Wahiawa Transport System, Inc.

WAHIAWA TRANSPORT SYSTEM, INC. Wahiawa Transport System, Inc. and Norman Lacerdo, et al. and Wahiawa Transit Independent Union. Case 37-RD-63 June 23, 1970 DECISION AND DIRECTION OF ELECTION BY MEMBERS FANNING, MCCULLOCH, AND BROWN Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Dennis R. MacCarthy. Following the close of the hearing and pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, and by direction of the Regional Director for Region 20, this case was transferred to the Na- tional Labor Relations Board for decision. Briefs have been filed by the Union and by the Inter- venor.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. The rulings are hereby affirmed. Upon the entire record in this case, including the briefs filed by the Union and the Intervenor, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. Wahiawa Transit Independent Union, herein called the Union, claims to represent certain em- ployees of the Employer. The Petitioners, em- ployees of the Employer, assert that the Union, a labor organization which has been previously recognized by the Employer as the bargaining representative of the employees involved herein, is no longer such representative as defined in Section 9(a) of the Act.' 3. A question affecting commerce exists con- cerning the representation of certain employees of the Employer within the meaning of Section 9(c)(I) and Section 2(6) and (7) of the Act for the following reasons: ' Hawaii Teamsters and Allied Workers, Local 996, herein called the In- tervenor, was permitted to intervene on the basis of a showing of interest. 2 We find no ment in the argument of the Intervenor, a labor organiza- tion which has requested recognition and bargaining from the Employer, 991 Since 1962, the Employer has voluntarily recog- nized and bargained with the Union as the collec- tive-bargaining representative in a unit of full-time and part-time busdrivers, which currently includes approximately 60 such drivers. The most recent of a series of collective-bargaining agreements between the Union and the Employer expired by its terms on July 16, 1969, although the Employer has continued to give substantial effect to the terms of the expired agreement since the date of its expira- tion. On July 22, 1969, during the course of negotia- tions for a new contract between the Union and the Employer, the Union held a meeting which was at- tended by 18 of its then 47 members. The Union's president, at that time Samuel Maikai, put a motion to the members in which, in effect, he advised them that a vote to reject the proffered contract was equivalent to a vote to merge with the Intervenor, and a vote to accept the contract was the equivalent of a vote to remain an independent union . The vote on the motion resulted in a tie, and Maikai broke the tie by a vote to reject the contract and merge with the Intervenor. On the following day, July 23, 1969, the Em- ployer received a letter from the Intervenor, advis- ing that the Union had merged with the Intervenor and requesting bargaining. On July 30, 1969, the Employer recognized the Intervenor as the collec- tive-bargaining representative of the employees in the aforedescribed unit. In the interim, however, a rift developed between those employees who favored merger with the Intervenor and those op- posed to the merger. On August 4, 1969, Norman Lacerdo, one of the Petitioners herein, filed the in- stant decertification petition, and on October 16, 1969, members of the Union met and elected Lacerdo as its new president. Subsequently, new trustees and a vice president were appointed. At all times the Union has continued to collect dues and initiation fees and to pay expenses. On September 30, 1969, after learning of the division among its employees and the filing of the decertification petition, the Employer notified the Intervenor that it declined to negotiate a new con- tract pending determination by the Board of the representation dispute. The plain language of Section 9(c)(1) of the Act requires us to reject the Intervenor's immediate contention that a certification is a condition that no question concerning representation exists either because the Union has merged with the Intervenor or the Union is defunct. Campbell Soup Company, 175 NLRB 452. 183 NLRB No. 106 992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD precedent to the Board's power to direct a decer- tification election.' We similarly reject the Inter- venor's contention that, for purposes of this proceeding, the Union has merged with the Inter- venor and is defunct. There is insufficient evidence in the record before us that advance notice was given to eligible employees' that a vote would be taken on a proposed merger with the Intervenor at the meeting conducted by Maikai on July 22, 1969. In fact, the record discloses that, at best, notice of the meeting, and its purpose, was communicated haphazardly by word-of-mouth. As we find that an inadequate opportunity was afforded the members to participate in the decision to merge the Union with the Intervenor, the Intervenor's contention of an effective merger is rejected.' Nor does the evidence in the record persuade us that the incumbent Union is defunct. At the time of the defective attempt to merge with the Intervenor a majority of the employees in the bargaining unit were members of the Union, and the Union was ac- tively engaged in negotiating a new collective-bar- gaining agreement with the Employer. There is no evidence that the Union is unwilling, or unable, to 3 Lee-Mark Metal Mfg Co , 85 NLRB 1299 ' See North Electric Company , 165 NLRB 942 ° Cf North Electric Co supra e Moore Drop Forging Company, 168 NLRB 976. Although this proceeding is formally before the Board on an employee decertification petition , we have concluded that in order for the employees to fully express themselves on the question of representation , and inasmuch as the Intervenor has exhibited the requisite showing of interest , it is neces- sary to conduct a certification election in which the employees will have the opportunity of voting for the Independent , or the Intervenor. or neither union 8 In order to assure that all eligible voters may have the opportunity to be represent the employees in the bargaining unit, but, on the contrary, the Union has elected new officers and trustees and has continued to collect dues and initiation fees and pay its expenses . Inasmuch as the Union is a viable labor organization, willing and able to represent the employees in the bargaining unit, we reject the Intervenor's contention of defunctness.6 As we have found that a question concerning representation exists we shall direct an election? in the following described unit, which substantially ac- cords with the unit description in the expired con- tract and conforms with the stipulation of the parties: All full-time and part-time bus drivers em- ployed by Wahiawa Transport System, Inc., Honolulu, Hawaii, excluding office clerical em- ployees, professional employees , guards and/or watchmen, and supervisors, as defined in the Act. [Direction of Election8 omitted from publica- tion. ] informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their ad- dresses which may be used to communicate with them Excelsior Un- derwear Inc., 156 NLRB 1236, N L R B v Wyman-Gordon Co, 394 U S 759. Accordingly, it is hereby directed that an election eligibility list, con- taining the names and addresses of all the eligible voters, must be filed by the Employer with the Officer-in-Charge for Subregion 37 within 7 days of the date of this Decision and Direction of Election The Officer-in-Charge shall make the list available to all parties to the election No extension of time to file this list shall be granted by the Officer-in-Charge except in ex- traordinary circumstances Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed