East Mfg. Corp.

EAST MANUFACTURING CORPORATION East Manufacturing Corporation and Freight Drivers, Dockworkers & Helpers Local Union 24, Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Petitioner. Case 8-RC- 11323 May 4, 1979 DECISION ON REVIEW AND ORDER BY MEMBERS PENELLO, MURPHY, AND TRUESDALE The Employer is an Ohio corporation which manu- factures aluminum dump trailers at its Randolph, Ohio, plant. The East Employees Association is an unaffiliated labor organization which represents the Employer's production and maintenance employees at this facility. On April 17, 1978, the Petitioner filed an election petition with Region 8 claiming to repre- sent these same employees. Collective bargaining for the East Employees Association (herein called the Association) is the responsibility of its executive com- mittee which consists of seven elected members each of whom represents the employees of a single depart- ment at the plant.' The Regional Director for Region 8 issued a Decision and Direction of Election on May 31, 1978, in which he concluded that a disclaimer of representational interest executed and filed during the hearing by the Association and containing the names of six executive committee members removed the As- sociation's collective-bargaining agreement with the Employer as a bar to the holding of an election. The Regional Director also concluded that certain alleged improper conduct of the Hearing Officer was not ob- jectionable and did not prejudice the Employer. The Employer thereafter, in accordance with Section 102.67 of the National Labor Relations Board's Rules and Regulations, Series 8, amended, filed a request for review of the Regional Director's decision, re- quested the election be stayed, and filed a motion to reopen the record. The Petitioner subsequently filed an opposition statement. On June 29, 1978, the National Labor Relations Board granted the request for review and stayed the scheduled election. Both the Employer and the Peti- tioner have filed briefs in support of their respective positions. 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 au- thority in this proceeding to a three-member panel. The East Employees Association and the Employer commenced negotiations for a new contract in April 1977. Numerous bargaining sessions between man- ' The Employer's plant consists of eight departments. One executive com- mittee member represents the employees of two departments. agement and the Association's executive committee culminated in the execution of a valid collective-bar- gaining agreement on September 25, 1977, which ex- pires in 1980. Since the execution of the contract and, in fact, until approximately 1 month prior to the hearing, the Company and the Association's executive committee met regularly to discuss matters regarding both the contract and the employees' general employment conditions. On April 27 or 28, approximately 1 week prior to commencement of the hearing, several execu- tive committee members conferred with a company official regarding similar matters. The Association filed a grievance on January 10, 1978, alleging that the Company had failed to comply with a particular contractual provision. This matter eventually was submitted to arbitration and an arbitral hearing was conducted on June 6, 1978, a date subsequent to the conclusion of the 4-day representation hearing.' The representation hearing commenced on May 8, 1978. Three officers of the Association's executive committee attended, but the Association did not in- tervene. During the second day of the hearing the executive committee members requested a private meeting with the Hearing Officer. The hearing was recessed for I hour. The committee members ex- pressed a desire to disclaim interest in further repre- senting the petitioned-for employees and requested that the Hearing Officer draft a disclaimer of interest. The Hearing Officer complied, the three committee members executed the document, and, once the hear- ing resumed, the disclaimer was introduced into evi- dence.3 During the hearing neither the Association nor any member expressed a present willingness or ability to represent the Employer's employees or to administer the extant contract. In its brief submitted to the Regional Director, the Employer argued, among other things, that its current collective-bargaining agreement with the Association bars the holding of an election and that the disclaimer is a subterfuge intended to create a technical defunct- ness inimical to policies of the statute, and therefore it is ineffective. Further, the Employer alleged that the executive committee members who attended the hear- ing improperly assisted the Petitioner. The Regional Director, however, was unable to discern either evi- dence of collusion or an agreement between the Asso- ciation and the Petitioner, or evidence of a design to 2The Employer's motion to reopen the record seeks to introduce the stenographic record of the June 6 hearing into evidence. 3 Two disclaimers were executed and introduced into evidence during the hearing. The first, as noted above, contained the signatures of three of the seven executive committee members. The second contained the signatures of six members, including the original three. The additional signatories did not attend the hearing and were presented with the document, a photocopy of the original, in the plant prior to completion of the hearing. 242 NLRB No. 5 5 I)Fl('ISIONS Ot- NA'I'IONAL LABOR RELATIONS BOARD avoid the contract. Moreover, the Regional Director noted that since the execution of the contract the bar- gaining unit had expanded significantly. He, there- fore, found the disclaimer effective and directed an election. We disagree with the Regional Director's conclusion and hold that the Association's disclaimer fails to remove its valid collective-bargaining agree- ment as a bar to the holding of an election and that, accordingly, no question concerning representation can be raised at this time. The Employer maintains there is sufficient evi- dence of collusion between the Association and the Petitioner to invalidate the disclaimer. But even as- suming an absence of' such evidence, the Employer argues, the disclaimer is ineffective because the Asso- ciation failed to comply with its bylaws. Finally, the Employer claims the Regional Director improperly determined that the Association is defunct. An examination of the Regional Director's decision discloses that the Regional Director's conclusion is not based on a determination of defunctness, but on the incumbent's disclaimer of interest. The Associ- ation's nonintervention, failure to express a present willingness or ability to represent its members and administer the contract, and an increase in the size of the bargaining unit since the execution of the contract were merely additional considerations advanced by the Regional Director in support of his refusal to find the contract a bar to an election. 4 The record contains no evidence that the East Em- ployees Association is either defunct or unable to ad- minister the extant contract. Numerous meetings prior to the hearing between the executive committee and management to discuss employment matters, a meeting between several committee members and a company official approximately 1 week prior to the hearing, and the arbitration proceeding demonstrate the continuing vitality of the Association.5 In our view the Regional Director mistakenly con- cludes that, absent evidence of collusion or an agree- ment between the Petitioner and the Association, the ' The size of the bargaining unit has increased approximately 30 percent since the contract was executed. The increase is therefore of insufficient mag- nitude to remove the contract as a bar. General Extrusion Company. Inc., 121 NLRB 1165 (1958). The Employer contends that the Association's participation in the arbi- tration proceeding is inconsistent with its disclaimer of interest and un- equivocally establishes the Association's continuing efficacy. Disclaimers, of course, are accorded less weight if inconsistent with contemporaneous or subsequent union conduct. Without more, the Association's participation in the proceeding, the culmination of a past grievance, would not be incompati- ble with its disclaimer of present representative status. Franz Food Products of Green Forest, Inc., 137 NLRB 304 (1962). But, in conjunction with the Asso- ciation's other above-mentioned activities, the arbitration proceeding is some evidence of the Association's ability to administer the contract and, accord- ingly, the Employer's motion to reopen the record for the introduction of the stenographic record of the arbitration hearing is granted. That document is received in evidence and is hereby made part of the record. disclaimer must be accorded legal effect. Such a result ignores both the peculiar circumstances of this case and the compelling policy considerations which are a cornerstone of the statutory scheme. The Board's contract-bar doctrine is intended to promote indus- trial stability between contractual partners and to af- ford employees a reasonable opportunity to change or eliminate their bargaining representative. Bargaining relationship stability is no less a concern for manage- ment than it is for labor organizations. Each party has substantial investments in the bargaining process and their investments deserve, where practicable, both deference and protection. Simply, to permit an incumbent and vital labor organization to disavow its lawful contractual obligations when it is not defunct derogates our contract-bar doctrine.6 The evidence in this case reveals that certain mem- bers of the Association were dissatisfied generally with the Association's effectiveness, particularly with respect to such matters as contract interpretation and grievance resolution. The disclaimer, according to Robert McConnell, president of the Association at the time of the hearing, was the direct result of such disgruntlement. Understandably, those executive committee members who attended the hearing and executed the disclaimer might reasonably have con- cluded a disclaimer the most expeditious method to alleviate such disaffection. But disclaimers executed under such circumstances are inconsistent with the Board's contract-bar doctrine.7 The Petitioner avers that Board decisions in Na- tional By-Products Company, 122 NLRB 334 (1958); Plough, Inc., 203 NLRB 121 (1973); and Manitowac Shipbuilding, Inc., 191 NLRB 786 (1971), deflate the Employer's arguments. An effective disclaimer, the Petitioner argues, removes a contract as a bar to an election. But an examination of those decisions dis- closes dissimilar factual patterns and provides inap- preciable support for the Petitioner's position. We instead believe that the important policy consider- 6 Members Murphy and Truesdale note that we are not here concerned with the nght of the Association to affiliate with another orgamnzation, in which case the collective-bargaining agreement between the Employer and the Union would remain in effect until the stated expiration date. See, e.g., Amoco Production Company, 239 NLRB 1195 (1979). Member Truesdale agrees that to permit the Association to disavow its lawful contractual obligations when it is not defunct derogates our contract- bar doctrine. In this regard, however, Member Truesdale notes that the As- sociation is a local labor organization which consists only of employees of the Employer. These employees, who hold the fate of their organization in their own hands, cannot be permitted, absent defunctness, to simply disclaim interest in themselves and select a new labor organization as bargaining representative perhaps in an attempt to secure higher wages and benefits than are set forth in their current contract. ? Mack Trucks, Inc., 209 NLRB 1003 (1974). See, generally, Aircraft Tur- bine Service, Inc., 173 NLRB 1709 (1968), and Gatre City Optical Company, a Division of Cole National Corporation, 175 NLRB 1059 (1969). 8 Mack Trucks, Inc., supra at 1004, fns. 3 and 5. 6 EAST MANUFACTURING CORPORATION ations discussed in Gate Citv Optical and Mack Trucks, supra, are relevant to the proper resolution of this issue. To permit a viable contracting representa- tive such as the East Employees Association to dis- avow its lawful contractual commitments during the term of an enforceable contract, even if the disavowal stems from an awareness of employee dissatisfaction with that representative, impugns the integrity of the collective-bargaining process and encourages circum- vention of our contract-bar doctrine. Gate City Opti- cal plainly demonstrates our disinclination to permit such circumvention, and today we reaffirm this pol- icy. We, therefore, find the Association's disclaimer of interest ineffective and hold that its collective-bar- gaining agreement with the Employer is a bar to an 7 election. We accordingly shall order that the petition be dismissed. 9 ORDER It is hereby ordered that the petition he, and it hereby is, dismissed. T 'he mplo,,er also alleges that certain conduct o the Hearing Officer was bhjectioinahle and prejudicial, including the Hearing Officer's drafting of the disclaimer. The Regional Director found that the Hearing Officer's prep- aration of the disclaimer was technical n nature and il the tpe permitted by Board procedure and consequently did not prejudice the Employer's po- sition The Hearing Officer's drafting of the disclaimer stemmed from a re- quest of the executise committee members who attended the hearing Be- cause we have ordered that the petition in this case he dismissed, we find t unnecessary to decide whether the Hearing Officer's drafting of the dis- claimer prejudiced the Fmploxer's position. Nor d we find it necessary to address the Employer's allegations regarding both he Hearing Officer's other conduct and the association's purported fallure t comply ith its blaws