioner requested the Board to reopen the record and permit it to introduce certain additional information concerning Local 250, International Union, Allied Industrial Workers of America , AFL-CIO, herein called Local 250; Local 362, IBT, AFL-CIO, herein called Local 362; and certain indi- viduals, most of whom appeared as witnesses in the Board proceeding . In the alternative, it requests the Board to take judicial notice of hearings before the United States Senate Select Committee on Improper Activities in the Labor or Management Field during which the information in question was allegedly developed . In view of our determination herein, and as the record in the proceeding adequately presents the issues, we find it unnecessary to reopen the record for further hearing , or to take judicial notice of the Senate Com- mittee's hearings. a Although the contract was entered into by the Employer and Local 250, United Auto- mobile Workers of America, AFL, we note that effective July 1, 1956 , International Union, United Automobile Workers of America, AFL-CIO, changed its name to International Union, Allied Industrial Workers of America , AFL-CIO. Advance Stamping Company, Brighton Division, Case No. 7-RM-162, issued July 30, 1956 ( not reported in printed volumes of Board Decisions and Orders). -3 It is not clear whether or not there was also certain "bad publicity" concerning Local 250. 4It appears that the president of Local 250 "went shopping " for a new international union with which to affiliate. 376 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD ruary 18, 1957, Local 250 received a letter from the president of the A. I. W. notifying it that the executive board of the A. I., W. had re- voked the charter. of Local 250 because "the operation of Local Union 250 is incompatible with the principles, practices, constitution and laws of our International Union, and the Constitution and Codes of the American Federation of Labor-Congress of Industrial Organiza- tions." s The letter also notified Local 250 to turn over to the presi- dent of the A. I. W. its charter and all books, documents, papers, property, and effects of Local 250, including collective-bargaining agreements and all funds, evidence of funds, and bonds. On Febru- ary 19, 1957, the president of Local 250 notified A. I. W., by telegram, that the action of the A. I. W. executive board was contrary to the provisions of the international constitution and that Local 250 would treat the A. I. W. action as a nullity. None of the property and funds requested by the A. I. W. was ever turned over to it. On February 19, 1957, at about 8 a. m. Neil Lebin, recording secre- tary of Local 250, went to the Employer's plant. He entered into personal conversations with a few of the employees, and informed these employees that the executive board of Local 250 had decided to disaffiliate from the A. I. W., and that the Local's officers were search- ing for another international union with which to affiliate. When queried by some of the employees as to which international union Local 250 would affiliate with, Lebin indicated that he did not know. From the credible evidence in the record, it is clear that Lebin did not call or conduct any meeting of the employees,6 nor was a vote taken among the employees to determine whether or not they ap- proved the disaffiliation action of their executive board.7 Indeed, it & The letter was dated February 13, and stated that the revocation of Local 250's charter was by unanimous action of the A. I. W. executive board on February 7, 1957.. fi It would appear that substantially all of the employees were members of Local 250 at the time. ? The Intervenor contends, in effect, that the employees approved, by vote, the dis- affiliation action at a meeting of the employees on February 19. To support its contention it introduced a document, prepared by Lebin, purporting to be a summary of the minutes of the meeting. The document reads as follows : Brother Lebin informed the members that our local union is disaffiliating from our International , and going into another International, which will be more beneficial for our members. Which was discussed at our Executive Board Meeting. (sic) Vote taken and passed by acclimation . ( Signed by ) Raphael O. Millin, Gasper Vazquez , Nick Raia. However, when queried concerning the alleged vote taken, Lebin admitted that no vote was taken because it seemed to him that those employees around him were in favor of moving out of the A. I. W. In addition, Millin admitted there was no meeting of the employees ; that no vote was taken ; and that he signed the document during a private conversation with Lebin because Lebin told him he was trying to get a few signatures to transfer Local 250's affiliation . Vazquez, another signer, also testified that no meet- ing was held that morning ; that no vote was taken among the employees ; and that he signed the document after Lebin told him it was to change Local 250 to another interna- tional union . Vazquez also testified that he really didn 't know what he had signed because he cannot read English and no one read the document to him before he signed it. Raia, the third signer , testified that Lebin did not speak to any group of employees ; that he did not see any vote being taken ; that there were only 2 or 3 employees nearby when he GRAPHIC FINISHERS, INC. 377 would appear. that only a few of the employees were aware of Lebin's visit to the plant that morning. On February 20, 1957, the executive board of Local 250 met in joint session with the executive board of Local 362.8 At this meeting a motion that Locals 250 and 362 merge, that all assets, including the charter of Local 362, be turned over to Local 250, and that Local 250, A. I. W., change its name to Local 362, I. B. T., was adopted unani- mously. New officers of Local 362 were thereafter elected by the executive board members present at the meeting. Following the meeting, the assets, including the charter of Local 362, were turned over to Local 250, and Local 250 changed its name and is now known as Local 362, I. B. T. Thereafter, Lebin, serving as business representative of Local 362, had application cards for membership in Local 362 and authorization for dues deduction passed to the employees of the Employer's plant. It appears that none of these cards were signed by the employees. Subsequently, during the latter part of February 1957, or early March 1957, a meeting of all day-shift employees was held in the plant. Lebin spoke to the employees and told them of the merger of Local 250 and Local 362, and of the affiliation with the Teamsters. The employees were not asked to ratify or to otherwise signify their approval of the change in affiliation, but Lebin did ask them to sign cards for membership in Local 362 and to authorize the deduction of dues. None of the assembled employees signed the cards. Instead, they indicated that they did not want Local 362 as their bargaining representative, and then they walked out of the meeting. It appears that no meeting for the second- and third-shift employees was ever held. Sometime later, Lebin again returned to the plant and spoke privately to three employees in a private office of the Employer. Lebin again attempted to convince the three employees that they should sign the cards for Local 362, but they refused to do so. Thereafter, during the early part of March, the Employer received two documents from Local 362. The first document notified the Em- had the conversation with Lebin ; that he signed because Lebin told him Local 250 was disaffiliating from the A. I. W. and his signature was only a formality ; and that he iloesn't remember reading the document before he signed it . It further appears that when Lebin appeared at the plant , the third-shift employees were just leaving their work stations and the day-shift employees were just arriving for work. There are approximately 6 employees assigned to the third shift and approximately 72 employees on the day shift. Lebin admits that out of about 78 employees he talked to only about 25. Moreover, it is clear that the employees on the second shift, some 20 in number , were never consulted concerning the disaffiliation. 9 As indicated elsewhere herein , Local 362, the Intervenor herein, is affiliated with Inter- national Brotherhood of Teamsters , Chauffeurs , Warehousemen & Helpers of America, AFL- CIO, herein called the Teamsters. The United States District Court, Southern District of New York, in a proceeding entitled Lacey v. Lufrano, et at., Civil 108-90, dated May 7, 1956 , found that Local 362 is one of the seven paper locals fraudulently chartered solely to influence the results of an election of officers to Joint Council # 16 of the Teamsters. 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployer that Local 250 had disaffiliated from the A. I. W. and had be- come affiliated with Local 362 of the Teamsters. In addition, it con- tained the following : Your contract with Local 250 will continue unchanged and unaf- fected by the Local's change in International affiliation except that it is agreed that wherever the name Local Union 250, Allied Industrial Workers, appears in said agreement, the name Ware- house and Processing Employees Union, Local 362, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, AFL-CIO, shall be deemed substituted in place thereof. With such substitution of name, the agreement between us shall continue in full force and effect until the expiration date contained therein. The Employer, although apparently requested to do so, never signed this document. The second document received by the Employer was a proposed supplemental agreement which it was to sign and return to Local 362. This supplemental agreement contained the following provisions : 1. That the Union (Local 362) is the successor to the predeces- sor (Local 250, A. I. W.) as collective Bargaining Agent for the Employees involved herein, and that the Contract heretofore entered into between the Predecessor and the Company shall be deemed the Contract existing by and between the Union and the Company, the respective parties hereto. 2. That, the Company does hereby recognize the Union as the sole collective bargaining representative on behalf of all em- ployees who are covered under the prior Contract with the Predecessor. 3. That the Contract heretofore in effect and as succeeded to by the Union herein shall continue to be in full force and effect up to and including the expiration date thereof. The Employer also refused to sign the second document, and it was never returned to Local 362. On March 14, 1957, upon request of an employee, the Employer ceased deducting membership dues for Local 250 from the pay en- velopes of all his employees. From that time to the present, no dues deductions have been made, no union meetings have been held, there have been no shop stewards in the plant, and there have been no ef- forts by any party to enforce the contract. In view of the foregoing, and on the basis of the entire record, it is clear that the purported transfer of bargaining authority from GRAPHIC FINISHERS, INC. 379 Local 250 of the A. I. W. to Local 362 of the Teamsters was accom- plished neither at the behest nor with the consent of the employees of the Employer. Indeed the employees had little, if any, voice in the selection of the union to which their bargaining rights had been trans- ferred. Under these circumstances, we find, contrary to the Intervenor, that the Intervenor is not in fact the successor in interest to Local 250, as collective-bargaining representative of the Employer's employees, or to its contract with the Employer, and the Intervenor cannot urge Local 250's contract as a bar to these proceedings.' As the contract in question is not otherwise urged as a bar to these proceedings, and in view of all the events which transpired since Feb- ruary 1957, and as it appears that Local 250 is not administering the contract in the customary manner and is to all intents and purposes not now a functioning bargaining agent for the Employer's employees, we find that the contract between the Employer and Local 250, A. I. W., does not bar these proceedings.1° . We find that a 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. 4. In accordance with the agreement between the parties, we find that the appropriate unit for purposes of collective bargaining within the meaning of Section 9 (b) of the Act is as follows : All pressmen, assistant pressmen, feeders, operators, flyboys, box- boys, cutters, strippers, strippers helpers, shipping clerks, tablemen, and general help employed by the Employer at its greeting card man- ufacturing plant in Brooklyn, New York, excluding all office clerical employees, sales employees, guards, and supervisors within the mean- ing of the Act. [Text of Direction of Election omitted from publication.] ° Cleveland Decals, Inc., 99 NLRB 745. See Turco Milk Transportation Co., Inc., 115 NLRB 1733. Cf. R. C. Williams & Company, Inc., 107 NLRB 933. Local 362 contends that whether or not it received approval of the Employer's employees "is unimportant and . . . immaterial" as it received the approval of its members working for other companies. We do not agree. The evidence submitted by Local 362 to support this 'contention is insufficient to determine accurately whether or not a majority of the members of Local 250 actually favored affiliation with the Teamsters . Thus, it does not ap- pear that Local 250 ever conducted a general membership meeting ; and although there is some evidence in the record showing that approximately 28 individual plant meetings were conducted at various companies having contracts with Local 250, it appears that at only 2 of these alleged meetings did the employees have an opportunity to vote on the question of affiliation with the Teamsters. At the other meetings, it appears that the employees were consulted only with respect to disaffiliation from the A. I. W. Moreover, as the record does not indicate the total number of the membership of Local 250 , the evidence submitted concerning the union members attending the various alleged shop meetings is insufficient to establish whether a majority of Local 250 's members approved the affiliation with the Teamsters. 11 See J. J. Tourek Manufacturing Co., 90 NLRB 5; Roy L. Albertson, d/b/a Radio Station IVBNY, 92, NLRB 1561.