Jno. H. Swisher & Son, Inc.

68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Jno. H. Swisher & Son, Inc. and Distributive Workers of America and Local 589,1 Petitioner. Case I2-RC-4402 February 14, 1974 DECISION AND DIRECTION OF ELECTION By CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS Upon a petition filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing2 was held before Hearing Officer Peter E. Donnelly on September 25 and 26, 1973. Following the hearing, this case was transferred to the National Labor Relations Board in Washington, D.C., pur- suant to Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended. Thereafter, the Petitioner, the Employer, and Cigar Makers International Union of America, AFL-CIO, and Locals 86 and 119, the incumbent Union, filed briefs. On November 5, 1973, the Board received a motion to reopen the record on behalf of the Cigar Makers International Union. The Union asked that the record show that Locals 119 and 86 voted to merge on October 24, 1973, and have requested that the Cigar Makers International issue a new charter for the merged locals.; On November 8, 1973, the Board received Petitioner's stipulation that the record should be reopened to admit the Union's affidavit. We accept Petitioner's stipulation and reopen the record to admit evidence that Local 119 and Local 86 have voted to merge. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Hearing Officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, and the briefs filed herein, the Board finds: 1. The Employer is a Delaware corporation with a place of business located in Jacksonville, Florida, where it is engaged in the business of producing tobacco products, principally cigars. The parties stipulated, and we find, that during the past 12 months, a representative period of time, the Employ- er in the course and conduct of its business received i Petitioners name appears as amended at the hearing 2 The International Association of Machinists and Aerospace Workers (LAM) was allowed to intervene in order to determine if Petitioner intended to include any employees presently represented by it After Petitioner stipulated that it had no intention of including employees represented by the IAM, the LAM withdrew from the proceedings goods, materials, and supplies valued in excess of $50,000 directly from points located outside the State of Florida. During the same period of time, the Employer shipped from its Jacksonville plant prod- ucts valued in excess of $50,000 directly to points outside the State of Florida. Accordingly, we find that the Employer is engaged in commerce within the meaning of the Act and that it will effectuate the purposes of the Act to assert jurisdiction herein. 2. Local 86 and Local 119 of the Cigar Makers International Union and Local 589 of the Distrib- utive Workers of America are labor organizations within the meaning of Section 2(5) of the Act, as amended. 3. The Employer and the Union argue that the contract, effective for the period May 13, 1973, to May 31, 1975, bars an election. They note that only one contract has been negotiated, that raises and benefits are plantwide, and that bargaining is conducted jointly. Although the Employer concedes that racial segregation existed in the Jacksonville plant until 1963, it emphasizes that all departments and classifications are presently integrated, except for one department composed entirely of Black women. The Employer also stresses its affirmative efforts to increase the number of Black employees in supervisory and skilled jobs. Petitioner asserts that the contract between the Employer and the incumbent Union is not a bar to the election because the Union is established along racial lines. Petitioner points to the separate griev- ance committees for each local and the bargaining procedures which emphasize the independence of each local. In 1939, as a result of an election, Local 119 was formed to represent Black employees who worked primarily in preproduction at the Jacksonville plant. In 1940, Local 86 was organized to represent White employees.' At that time. the plant was racially segregated by departments: White employees worked in production on the second and third floors, while Black employees did preproduction work in the basement. Today, Black employees work in most departments although the "Bull gang," which un- loads materials into the warehouse, is still predomi- nately Black and the stripping department, which prepares tobacco leaves, is comprised entirely of Black women. Between 1963 and 1964, the first Black employees entered Local 86, it was not until April and May 1973 that some White employees joined Local 119. i I he merged locals have yet to devise bylaws and hold an election of officers i The incumbent Union argues that municipal laws prohibited meetings of both races and therefore a single local was impossible. Such restraints, however, were removed in the 1950's 209 NLRB No. I JNO. H. SWISHER & SON 69 As of August 1973, Local 86 had 548 White members" and 64 Black members. Local 119 had a membership consisting of 161 Black, and 7 White, employees as of June 1973.6 There are approximately 1,096 unit employees out of a plantwide total of 1,450 employees. Approximately 33 percent of the unit employees are Black. No White employee has ever been an officer of Local 119 and Local 86 has never had a Black officer. Meetings of Local 86 are held in a building rented from the Employer located on company property while Local 119 holds its meetings at a library located in the Black community. There are separate grievance committees for each local provided for under the current contract. According to Sam Walker, vice president of Local 119, no shop committeeman of Local 119 has handled a grievance of an employee belonging to Local 86. Marie Harrison, vice president of Local 86, confirmed this in her testimony. Although article X, sections 1(b) and 3, of the contract provides for a joint council comprised of the executive boards of both locals to mediate grievances. Sam Walker testified that he had never attended a meeting of such a council and that he doubted it ever had existed. Bennie Brown, former president of Local 119, also testified that no joint council had been formed. The one time that both local presidents, the international presidents, and the shop committeemen met to discuss a grievance occurred when procedural changes in the finishing department affected several shifts and a substantial number of people. It appears from the record that, where an individual member is concerned, only the shop committeeman of the employee's local will handle the grievance. There are separate bargaining committees for each local. During the last negotiating period, each local put forth its own set of proposals. According to Marie Harrison, vice president of Local 86, no one spoke on behalf of both locals and each local developed its own set of proposals. Elmina Crews, president of Local 86, testified that up until 10 years ago each local represented certain job classifications. Although most classifications are now racially mixed, only Local 119 proposed wage increases for the all Black stripping department. Contrary to the contentions of the Employer and Union that the true bargaining agent is the interna- A few employees of other racial backgrounds are included in the category of white employees 6 These figures are based on dues-checkoff cards held by the Employer as or June 1973 testimony during the hearing indicated that Local 119 currently has 164 members, but the exact racial composition of the membership is unknown Sam Walker , vice president of Local 119, testified that since June 1973 some white employees have left I ocal 119 r Local 86 voted for the contract, 55 to 45, and Local 119 voted against the contract , 22 to 10 The Employei argues that the vote in Local 383 at its Waycross. Georgia, plant should he included in the tally of votes The record indicates that , while Local 383 negotiated with the Employer at the tional, convincing evidence that these two locals are separate bargaining representatives is the fact that the Employer put the current contract into effect after Local 86 ratified it even though Local 119 voted against it. If the Locals had been viewed as a single entity, the contract would have been rejected by a vote of 67 to 65.7 After further bargaining, Local 119 agreed to the contract, and pay raises for members of Local 119 were made retroactive to the date on which Local 86 ratified the contract. The fact that a merger vote has occurred does not obscure the fact that at the time the petition was filed the two locals were separately organized primarily along racial lines. Since the enunciation of rules governing the application of the contract-bar rule in Appalachian Shale Products Co.,8 the Board looks to the date on which the petition is filed to determine the status of the contract. Therefore, at the time the petition was filed, the current contract could not bar an election because the contract-bar doctrine does not recognize racially discriminatory contracts. This exception to the contract-bar rule was discussed in Pioneer Bus Company, Inc,`i wherein the Board said: [W]here the bargaining representative of employ- ees in an appropriate unit executes separate contracts, or even a single contract, discriminat- ing between Negro and white employees on racial lines, the Board will not deem such contracts as a bar to an election.'() The contracts which separated the employees along racial lines in that case were considered to be sufficient evidence of discrimination. Similarly, in the instant case, the contract which represents the employees at the Jacksonville plant along racial lines is also discriminatory. In Appalachian Shale Products, supra, the Board also stated that in order for the contract-bar rule to be applicable the contract must represent an appro- priate unit. The Board decided in Safety Cabs, Inc., ii that race is not a valid determinant of the appropri- ateness of a unit. Consequently, the current contract does not bar an election because it does not represent an appropriate unit due to the unjustifiable separa- tion of the two locals on racial grounds. We recognize that the Union and Employer have moved to eliminate racial discrimination in the plant same time that Locals 86 and 119 did. it submitted separate proposals and executed a separate contract with the Employer Therefore. I oval 383 cannot he considered part of the Jacksonville bargaining unit and its vote should not obscure the behavior of the Employer towards the two Jacksonville locals involved in the present case 8 121 NLRB 1160 See also Deltere Metal Furniture (ompanv, 121 NLRB 995 v 140 NLRB 54 i'i Id at 55 11 Safety Cabs, Inc, and New Deal C'ah Company. Inc, 173 NLRB 17 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and we do not want to discourage further efforts. However, at the same time, Section 9 of the Act cannot be used to insulate labor organizations which represent inappropriate units because of their estab- lishment along racial lines . We therefore find that a question affecting commerce exists concerning the representation of employees within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act, and we shall therefore direct an election in the appropriate unit. 4. The parties have stipulated, and we find, that the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All regular full-time and part-time production and maintenance employees employed by the Employer at its facility located at 459 East 16th Street, Jacksonville, Florida, excluding all em- ployees represented by International Association of Machinists and Aerospace Workers, Local Lodge No. 1003, and all office clerical employees, guards, professional employees , and supervisors as defined in the Act. 5. By holding that the contract herein is not a bar, we are, of course, not precluding the newly merged local from seeking a place on the ballot in conformity with our customary rules and procedures relating thereto. [Direction of Election and Excelsior footnote omitted from publication.]