Bluff City Transfer & Storage Co.

604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bluff City Transfer & Storage Company' and Local 19, Retail, Wholesale and Department Store Union, AFL-CIO, Petitioner. Case 26-RC-3712 July 21, 1970 DECSION 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 Paul M. Coran of the National Labor Relations Board. Thereafter, the Employer, the Petitioner, and the Intervenor2 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 interstate transportation of freight. On or about February 18, 1970, the Petitioner requested recognition as bargaining representative for the em- ployees in the requested unit. On February 24, the Petitioner filed the petition herein, seeking an elec- tion in the following unit, which the parties stipu- lated is appropriate and which is substantially the same as the unit covered by a current agreement between the Employer and Local 19, Retail, Wholesale and Department Store Union, AFL-CIO: All warehousemen, packers, truckdrivers, help- ers, craters, mechanic, and salespeople em- ' The name of the Employer appears as amended at the hearing ' 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- ing agreement ployed at Employer's plant operations located at 3569 Air Park, Memphis, Tennessee, and excluding all office and clerical employees, su- pervisors, and guards as defined in the Act. On September 23, 1968, pursuant to a Stipula- tion for Certification Upon Consent Election Agreement,3 Local 19, Retail, Wholesale & Depart- ment Store Union, AFL-CIO, was certified by the National Labor Relations Board as the representa- tive of the employees involved herein. Thereafter, negotiations resulted in the execution of the afore- mentioned collective-bargaining agreement, which is effective from May 9, 1969, through May 8, 1972. This agreement was signed on behalf of the certified union by Earl H. Fisher, president of Local 19, and a three-member employee shop committee. The agreement was not signed by any RWDSU representative. Article XVII of the existing collective -bargaining agreement provides for checkoff of union dues, and the Employer introduced into evidence checkoff authorizations signed by 19 of the approximately 25 employees in the appropriate unit at the time of the hearing in this proceeding.4 All but two of these authorizations were also signed by Earl H. Fisher on behalf of the certified union. By counsel's letters dated October 28, 1969, and February 18, 1970, respectively, the Petitioner notified the Employer that Fisher was no longer president of Local 19, RWDSU, AFL-CIO, and that Eugene Newbern was the duly elected representative of Local 19, RWDSU; and requested the Employer not to deal with Fisher or transmit to him or to Local 19, DWA, NCDWA, any moneys deducted pursuant to the above checkoff authoriza- tions. W. R. Almond, Jr., secretary and operations manager of the Employer, testified that the Em- ployer complied with this request. Almond also testified that there has been no attempted revoca- tion of any of the dues-checkoff authorizations; no grievances have been filed under the existing agree- ment; no work interruptions have occurred; and the relationship between the Company and the Union has been stable and pleasant. The only other wit- ness at the hearing, Walter McGoughy, who signed the collective-bargaining agreement as an em- ployee-member of the shop 'committee, also testified that no grievances have been filed under the agreement and no work interruptions have oc- curred. He further testified that the remaining two members of the shop committee, who also signed ' Case 26-RC-3235 ' At the time of the election , there were 31 eligible voters in the ap- propriate unit , and 14 cast ballots for the Petitioner , 8 against, and 4 were challenged 184 NLRB No. 83 BLUFF CITY TRANSFER & STORAGE COMPANY 605 the existing agreement , have continued to serve on the committee subsequent to the disaffiliation vote of November 20-21, 1969. By letter dated February 16, 1970, and signed by Earl H . Fisher, president, the Employer was notified that more than 51 percent of the members of Local 19, RWDSU, AFL-CIO, voted on November 20-21, 1969, to disaffiliate from the RWDSU, AFL-CIO, and that Local 19 had af- filiated with the National Council of Distributive Workers of America. By counsel 's letter dated March 12, 1970, the Employer informed all parties that because of these conflicting demands, it did not know to which of the parties these moneys should be paid ; and that , upon advice of counsel, it had established a special bank account into which it had paid the moneys checked off for February 1970; and that it would continue to do so until or- dered to do otherwise "by order of a tribunal of competent jurisdiction or until such time as it no longer must risk dual liability." The labor organizations herein are the identical labor organizations involved in Kimco Auto Products , Inc., 183 NLRB No. 109. Inasmuch as the issue of schism and underlying facts relating to their alleged intraunion conflict are the same in both Kimco and the present case , the parties, by stipula- tion, moved that the Board take administrative notice of the record in Kimco. As in Kimco, the Petitioner takes the position that the existing contract is not a bar to an election because a schism has occurred in the certified bar- gaining representative , and both the Petitioner and the Intervenor claim to be the collective-bargaining representative party to the contract . However, the Employer in the present proceeding, unlike the Em- ployer in Kimco, agrees with the Intervenor that the existing agreement constitutes a bar to a represen- tation election and thus the petition should be dismissed . In the alternative , the Intervenor submits that the Board , in its discretion , should issue an amended certification in the Intervenor's name. In these circumstances , and upon the entire record in this case and in the Kimco case , we find, for the reasons set forth in Kimco, that the disaf- filiation action taken by the employees in the bar- gaining unit did not create such confusion in the bargaining relationship as to remove the contract as a bar to an election. Accordingly , as the existing collective-bargaining agreement , which will not expire until May 8, 1972, 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.