Kimco Auto Products, Inc.

KIMCO AUTO PRODUCTS, INC. Kimco Auto Products, Inc.' and Local 19, Retail, Wholesale2 and Department Store Union, AFL-CIO, Petitioner. Case 26-RC-3678 June 23, 1970 DECISION AND ORDER BY MEMBERS FANNING, MCCULLOCH, AND JENKINS Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Kenneth D. Henderson of the National Labor Relations Board. Thereafter, the Employer,3 the Petitioner, and the Intervenor4 filed briefs.' Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connec- tion with this case to a three-member panel. The Hearing Officer's rulings made at the hearing are free from prejudicial error and are hereby af- firmed. Upon the entire record in this case, the Board finds: 1. The parties stipulated and we find that the Employer is engaged in commerce within the mean- ing of the Act, and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The parties stipulated and we find that the Petitioner and the Intervenor are labor organiza- tions within the meaning of the Act and claim to represent certain employees of the Employer. 3. We find that no 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, for the following reasons: The Employer is engaged at Memphis, Tennes- see, in the business of rebuilding automobile parts. On or about October 28, 1969, the Petitioner requested recognition as bargaining representative for the employees in the requested unit. The Em- ployer refused to grant recognition unless and until the Petitioner was certified by the Board. On January 9, 1970, the Petitioner filed the petition herein , seeking an election in the following unit, which the parties stipulated is appropriate and which is substantially the same as the unit covered by a current agreement between the Employer and ' The name of the Employer appears as amended at the hearing = The name of the Petitioner appears as amended at the hearing. As the Hearing Officer's report , the briefs, and the entire record in the case adequately present the issues and the positions of the parties, the Em- ployer's request for oral argument is denied 4 Local 19, Distributive Workers of America, affiliated with the National Council of the Distributive Workers of America , was permitted to inter- vene on the basis of its claim to be a party to the current collective-bargain- 993 Local 19, Retail , Wholesale and Department Store Union , AFL-CIO: All production and maintenance employees, including shipping department employees and over-the-road drivers employed at Employer's plants located at 1520, 1540 , 1558, 1562, 1570 Texas, 1400 Riverside and 229 Industrial Avenue, Memphis, Tennessee , and excluding all office clerical employees , watchmen , guards and supervisors as defined in the Act. On September 30, 1965 , pursuant to a Stipula- tion for Certification Upon Consent Election Agreement,6 Local 19, Retail , Wholesale & Depart- ment Store Union , AFL-CIO-CLC, was certified by the National Labor Relations Board as the representative of the employees involved herein. Thereafter, negotiations resulted in the execution of a collective-bargaining agreement , and the cur- rent agreement is effective from December 16, 1968, through December 16, 1971. In March 1969, a meeting was held among delegates from District 65, a division of RWDSU,7 and various locals , which Earl H. Fisher, who has been president of Local 19 since 1963 , attended. Fisher testified that at this meeting disaffiliation from RWDSU was discussed and recommended to the locals . The stated reasons for this action were: the lack of (1) Negro membership on the Interna- tional executive board, (2) autonomy within the wholesale department of the International union, and (3 ) a policy permitting the wholesale depart- ment and local unions to cooperate with the United Automobile Workers Union and the International Brotherhood of Teamsters. By letter dated April 21, 1969 , Local 19, RWD- SU, notified the International of its intention to commence disaffiliation proceedings within the lo- cal. About the same time , the National Council of Distributive Workers of America was organized, and Fisher was elected vice president. On June 12, 1969 , the membership of Local 19 voted to disaffiliate from the RWDSU . According to Petitioner's recording secretary , on September 8, 1969, approximately 150 members of Local 19 met with an International representative of RWDSU, in- cluding 70-100 employees of the Employer, and elected temporary officers for the Petitioner "because of the disaffiliation." Permanent officers were elected at a meeting on October 15, 1969. mg agreement The name of the Intervenor appears as amended at the hearing ° The request of the AFL-CIO, by counsel's letter dated April 24, 1970, for leave to submit its views on the issue presented in the present proceed- ing is granted, and its views contained therein , and the Intervenor's reply thereto, have been considered ° Case 26-RC-2451. Hereinafter referred to as the International or RWDSU 183 NLRB No. 109 994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Approximately five of the seven officers were em- ployed by the Employer. A "copy" of Local 19's charter was given to the elected officers by the RWDSU. No constitution or bylaws were adopted at the meeting. Also in September 1969, RWDSU instituted proceedings in the Federal District Court for the Western District of Tennessee against the Inter- venor seeking to obtain an injunction restraining the Intervenor from refusing to pay the per capita tax due RWDSU for the months of March through August 1969 . On October 13, 1969 , the district court ordered that the per capita tax due the RWDSU be placed in a special account pending the determination of the suit , and permitted Local 19 to commence disaffiliation proceedings in ac- cordance with the RWDSU constitution. On Oc- tober 28, 1969, the court granted the Employer's motion to intervene in the court proceeding and or- dered the Employer to continue to collect the union dues from its employees and pay them to Local 19 and to recognize Local 19 shop stewards appointed by Fisher. On November 7, 1969, the court ordered Fisher, in his capacity as president of Local 19, RWDSU, AFL-CIO, to act in compliance with the constitution and bylaws of RWDSU and of Local : 9; to dissolve his relationship with NCDWA, notify the membership that he is not serving as an officer of Local 19, DWA, or NCDWA; and to reinstate suspended shop stewards . The court order also outlined the procedure for a disaffiliation elec- tion conducted , pursuant to the court order, on November 20 and 21. On December 19, 1969 , the court declared Local 19 to be disaffiliated from RWDSU and denied the motion of RWDSU to declare the disaffiliation not effective. The tally of ballots shows 384 votes were cast for disaffiliation , 260 against, 5 ballots were void, and 5 were challenged. There were approxi- mately 1 , 100 members of Local 19 at the time of the election and approximately 685 in the bargain- ing unit involved . On January 21, 1970, Fisher, as president of Local 19, petitioned the court for an injunction to prohibit RWDSU from using the designation Local 19 within the Intervenor's ju- risdiction . As of the time of the hearing , no action had been taken on this request. Subsequent to the disaffiliation decree , the of- ficers of Local 19, who had been reelected in April 1969, except for the secretary-treasurer who declined to seek reelection, continued in office. In addition, the approximately 10 to 15 job stewards and stewardesses at the Employer's plant prior to the disaffiliation have continued in their positons, and the record shows they have continued to file grievances on behalf of the employees of the Em- ployer. Fisher testified that he has continued to process grievances on behalf of these employees, that there is an arbitration proceeding pending, and that he has retained counsel to represent the Inter- venor in that proceeding. Employer 's Personnel Director John F . Wright testified that he has had no written notice from any party of any change in the grievance committee, and that grievances have been filed since the disaf- filiation proceedings . He stated , however, that he has refused to process these grievances because he does not know with which local he should deal. Wright also testified that Murl Householder, an In- ternational representative of RWDSU, informed him that if the Employer dealt with the Intervenor the Employer would be in violation of the contract and would have an immediate work stoppage. The record shows that , despite a hold harmless agree- ment from the Intervenor, the Employer ceased re- mitting employee membership dues to the Inter- venor in January 1970, claiming it did not know which local was entitled to them. Fisher testified that the Intervenor administers approximately 21 collective -bargaining agreements in addition to the existing agreement with the Em- ployer, no other party to these agreements has questioned the Intervenor 's right to represent the employees , and only the Employer has refused to check off dues. The record shows that the Intervenor has retained the office location , as well as all books, records, and assets of Local 19 . The constitution of the RWDSU does not require reasons for disaffilia- tion action and provides that a local 's books , funds, contracts, and other property shall at all times remain the exclusive property of the local. The record also shows that the current agreement between Local 19 and the Employer was signed by local union representatives, including Fisher, but was not signed by any RWDSU representative, although an International representative did attend some of the negotiation meetings . In this respect, the International constitution provides that the right to bargain collectively shall lie with the local union and with the International Union or its representative "when the local union so requests," and that, if ratified by a majority vote, the negotiated contract shall be drafted and signed by "proper officers of the local union and thereupon it shall be binding upon all members in good stand- ing." On January 16, 1970 , the RWDSU picked up the Intervenor's local charter, and the record shows that the Intervenor has affiliated with National Council of Distributive Workers of America. New members of Local 19, Distributive Workers of KIMCO AUTO PRODUCTS, INC. America, affiliated with NCDWA, sign a card showing this affiliation. The Intervenor, however, has not sought new checkoff authorizations. Fisher testified that the Intervenor plans to change the authorization card at the end of the contract term. The Petitioner and the Employer take the posi- tion that the existing contract is not a bar to an election because a schism has occurred in the cer- tified bargaining representative. The Intervenor as- serts there is a contract bar and moved the petition be dismissed. Both Petitioner and Intervenor claim to be the collective-bargaining representative party to the contract. In the Hershey Chocolate Corporation case,8 the Board determined that a schism exists in a contract- ing union which removes the contract as a bar to an election where (1) there is a basic intraunion con- flict over policy at the highest level of an interna- tional union or within a federation which results in a disruption of existing intraunion relationships, and (2) action is taken by the employees in the bar- gaining unit arising out of the basic conflict which creates such confusion in the bargaining relation- ship that stability can be restored only by an elec- tion. In Hershey9 the Board distinguished situations, such as existed in the Prudential Insurance Com- pany of America case,10 as not creating a schism but, at most, a disaffiliation based on a disagree- ment between an international and an individual local which did not result in the confusion and in- stability inherent in a true schismatic situation. In Prudential, a dispute arose between the local and the international during negotiations for a master contract which resulted in the local's voting to disaffiliate, to form a new union, and to assign its contract to the new union. There, as here, the local had been certified, had bargained for, and had ex- ecuted the contract, and the international sought to reestablish the local. After receiving conflicting claims to representation, the employer held the checked-off dues in escrow. Under these circum- stances, the Board found "the attempt by the minority group ... to repudiate the assignment and breathe new life into the Local ... placed [the Lo- 8 121 NLRB 901 9 Supra at 911 10 106 NLRB 237 See also Clayton & Lambert Manufacturing Company, 128 NLRB 209, 211 1 ' Supra at 241 995 cal] in substantially the same position as that of any rival union which seeks designation as representa- tive of an Employer's employees at an inap- propriate time."" In the present case, no "new" organization resulted from the disaffiliation action of the con- tracting local and no "assignment" of the existing agreement was effected. Thus, the local'12 which alone executed the agreement, remained the same subsequent to the disaffiliation decree. As stated above, the same officers, with one exception, con- tinued in office and the same job stewards and stewardesses continued in their positions; and these same individuals have continued to represent the Employer's employees in administering the existing agreement. There is no contention or evidence that the contracting local is defunct.13 Moreover, as stated above, that local has, pursuant to the RWDSU constitution, retained the contracts, books, records, funds, and other property. Thus, it would appear that any alleged "confusion" which may exist in the bargaining relationship could be at- tributed to the action of the RWDSU subsequent to the disaffiliation, rather than to any open split at the highest level of the International and within the certified local "followed by intensive campaigning to secure the allegiance of the local union members on the basis of the policy differences which were in- itially responsible for the basic conflict."14 In these circumstances, and upon the entire record in this case, we find the disaffiliation action taken by the employees in the bargaining unit did not create such confusion in the bargaining rela- tionship as to remove the contract as a bar to an election. Accordingly, as the existing collective-bargaining agreement, which will not expire until December 16, 1971, is otherwise a bar, we shall dismiss the petition. ORDER It is hereby ordered that the petition filed herein be, and it hereby is, dismissed. 'p Fisher executed the agreement on behalf of Local 19 "Crane and Breed Casket Company, 175 NLRB 206, Gate City Optical Company, a Division of Cole National Corporation, 175 NLRB 1059 11 B & B Beer Distributing Company, Inc , 124 NLRB 1420, 1422 427-258 O-LT - 74 - 64