The Great Atlantic and Pacific Tea Co.

656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Great Atlantic and Pacific Tea Company and Local 492, Amer- ican Bakery and Confectionery Workers International Union, AFL-CIO, Petitioner. Case No. 4-RC-355f. April 28,1958 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 Bernard Samoff, hear- ing 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 Petitioner seeks an election among the production employees of the Employer's Philadelphia, Pennsylvania, bakery. The Em- ployer and the Intervenors contend that the contract of Local 492 (the intervening local) is a bar. The Petitioner contends that the contract is not a bar because a schism has occurred, and because Local 492 is defunct. Local 492 is an amalgamated local union which represents em- ployees of 13 employers in Pennsylvania. Originally a direct affiliate of AFL, Local 492 later was chartered by Bakery Workers, which eventually became affiliated with AFL-CIO through the merger of those two parent organizations. Local 492 was recognized by the Employer as the representative of the employees herein involved in 1940 and has executed successive contracts covering them since that time. The most recent contract, which is asserted as a bar, is effective from January 1, 1957, until October 1, 1958. After proceedings initiated by it as the result of charges of corrup- tion preferred against Bakery Workers officials in March 1957, the AFL-CIO convention voted on December 9 to expel Bakery Workers, effective December 12, on grounds of corruption. On December 12, 1 The hearing officer permitted Bakery and Confectionery Workers International union of America , herein called Bakery workers , and its Local 492, herein called Local 492, to intervene on the basis of Local 492's current contract with the Employer covering the employees involved . The Petitioner objects to the intervention of Local 492, and contends it is not a labor organization , on the ground that it is defunct. The Petitioner also objects to the intervention of Bakery workers on the ground that it is not a party to the contract The objections are overruled we find, for the reasons stated below, that Local 492 is not defunct. As it admits employees to membership and negotiated the current contract, we find that it is a labor organization , and as a party to the contract, it is entitled to intervene . Bakery workers, as the International with which the con- tracting Local is affiliated, and which is administering the affairs of Local 492 through a trustee , also has a sufficient interest to be entitled to intervene. 120 NLRB No. 91. THE GREAT ATLANTIC AND PACIFIC TEA COMPANY 657 AFL-CIO chartered American Bakery and Confectionery Workers International Union, herein called American Bakery Workers 2 Local 492, pursuant to notices previously mailed to all member shops, called a special meeting of its members on December 11. Ap- proximately 400 of its 2,600 members attended,' and unanimously adopted a resolution disaffiliating from Bakery Workers for reasons related to its expulsion from AFL-CIO, directing all officers to retain their offices, protect the Local's assets, and apply to the new inter- national, American Bakery Workers, for a charter. The charter was subsequently granted. A majority of Local 492's members have signed a petition endorsing the action taken at the meeting, 2,183 members have signed cards disaffiliating from Bakery Workers and authorizing the Petitioner to represent them, and 2,107 have signed the Petitioner's checkoff cards. Of the Employer's average complement of 230 to 260 employees, 245 have signed cards disaffiliating from Bakery Workers and authorizing the Petitioner to represent them. All members of the shop committee at the instant plant have defected to the Petitioner. The Petitioner has advised the Employer of the foregoing change in affiliation and, through the shop committee at the instant plant, has taken over administration of the contract, processing grievances at weekly meetings with management. Bakery Workers has removed the defecting officers of its Local 492 and has appointed a trustee and assistant trustees for the Local. The trustee has established a new office and has held meetings of small groups of employees, some of whom signed cards declaring their loyalty to Bakery Workers. Although the trustee has not handled any grievances, he informed the Employer of his appoint- ment and claims to be ready, willing, and able to administer the contract. The Employer is holding checked-off dues in escrow. In the light of the foregoing, it is apparent the Bakery Workers Local 492 is not defunct. Even though most of its members and all its officers have defected, a trustee and assistant trustees appointed by Bakery Workers are actively carrying on its affairs from a new office, have informed the Employer to that effect, and have contacted members and held meetings. Some of Local 492's members have remained loyal. It is willing to, and capable of, administering its contract 4 However, the Board has held, under circumstances similar to those existing here, that the expulsion of an international union from its 2 The charter was granted to a dissident group within Bakery Workers , led by five officers of the International known as "Committee to Preserve Integrity in the Bakery and Confectionery Workers International Union of America , AFL-CIO." 3 The usual attendance at Local 492 membership meetings was 200 to 275 6 The Youngstown Steel Door Company, 116 NLRB 986. Cf. John Deere Plow Works of Deere i Company, 115 NLRB 923, 925 483142-59-vol. 120-43 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD parent organization, coupled with disaffiliation action at the local level for reasons related to the expulsion, disrupts and confuses the established bargaining relationship between the employer and the representative of the employees, creating a schism which warrants the holding of an election despite the existence of a contract between such representative and the employer.' A departure from this prin- ciple is not warranted by the fact that the disaffiliation action may have violated the constitutions and bylaws of Local 492 and Bakery Workers,' or did not meet all the formalities which the Board in some cases has required.' We therefore find that a schism exists 8 and that the contract does not bar an election at this time.' Accord- ingly, 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.lo 4. In accord with the agreement of the parties, we find that the following employees of the Employer constitute a unit appropriate for the purpose of collective bargaining within the meaning of Sec- tion 9 (b) of the Act: All production employees at the Employer's 1 4. C Lawr ence Leather Company, 108 NLRB 546. 6 Globe Forge, Inc., 115 NLRB 862 We find no meat in the Intervenors' contention that the disaffiliation-affiliation action was directed by a rival union engaged in raiding activities It is clear that the movement was led by a dissident group within the Bakery Workers Union itself and not by a j aiding outside union (see footnote 2, supra) 'In view of the nationwide publicity surrounding the Bakery Workers' expulsion pro- ceedings , the efforts of both factions in the Union to explain their positions to all locals and their members, and the discussions of these matters by the members at meetings prior to December 12, we find without meiit the Intervenors' contention that the notice sent to all shops for posting, announcing the December 11 meeting of Local 492, did not adequately advise the membeis of the purpose of the meeting Written on Local 492's letterhead, the notice stated- "Attention. Attention To All Members There will be a general membership meeting at the Dobbins Vocational School, 22nd & Lehigh Avenue, Philadelphia, Penna on Wednesday, December 11, 1957, at 8 00 P M. Matters of great importance to everyone will be discussed and voted upon Therefore, everyone is urged to attend this important meeting Fratei nally yours, John D Nicola, Secretary- Treasurer" See A C Lawrence Leather Company, 113 NLRB 60, Empire Zinc Division, The New Jersey Zinc Company, 108 NLRB 1663. • The Local 492 d'Isaffiliation meeting occurred on December 11, 1 day before Bakery Workers' expulsion from AFL-CIO became effective on December 12 However, the meeting occurred 2 days after the AFL-CIO convention voted for expulsion on December 9 We therefore find, contrary to the con• tention of the Intervenors, that the Local 492 disaffiliation was not premature In view of our decision herein , we find it unnecessary to, and therefore do not, pass upon the Petitioner's other objections to the coutiact Noi do we pass upon the obliga- tions of the parties with respect to the contract, as requested by the Employer John Deere Plow IVoiks of Deere if Company, 115 NLRB 923 The Petitioner's alternative request that the Board declare that it has succeeded to Local 492' s contract and dismiss the petition is denied. Prudential Insurance Company of America, 106 NLRB 237, relied on by the Petitioner, is inapposite. In that case an employer petition was dismissed on notion of the union to which the contract had been assigned in connection with a disathliation action, the Board finding that the union had succeeded to the contract Here, theie was no assignment Moreover, it is clear that the Petitioner may not, alter iaisnig a question concerning iepiesentation by filing a petition, theieaftei assert what it alleges to be its own contract as a bar Puerto Rico Cement Coiporatiou,•997 NLRB 382 The other cases cited by the Petitioner are inapposite because they did not involve schism situations 10Wo find no merit in the Intervenors' contention that a free election cannot be held because of the Petitioner's seizure of Local 492's assets There is no indication that the assets have been disbursed to the I'etitionei's advantage, as was done in Kearney ct Tieckei Comp v N. L R. B , 210 F 2d 852 (C A 7), relied on by the Intervenors. JOINT COUNCIL OF SPORTSWEAR 659 bakery, Ridge Avenue and Sedgely Street, Philadelphia, Pennsyl- vania, excluding drivers, salaried employees, confidential employees, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] MEMBER RODGERS took no part in the consideration of the above Decision and Direction of Election. Joint Council of Sportswear, Cotton Garment, Undergarment & Accessory Workers Union, AFL-CIO and Mrs. Edwin Selvin, Labor Relations Consultant. Case No. 21-CB-864. April 29, 1958 DECISION AND ORDER On July 16, 1957, Trial Examiner Wallace E. Royster issued his Intermediate Report in the above-entitled proceeding finding that Respondent Joint Council of Sportswear, Cotton Garment, Under- garment & Accessory Workers Union, AFL-CIO, herein called the Joint Council, had engaged in and was engaging in certain unfair labor practices, and recommending that it and Respondent Los Angeles Dress and Sportswear Joint Board, herein called the Joint Board,' as the successor of, the Joint Council, cease and desist there- from and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respond- ents, the General Counsel, and the Charging Party filed exceptions to the Intermediate Report and supporting briefs. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Bean, and Jenkins]. The Board has reviewed the rulings made by the Trial Examiner at the hearing, and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner with modifications and additions noted below 2 1. We agree with the Trial Examiner that the Joint Council vio- lated the Act herein. In so finding, we adopt the Trial Examiner's 1By way of a corrective amendment at the hearing, the Joint Board was made a Party Respondent herein 2 The operations of naiou, Inc. and En Toui, herein called the Employer, are sufficient to warrant the assertion of jurisdiction in this case without consideration of such items as transportation charges and timl,, discounts we therefore deem it unnecessary to pass upon the Trial Examiner's tie.itment of those items in the Intermediate Report. 120 NLRB No. 90.