The Great Atlantic and Pacific Tea Co.

580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (2) Morris Gurewitz d/b/a Washington Rendering Company is an employer within the meaning of Section 2(2) of the Act (3) All drivers and sales drivers at the Los Angeles, California, rendering plant of the Company, excluding all other employees, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Art (4) Meat and Provision Drivers, Local 626, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, Independent, is, and at all times material herein has been, the exclusive representative of the employees in the above appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act (5) By refusing to bargain collectively with the Company, Meat and Provision Drivers, Local 626, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, Independent, has engaged in unfair labor practice& within the meaning of Section 8(b) (3) of the Act (6) The above unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act [Recommendations omitted from publication ] The Great Atlantic and Pacific Tea Company , National Bakery Division and Bakers Local Union No. 57, American Bakery and Confectionery Workers International Union, AFL-CIO, Petitioner. Case No 9-RC-3692 February 10, 1960 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing in this case was held before Thomas M Sheeran, 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 Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Bean, and Fanning] Upon the entire record in this case, the Board finds 1 The Employer is engaged in commerce within the meaning of the Act 2 Bakers Local Union No 57, Bakery and Confectionery Workers International Union of America, referred to herein as BCW Local 57, and its International, referred to herein as BCW were permitted to intervene on the basis of the Local's contract interest The Peti- tioner and the Intervenors are labor organizations claiming to repre- sent certain employees of the Employer 3 The Intervenors contend that a contract between BCW Local 57 and the Employer, effective August 10, 1958, is a bar to this proceeding for the first 2 years of its term The Petitioner maintains that the contract is not a bar because of a schism in BCW Local 57, allegedly caused by the basic intraunion conflict in BCW which resulted in its expulsion from AFL-CIO The Intervenors, however, contend that the schism allegations should be rejected on the ground that the action occurred an unreasonably long time after the beginning of the basic 126 NLRB No 71 THE GREAT ATLANTIC AND PACIFIC TEA COMPANY, ETC 581 intraunion conflict, and was not in fact related to that conflict 1 The Employer is neutral Charges of corruption were brought against the President and other officers of BCW in March 1957, and soon became a subject of discus- sion and concern in BCW Local 57 In October 1957, the membership approved a motion that its officers do everything possible to have BCW call a convention in order to remedy the alleged abuses and to main- tain its standing in the AFL-CIO BOW was however expelled by AFL-CIO in December 1957, and ABC was chartered at the same time ABC thereafter invited many BCW locals, including Local 57, to affiliate with it, claiming in its invitation that its health and welfare funds would pay benefits equivalent to those of BCW This claim was immediately answered by BCW which charged that such claims were a fraud, and that ABC would be unable to pay any benefits for at least a year A special convention of BCW was held in March 1958, at which its officers made their case against the charges which had led to its expulsion from AFL-CIO Although the delegates from Local 57 were uninstructed as to the retention of the BCW officers accused of corrupt practices, they had expressed themselves to the membership, before leaving for the convention, as being in favor of a BCW cleanup in accordance with the AFL-CIO mandates The Local 57 delegates voted for the reelection of Cross who was unopposed as president, because of assurances that he would be exonerated if reelected and could then take the necessary steps to reaf Bate with AFL-CIO However, at the general membership meeting of Local 57 following the convention, the members were not fully convinced that BCW in- tended to reaffiliate, and then considered what steps might be taken to protect their funds from BCW if the Local should leave the International The record reveals a continuing concern on the part of Local 57 members and officers from this time on for the protection of its health, welfare, and pension funds if they sought to disaffiliate from BCW That such concern was well founded is indicated by the fact that on several occasions Cross had warned BCW Locals that their-funds would be imperilled if they sought to join ABC Thereafter, throughout 1958, Fmck, a BCW International representative and an influential member of Local 57, threatened the Local with trusteeship 1 In Hershey Chocolate Corporation , 121 NLRB 901, the Board held that the expulsion of BCW from the AFL--CIO on charges of corruption, and the chartering of ABC with substantially the same jurisdiction, established the existence of a basic intraunion con- flict which was a prerequisite to a finding of schism. The Board also held that henceforth a schism in a bargaining representative would warrant an immediate election, despite a current contract, only if such action was taken a reasonable time after the alleged intra- union conflict arose See also Cincinnati Bakers Club, 121 NLRB 442, and St Louis Bakery Employers Labor Council, 121 NLRB 1,548 582 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD and loss of funds if it sought to leave BCW 3 In June 1958, 3 months after the special BCW convention, Local 57 was expelled from the Columbus Federation of Labor, an organization of 66 Locals belong- ing to internationals affiliated with AFL-CIO Brush, financial secretary of Local 57, told Greer, an official of the Federation, that he intended to see that Local 57 took steps to reaf Bate with the Fed- eration, and at his request a meeting was arranged with Kircher, an ABC representative who had assisted other BCW Locals in switching over to ABC About this time Local 57 retained an attorney to advise it on disaffiliation steps, and at the end of September 1958, the attorney and two officials of Local 57 met with Kircher at Columbus Kircher was told that they intended to reaffiliate with AFL-CIO since BCW had failed to do so However, BCW President Cross whose offices were in Washington, learned of this meeting that same day, and immediately assigned Frock and another BCW representative the job of seeing that Local 57 remained in BCW The two representatives flew to Columbus and arranged for Brush and Egan, the local officials who had met with Kircher, to attend a meeting with an officer of a Teamsters local in the area At the meeting Brush and Egan were asked what their intentions were since it was known they had met with ABC officials, and, as the Teamster official put it, he had to call "both Jimmies" (Hoffa and Cross) who wanted to know. Frock again threatened to put Local 57 under trusteeship Subjected to this pressure, Brush and Egan agreed to keep Local 57 in BCW Four days later Finck and his companion attended the executive board meeting of Local 57 While they were out of the room Brush explained to the board the circumstances of their recent meeting with the Teamsters, and recom- mended that they act with caution so as to protect the Local 's funds The board then approved a motion to remain with BCW Thereafter Finck inspected the minute book of the Local in which discussions and actions taken at local meetings were recorded, and also attended such meetings Brush and Egan, however, remained secretly in contact with ABC representatives concerning disaffiliation devlopments of other BCW Locals Matters came to a head in April 1959 when BCW terminated Finck's services with the International A few weeks later ABC hired Finck as one of its International repre- sentatives and, relieved of that pressure, Local 57 rapidly took steps to transfer its funds to ABC for protection Notices of a meeting to consider disaffiliation were sent to all members, posted in the plants and announced by newspaper, radio, and television More than 500 of the 1,400 members of Local 57 attended the meeting on May 16, an attendance about 10 times greater than that at a regular meeting 2 Local 57 had been placed under trusteeship some years before, with Finck acting as Trustee. THE GREAT ATLANTIC AND PACIFIC TEA COMPANY, ETC . 583 Brush explained that the close supervision by BCW over the Local's affairs had made it necessary to act cautiously in attempting dis- affiliation. The membership then approved without opposition a resolution to join ABC because BCW had violated its fiduciary obliga- tion. Two days later BCW placed Local 57 under trusteeship. The Employer has since held in escrow all dues checked off from its em- ployees pending a determination as to whether ABC or BCW is the rightful bargaining representative. Contrary to the contention of the Intervenors, we are satisfied that the chief reason for the disaffiliation of Local 57 related to the basic intraunion conflict which resulted in the expulsion of BCW from AFL-CIO. The concern of Local 57 over the protection of its funds and rights to health and pension benefits was a direct consequence of the wishes of the officers and members of Local 57 that BCW either comply with AFL-CIO standards and reaffiliate with it, or that the Local leave BCW. If Local 57 had been disinterested in the merits of the intraunion conflict in BCW there would have been no need to be concerned about economic losses which could result from affiliat- ing with ABC. Nor do we believe that the period between the ex- pulsion of BCW from AFL-CIO in December 1957 and the disaffilia- tion of Local 57 in May 1959 was unreasonably long in view of the threats, surveillance, and intimidation by BCW and its agents. Con- trary to the Intervenors, we are satisfied that Finck's transference of his allegiance to ABC in April 1959 was not itself the reason for Local 57's disaffiliation, but rather provided the opportunity through which the Local could reach its objective-reaffiliation with AFL- CIO without economic loss. We conclude, therefore, that the dis- affiliation taken has resulted in confusion disrupting bargaining relationships, and that a schism exists which removes the contract as a bar to an immediate election.' In view of the above finding we need not consider the Petitioner's other objections to the contract as a bar. Questions affecting commerce exist 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. We find, in accord with the agreement of the parties, that the unit described below, which conforms to the contract unit, is appro- priate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act : All production and maintenance employees of the Employer at its baking plant at Columbus, Ohio, including shipping, cleaning, and sanitation department employees, but excluding office clerical and professional employees, warehousemen and truckdrivers, guards, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] 8 Oregon Macaroni Company, at as., 124 NLRB 1001.