United Truck and Bus Service Co.

UNITED TRUCK AND BUS SERVICE CO. United Truck and Bus Service Co. and Rhode Island General Council on Behalf of Local Union 1033, Laborers' International Union of North Amer- ica, AFL-CIO, Petitioner. Case -RC-16315 July 29, 1981 DECISION AND ORDER DISMISSING PETITION Following a second election held October 1, 1979, the Regional Director for Region 1 on March 13, 1980, issued his Report on Challenged Ballots and Second Report on Objections. Thereaf- ter, the Employer timely filed exceptions to the Regional Director's report. On July 18, 1980, while the Employer's excep- tions were pending before the Board, the Employer filed with the Board a "Motion to Dismiss Repre- sentation Petition" on the ground that Local Union 1033 is not a labor organization within the meaning of Section 2(5) of the National Labor Relations Act, as amended. The Employer averred that the president of Local Union 1033 has sworn under oath at a hearing before the National Labor Rela- tions Board in a different matter that "Local 1033 is not a labor organization as defined in the Act," that Local 1033 has no members who are "employ- ees as defined in the Act," that "people employed by private employers" are not "eligible for mem- bership in Local 1033," and that the organization that was trying to organize the drivers of the Em- ployer and that filed the petition herein was not Local 1033. The Employer further averred that under the charter, bylaws, local rules, and constitu- tion of Local 1033 it lacks the authority to orga- nize employees of private employers such as the Employer. On August 11, 1980, the Board issued a Notice To Show Cause why the Board should not accept the Employer's submissions as accurate, and, if ac- cepted, should not deem them a sufficient basis to grant the Employer's motion and dismiss the in- stant representation petition. On August 25, 1980, the Petitioner filed a re- sponse to the Notice To Show Cause wherein it as- serts that it is a labor organization as defined in the Act and it denies that the president of Local Union 1033 made the statements as asserted in the Em- ployer's motion, under oath or otherwise. Thereafter, on September 10, 1980, the Board issued an order directing the Regional Director for Region I to conduct a further hearing to resolve the issues raised by the Employer's motion. Such further hearing was conducted on October 22 and November 6, 1980.' 'Contrary to Petitioner's denials in its response to the Board's Notice To Show Cause, Local Union 1033 conceded at the further hearing 257 NLRB No. 51 On December 19, 1980, Hearing Officer Irwin P. Weiner issued the attached report (omitted from publication) in this proceeding finding, inter alia, that the Petitioner is a labor organization and rec- ommending that the Board dismiss the Employer's motion. Thereafter, the Employer filed exceptions with supporting argument. The Board has considered the record and the at- tached report in light of the exceptions and argu- ment and has decided to adopt the rulings and find- ings of the Hearing Officer only to the extent con- sistent herewith. The designation of the Petitioner on the petition filed herein is "Rhode Island General Council on behalf of Local Union 1033, Laborers' International Union of North America, AFL-CIO." By defini- tion, this designation indicates that the Rhode Island General Council, whose status as a labor or- ganization is not disputed,2 filed the petition herein as an agent for Local Union 1033. Thus, should it be determined that a majority of the Employer's employees voted to be represented by the Petition- er, it is Local Union 1033, and not the Rhode Island General Council, which would be certified as their exclusive collective-bargaining representa- tive.3 Under these circumstances, we find, in agree- ment with the Employer, that it is the status of Local Union 1033 as a labor organization which is pivotal to the resolution of this matter. Section 2(5) of the National Labor Relations Act, as amended, sets forth two criteria which an organization must meet in order to constitute a herein that the testimony of its president at the hearing in the matter re- ferred to in the Employer's motion wa accura;lle and true." See fit 3, infra. 2 The Rhode Island General Council is a District Council chartered b; the Laborers' International Union of North America, AFI C10() a In this regard, we note that there is substantial evidence in the record indicating that this was not the intention of Local Union 1033 or the Rhode Island General Council. Although the campaign materials distrih- uted by the Petitioner indicated that a "yes" vote was a ote for I.ocal Union 1033, Joseph Virgilio. president of Local Union 1033 vrice presi- dent of the Rhode Island General Council, and an International repre- sentative of the Laborers' International Union of North America, AFL- CIO, testified under oath at a hearing before the Board in a different matter that Local Union 1033 was listed on the petition herein "solely for identity purposes" because "we didn't feel that anyone kne whal the Rhode Island General Council was or who it was or ss hat kind of orgalli- zation it is." Virgilio further testified that the Rhode Island General Council had a "plal." if Local Union 1033 won the election ;ld .a1 or- tifitled by the Board. to create a new local union to represent school hus drivers who are private employees and simply "put" the ELmplo.!cr's eni- ployees in that local union Although it is proper for one labor organization to file a petitlion on behalf of an after-formed organization (see, e g Sherold CrtaulA. I-., 104 NLRB 1072 (1953)), this is not what occurred here Rather. the Rhode Island General Council filed a petition on behalf of an11 tilxilngl local union and led the Employer's employees to beliee thlt Ihal tiilon would be their representative. while maintaintniig a secret "plani" to uhli- lute a different local union for that certified h the Board While t ilnd this to be an intentional deceptiorn playedl on the limploer'r enilploe , in view of our disposition of this maticr sse firld it ullece,,ar at Ithis time to take any action. 343 DECISIONS OF NATIONAL LABOR RELATIONS BOARD labor organization: (1) the organization must be one "in which employees participate" and (2) the organi- zation must exist "for the purpose, in whole or in part, of dealing with employers concerning griev- ances, labor disputes, wages, rates of pay, hours of employment, or conditions of work." (Emphasis supplied.) For the reasons stated below, we find that Local Union 1033 satisfies neither of these cri- teria and thus is not a labor organization as defined in our Act. Article III, section l(a), of the constitution of Local Union 1033 provides that "[i]n order to be eligible for membership [in Local Union 1033] a person must be working at the calling within the ter- ritory of [Local Union 1033]." (Emphasis supplied.) In this context, the "calling" of Local Union 1033 is synonymous with its craft jurisdiction as char- tered by the Laborers' International Union of North America, AFL-CIO. The charter of Local Union 1033 describes its craft jurisdiction as being "public employees," or, in other words, employees of public employers. It is well settled that public employers are not "employers" as defined in Section 2(2) of the Act and that the employees of such employers are not "employees" as defined in Section 2(3) of the Act. Since eligibility for membership in Local Union 1033 is expressly limited to public employees, it is clear that Local Union 1033 is not an organization in which employees, as defined in the Act, partici- pate. Furthermore, since the membership of Local Union 1033 is limited to persons employed by public employers, Local Union 1033 does not exist for the purpose of dealing in any manner with em- ployers as defined in the Act. Under these circum- stances, we conclude that Local Union 1033, La- borers' International Union of North America, AFL-CIO, is not a labor organization as defined in Section 2(5) of the Act.4 Accordingly, we will grant the Employer's motion and dismiss the peti- tion filed herein. ORDER It is hereby ordered that the petition herein filed by Rhode Island General Council on behalf of Local Union 1033, Laborers' International Union of North America, AFL-CIO, be, and it hereby is, dismissed with prejudice. ' Cf. Gino Morena. d/b/a Gino Morena Enterprises, 181 NLRB 80H (1970), wherein the Board found that the provisions of petitioner's consti- tution did not restrict membership exclusively to government employees and thus petitioner's willingness to function as a bargaining agent under the Act was controlling. 344