Hebron Brick Co.

HEBRON BRICK COMPANY 245 spondent immediately upon receipt thereof and maintained by it for a period of 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for the Twenty-third Region, in writing, within 20 days from the date of this Recommended Order, what steps Respondent has taken to comply herewith. The allegations of the complaint that Respondent violated Section 8(a) (3) of the Act are hereby dismissed. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify our employees that: WE WILL NOT interrogate our employees in regard to the union sympathies or activities of themselves or fellow employees under circumstances constituting interference, restraint, or coercion in violation of Section 8(a)(1) of the Act, or in any like or related manner violate Section 8(a).(l) of the Act. DOBBS HOUSES COMPANY, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Hebron Brick Company and General Drivers and Warehousemen, Local 123, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of America, Peti- tioner. Case No. 18-RC-4725. January 12, 1962 DECISION ON REVIEW AND ORDER On June 18, 1961, the Regional Director for the Eighteenth Region issued a Decision and Direction of Election in the above-entitled pro- ceeding (not published in NLRB volumes). Thereafter, the Em- ployer and the Intervenors, Local 901, United Brick and Clay Workers of America, and United Brick and Clay Workers of America, AFL- CIO, also referred to herein respectively as Local 901 and the Inter- national, in accordance with Section 102.67 of the Board's Rules and Regulations, filed with the Board timely requests for review of such Decision and Direction of Election, on the ground, inter alia, that the Regional Director erroneously found that the contract executed by the Employer and Local 901 was not a bar to the petition. The Petitioner, on July 14, 1961, filed its opposition to the requests. The Board by telegraphic order, dated July 19, 1961, granted the requests for review and stayed the election pending its consideration of the merits of the issues raised in the requests for review. There- after, the Employer filed a supporting brief. 135 NLRB No. 16. 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Board has considered the record, the requests for review, the supporting brief, and the opposition thereto and, for the reasons set forth below, finds, contrary to the Regional Director, that the contract constitutes a bar. The petition herein was filed by the Teamsters on May 16, 1961, seeking a unit of all plant employees at the Employer's brick and tile manufacturing operation in Hebron, North Dakota. The Employer and the Intervenors contended at the June 1 hearing that the petition was barred by a contract between the Employer and Local 901, ef- fective from April 2, 1960, to March 1, 1963. The Regional Director held that the contract was not a bar to the petition because (1) the contract was a "members-only" agreement; and (2) Local 901 is defunct. 1. The members-only agreement The Regional Director predicated his finding that the contract was a members-only agreement on the recognition clause which provides : The Company agrees to recognize the Union as the bargaining agency for all employees of the Hebron Brick Company, with the exception of the foreman and office staff, that are members of such Union and this agreement shall apply only to such members. The Regional Director found that under this clause Local 901 is recognized as the representative only of those employees who are its members and that such a "members-only", agreement cannot operate as a bar under the Board's decision in Appalachian Shale Products Co.' He rejected the Employer's contention that evidence was admis- sible to show that the contract was applied to all employees on the ground that the Board, for contract-bar purposes, looks only to the ex- press provisions of a contract and does not rely upon extrinsic evi- ^dence. The Employer asserts that the contract is ambiguous as to its coverage and that the Board permits the admission of extrinsic evi- dence in such situations to determine the intent of the parties. We do not believe that the express provisions of the contract clearly establish that it is a members-only agreement. Thus, its substantive provisions do not limit contractual benefits to union members and the provisions governing wages and seniority specifically apply to all employees. In our opinion, it could reasonably be inferred that the contract was applied to all employees in the unit regardless of union membership. However, as this inference does not explain the inde- terminate reference to union members in the recognition clause, we find that an ambiguity exists as to the intended coverage of the con- tract which, in these circumstances, necessarily must be resolved by considering the intent and the practice of the contracting parties. 1121 NLRB 1160. HEBRON BRICK COMPANY 247 The uncontroverted testimony of the Employer and that of W. W. Murrey, president of the State (North Dakota) Federation of Labor, .who had negotiated contracts for Local 901, shows that the contract was applied to all plant production and maintenance employees re- gardless of union membership. Murrey testified that the reference to union members in the recognition clause was added to the contract in 1952. Prior to that year only plant employees were covered by the contract, but in 1952 Local 901 requested and the Employer granted it recognition for those clericals who were union members. The recog- nition clause thereafter was amended to continue the exclusion of office clericals except those who were members of Local 901. Although unartfully drafted, the amendment was not intended to affect the status of Local 901 as the exclusive representative of all plant employees. In view of this uncontroverted testimony, we believe that the intent and the practice of the contracting parties was to include all plant production and maintenance employees within the coverage of the contract. We find, therefore, that as the contract covers all the em- ployees sought in the petition, it is not a members-only agreement and is not removed as a bar for that reason. 2. The alleged defunctness of Local 901 The Regional Director found that Local 901 was defunct because it was no longer a functioning labor organization. Local 901's alleged defunctness was the culmination of an attempt by certain of its mem- bers to disaffiliate from its parent International because of dissatis- faction with the terms of the contract referred to above. At the regular monthly meeting of Local 901 in March 1961, which meetings were held on the first Friday of each month, some members suggested that if they affiliated with the Teamsters they might obtain a better contract. Following this suggestion, the members decided to have Floyd Cunningham, a Teamsters representative, address them con- cerning affiliation with the Teamsters. Cunningham was thereafter invited to attend a special meeting of Local 901 to be held on May 5, which had been called for the purpose of disaffiliation. Although notices of the meeting were posted at the plant, they did not disclose the purpose of the meeting. At the meeting, the minutes of which were taken by Cunningham's secretary, Cunning- ham told the members of the advantages of joining the Teamsters and, at their request, advised them concerning disaffiliation action. In this connection, he advised them that they should return Local 901's char- ter to the International and that a Board-conducted election should be held. A poll was thereupon taken in order to determine, according to the president of Local 901, "Who was going to go to the Teamsters and who was going to go with the AFL [the Intervenor]." A ma- jority of the members present voted to affiliate with the Teamsters. 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thereafter, the assets of Local 901 were distributed among the mem- bers, and a letter, dictated by Cunningham but signed by two officers of Local 901, was transmitted with the charter to the International in- forming it that Local 901 intended to disaffiliate. This letter, how- ever, did not mention that the members who voted intended to affiliate with the Teamsters. On May 10, the Teamsters sent a letter to the Employer in which it claimed to represent a majority of the employees, and on May 16, filed the petition herein. At the instant hearing on June 1, which was less than a month after the disaffiliation meeting, three officers of Local 901 testified that they no longer considered them- selves officers of Local 901, and that no grievances had been processed since the disaffiliation meeting, although these witnesses indicated that they did not know whether there were any grievances awaiting process- ing during this period. They also testified that if no election were directed, they would continue to operate under the existing contract. Under this circumstance, the Local, according to the testimony of the recording secretary, would continue to conduct its meetings. The hearing officer permitted representatives of the International to inter- vene on its own behalf on the basis of its constitution which governs the relationship between the International and its locals and on behalf of Local 901 on the basis of the latter's contract with the Employer. In their request for review, the Intervenors deny that Local 901 is defunct because, inter alia, an International representative is presently servicing the Local. On July 14, Local 901, in support of its request, alleged that it had submitted to the Board's Regional Office authoriza- tion cards signed by seven employees on its behalf. The Regional Director found that Local 901 was defunct because it had made no attempt to intervene at the hearing; had held no meetings nor processed any grievances since the disaffiliation meeting of May 5, and its officers considered themselves as having resigned their offices. It is clear from the record, however, that representatives of the Inter- national purporting to act on Local 901's behalf had intervened at the hearing; and that no regular meetings of the Local in fact could have been held before the June 1 hearing date because regular meetings were not held until the first Friday of each month. Moreover, there is no indication in the record that there were any pending grievances within the short period that intervened between the disaffiliation meeting and the hearing, or that Local 901 would be unwilling to process any future grievances. In view of all the foregoing, we do not believe that the circumstances surrounding the attempt by certain of the members of Local 901 to disaffiliate from its International for the purpose of affiliating with the Petitioner warrants a finding that Local 901 is unable or unwilling to function as the representative of the employees sought in the peti- HEBRON BRICK COMPANY 249 tion. • We therefore find that Local 901 is not defunct and the contract is not removed as a bar to the petition for this reason. Accordingly, as the existing contract operates as a bar, we shall dismiss the petition. [The Board dismissed the petition.] MEMBER RODGERS dissenting : Contrary to my colleagues, I would affirm the Regional Director's finding that the contract which is urged as a bar is a "members-only" contract, and is for this reason invalid as a bar. I also agree with the Regional Director's further finding that Local 901 has become defunct. It is apparent from the recognition clause of the contract that the contract is by its terms a "members-only" contract. The contract specifically provides: The Company agrees to recognize the Union as the bargaining agency for all employees of the Hebron Brick Company, with the exception of the foremen and office staff, that are members of such Union and this agreement shall apply only to such member8. [Emphasis supplied.] By its very language, this contract cannot bar the petition herein for all production and maintenance employees, under the Board's Decision in Appalachian Shale Products, 121 NLRB 1160, 1164, in which the Board explicitly stated : "To serve as a bar, a contract must clearly, by its terms encompass the employees sought in the petition." [Emphasis supplied.] It is clear from this and other language of the Appalachian case that the Board did not intend to permit parties to adduce extrinsic and subjective testimony as to their intentions or bargaining practices under a contract which did not by its terms qualify as a bar .2 Moreover, I see no reason to reverse the Regional Director's con- clusion that Local 901 is defunct. There is no evidence of the con- tinued functioning, or even existence, of Local 901, as is amply demon- strated ;by the fact that it was a representative of the International Union who appeared at the hearing, ostensibly on behalf of Local 901. My colleagues rely on the appearance of the International repre- sentative as an indication that Local 901 is not defunct. However, in Hershey Chocolate Corporation, 121 NLRB 901, the Board held that the willingness of an International union to assume the functions of a local union is relevant to the question of defunctness of a local union a Thus, the Board stated, at page 1163, "It is felt that objectivity based on known standards should replace the uncertainty of subjective reasons and explanations , and that the elimination of this exception will provide a surer and more predictable policy to guide those who come before the Board." See also, 121 NLRB 1162 , at footnote 6, in which the Board expressly overruled prior cases in which the Board had received and relied in parol evidence of contract terms. 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD only if the International union is a party to the contract. This is not the case here. As the Regional Director followed, and properly applied, the existing precedents, and as his factual determination regarding de- functness was not "clearly erroneous on the record"-the standard of Section 102.67(c) of the Board's Rules-I would affirm his descision. MEMBER LEEDOM took no part in the consideration of the above Decision on Review and Order. International Brotherhood of Electrical Workers, Local Union 861, and Arneth Lard, its Agent and Plauche Electric, Inc. Cases Nos. 15-CC-123 and 15-CC-1926.1 January 12, 1962 DECISION AND ORDER On April 12, 1961, Trial Examiner John C. Fischer issued his Intermediate 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 there- from and take certain affirmative action, as set forth in the Inter- mediate Report attached hereto. Thereafter, the Respondents and the General Counsel filed exceptions to the Intermediate Report and sup- porting briefs. 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 Inter- mediate 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 only so far as consistent with our decision herein. 1. The facts in Case No. 15-CC-126 are as follows : U.S. Tire Engineers, Inc., a wholesale and retail tire establish- ment, required certain electrical work at its premises. Lake City Electric, a partnership of Dale Bonin and Louis Arnaud, bid for the work and the bid was tentatively accepted. However, Davis, presi- ' Cases Nos . 15-CC-123 and 15-CC-126 are the subject of a consolidated complaint. The former , arising out of picketing at Ramada Inn, was originally disposed of by settle- ment agreement between the Respondents , Lake Charles Building & Construction Trades Council , AFL-CIO, and T. K. Sitzlein , its agent, and the Charging Party, Plauche Electric, Inc , and approved by the Regional Director on September 23, 1960 Approximately 3 weeks later, Plauche again filed charges of violations of Section 8(b) (4) (1 ) and (ii) (B) based on the picketing by Respondents at U.S. Tire Engineers , Inc The Regional Director found merit in the new charges , and therefore lie set aside the settlement agree- ment as to Respondents and issued the instant consolidated complaint Because, as appears below , we find no merit in the new charges, we shall dismiss the complaint and reinstate the settlement agreement in Case No 15-CC-123 without passing upon the merits of that case. 135 NLRB No. 41.