Georgia Kaolin Co.

GEORGIA KAOLIN CO. 485 Georgia Kaolin Company and Independent Workers of North America, Petitioner . Case 10-RC- 13412 16 December 1987 DECISION ON REVIEW AND ORDER BY CHAIRMAN DOTSON AND MEMBERS BABSON AND JOHANSEN On 16 June 1987 the Regional Director for Region 10 issued a Decision and Direction of Elec- tion in which he found, inter alia, that a collective- bargaining agreement between the Intervenor' and the Employer does not constitute a bar to the in- stant petition because the Intervenor is in a state of schism. In accordance with Section 102.67 of the Board's Rules and Regulations, the Intervenor filed a timely request for review of the Regional Direc- tor's decision. By order dated 22 July 1987, the Board granted the Intervenor's request for review.2 The election was conducted as scheduled on 23 and 24 July 1987, and the ballots were impounded pending the Board's decision on review. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the entire record in this case and makes the following findings. I. Local 232 of the United Cement, Lime and Gypsum and Allied Workers International Union (Cement Workers) and the Employer have been parties to a succession of collective-bargaining agreements covering certain employees of the Em- ployer since approximately 1947. From August to November 1983, officials of the Cement Workers held meetings with various locals throughout the country to discuss a proposed merger between the Cement Workers and the In- tervenor. In the January/February 1984 edition of The Voice, a Cement Workers' publication, the terms of the proposed merger were explained to members of the bargaining unit. Richard A. North- rip, who became the Cement Workers' president in January 1984, and who was editor of the publica- tion, supported the merger, as did Henry W. Bechtholdt, the Cement Workers' secretary-treasur- er. The Intervenor's International Executive Coun- cil, which governs the Intervenor between conven- tions, was comprised before the merger of the In- ' International Brotherhood of Boilermakers, Iron Shipbuilders, Black- smiths, Forgers and Helpers, AFL-CIO, CFL, and Local Lodge D-232. 2 In that same Order, the Board denied the Intervenor's request for oral argument. tervenor's international president, secretary-treasur- er, and eight vice presidents. The Intervenor's con- stitution provides that when a convention is assem- bled that body is the highest tribunal, and when no convention is in session the Executive Council is the highest authority. 3 The Cement Workers ratified the merger agree- ment at a special merger convention in March 1984; Intervenor's Executive Council ratified the agreement for the Intervenor. On 1 April 1984 the Intervenor and the Cement Workers entered into the agreement by which the Cement Workers became part of the Intervenor as the Cement Divi- sion. As a result of the merger, the Cement Work- ers local that represented the Employer's employ- ees was chartered as the Intervenor's Local Lodge D-232, effective 1 April 1984. Under the terms of the merger agreement, the Executive Council was to be expanded to include a new position of international vice president-at- large, to be filled by an individual from the Cement Division. In addition, district representatives of the Cement Workers were to become Cement Division international representatives/coordinators.4 The merger agreement provides in pertinent part as follows: The position of International Vice-President- at-Large created as a result of this Merger Agreement will be filled with the individual selected by the United Cement, Lime, Gypsum and Allied Workers International Union. Sub- sequent vacancies will be filled in accordance with the International Constitution. Merger agreement, article IV, section 5. The rele- vant section of the Intervenor's constitution pro- vides that delegates at the regular convention are to nominate and elect international officers. Consti- tution, article IV, section 4(a). In the premerger ar- ticle in The Voice, the Cement Workers were in- formed that initially the position of international vice president-at-large would be filled with an indi- vidual selected by the Cement Workers. Thereaf- ter, the international vice president-at-large was to be chosen in the same manner as other internation- al vice presidents; that is, by delegates to the inter- national convention, with the proviso that the indi- vidual be from the Cement Division. On merger, the Cement Workers selected Rich- ard Northrip to be international vice president-at- 3 Art. I, secs. 3-5 4 The international vice president-at-large was to be responsible for ad- ministering the division, assisted by a division director. The division di- rector was to be appointed by the international president , although initial selection was to be made by the Cement Workers. Merger agreement, art. XIX 287 NLRB No. 50 486 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD large: Charles Jones, the -Intervenor's president, ap- pointed him , and the International Executive Coun- cil confirmed the appointment . The eight interna- tional , vice presidents of the Cement Workers became international representatives/coordinators for the `Intervenor. Bechtholdt became director of' the Cement Division. The current collective -bargaining agreement be- tween the Employer and the Intervenor became ef- fective 1 October 1985 and by its terms expires 1 October 1988 . Through the instant petition, the Pe- titioner- seeks to represent a unit that is coextensive with the preexisting historical unit covered by the current collective -bargaining agreement. The Petitioner contends that a schism exists and an election should be directed in light of a dispute' concerning the correct interpretation of the merger agreement with respect to the procedure for selec- tion of the newly created position of international vice president-at-large. The Intervenor contends that because no ' intraunion dispute over basic- policy matters exists at the highest , level of the labor organization, no schism exists and the current collective-bargaining agreement constitutes a bar to an election. The first convention of the combined organiza- tion, the 27th consolidated convention , opened 11 August 1986. A Cement Division caucus was scheduled for the day before the beginning of the convention, 10 August 1986. Before the conven- tion, the Intervenor's Executive' Council passed a resolution proposing dissolution of the merger.' It is undisputed that both ' Northrip and Bechtholdt, op- posed the resolution , and that the delegates to the convention rejected it. There is conflicting testimony regarding what was to take place at the Cement Division caucus. Some witnesses testified that they understood that the meeting was held to select the international vice ' president-at-large, who would hold the posi- tion ` ,until termination of the merger agreement, in 1991, when the next convention would be held. Others believed that there would be simply a debate between the candidates at the meeting, and that all delegates would vote at the convention, al- though the candidates for international vice presi- dent-at-large were to be from the Cement Division. The record reveals that International President Jones sent a notice dated 30 May 1986 to delegates in which he stated that the purpose of the ,10 August Cement Division meeting was to discuss issues concerning the cement industry. Northrip in- formed Cement ' Division delegates in a letter issued 20 June 1986 that both he and Henry Bechtholdt, director of the Cement Division , were seeking the position of international vice president-at-large and that Northrip planned to raise the question of who would be the candidate at the caucus . Northrip fur- ther stated that he would -, not seek the position unless a majority of Cement Division delegates at the Cement Division meeting supported his candi- dacy . Northrip testified that he knew, however, that Bechtholdt would not withdraw his name from consideration even if Northrip were to obtain the support of a majority of Cement Division dele- gates. Jones issued an agenda on 30 July 1986 for the Cement Division meeting that provided for a discussion of the Executive Council resolution pro- posing -dissolution of the merger and for a debate between Northrip and Bechtholdt . Northrip testi- fied that he did not raise any questions regarding the election procedure prior to the consolidated convention. The record is not clear regarding the events of the 10 August meeting, but it does indi- cate that no election was held. At the convention, Bechtholdt, who ran on a ticket with, Jones, was elected by a rollcall vote of all delegates . The election tally shows , that if only Cement Division delegates had voted; Northrip would have won. Several witnesses testified that they heard no discussion either after the merger or at the 1986 convention that Cement Division ° dele- gates believed that the position of international vice president-at-large would be filled by an individual selected by the Cement Division. There was evi- dence that some , who participated in merger nego- tiations understood that the election of an interna- tional - vice president-at-large would be conducted in the same manner as in fact occurred, while others believed that the preconvention caucus would select :the individual who would hold the position until the next convention in 1991. Al- though the record is unclear with respect to the in- dividuals' various interpretations of the merger agreement, it is clear that the issue regarding the proper election procedure for selecting-the interna- tional vice president-at-large was not placed before the delegates:during the convention. According to Robert Simmons; a Cement Divi- sion international representative/coordinator, during the consolidated convention Northrip made a request to limit voting to Cement Division dele- gates; , however, Simmons testified that he did not know until after the convention how Northrip in- terpreted the merger agreement, and that he did not hear any preconvention discussion among Northrip supporters to indicate that they under- stood the election would proceed differently than it in fact did. According to Northrip, .during the elec- tion he took the floor and told the delegates that he would concede the election, but he also told them that he wanted the Cement Division to vote GEORGIA KAOLIN CO. to show the extent of Cement Division support for him. Other witnesses testified that they did not hear of any dispute during the convention regard- ing the election procedure, and the Petitioner con- ceded in its brief on review that "there was no ob- jection made at the time of the casting of bal- lots...." Following the convention, Northrip sent a tele- gram to Jones on 21 August 1986, in which he raised the question of whether his term of office had expired. Northrip stated that he believed that the merger agreement was understood to guarantee his tenure as international vice president-at-large until the 28th consolidated convention in 1991. With some inconsistency, he also stated that there was a question regarding who was entitled to vote on the position during the period before the agree- ment expired in 1991. Northrip was not an early organizer of the Peti- tioner. Northrip began to hear objections to the merger from Cement Division delegates sometime after the convention, and some requested that he start another labor organization because they were dissatisfied with the manner in which the election was conducted. Northrip, however, did not do so at that time . Thereafter, in October 1986, four of the international representatives/coordinators were discharged. The reason given for their discharge was a necessity to reduce costs. The four who lost their jobs, however, opposed Jones and supported Northrip's candidacy at the convention; three other international representatives/coordinators, all of whom supported Jones, remained employed.5 Northrip did not join the movement to form the Petitioner until he learned of the discharge of the four international representatives/coordinators who had supported his candidacy. In late September 1986 the Petitioner was formed. One of the organizers, Thomas Cooper, formerly was an international representative/- coordinator who had vied unsuccessfully for elec- tion as Intervenor's secretary-treasurer at the con- solidated convention. In November 1986 several meetings of members of Local D-232 were held to discuss disaffiliation. A vote was taken among bar- gaining unit members, and a majority of those voting voted in favor of disaffiliation. Approxi- mately 60 percent of the Local's members revoked their authorizations to checkoff dues for the Inter- venor and designated Petitioner's Local No. 232 as their representative. 3 One other international representative/coordinator who supported Northrip retired following the convention. The record does not reveal whether that retirement was planned prior to the events of the conven- tion, but there is no suggestion in the record that his retirement was other than voluntary. H. 487 The question presented is whether the collective- bargaining agreement between the Intervenor and the Employer constitutes a bar to an election. We disagree with the Regional Director's conclusion that a schism occurred, and thus we find a contract bar presents For a contract bar to be waived , a schism must exist that undermines the industrial stability usually advanced by a collective-bargaining agreement. A schism exists when there is a basic intraunion con- flict over policy "at the highest level of an interna- tional union." Hershey Chocolate Corp., 121 NLRB 901, 907-908 (1958). As Hershey explains, the con- flict "may include any realignment affecting an international union or federation of unions , result- ing from a policy conflict" that undermines the bargaining relationship . 121 NLRB at 908. Once a basic intraunion conflict occurs, the members of the bargaining unit must take disaffiliation action for reasons related to the conflict at an open meet- ing. The meeting must take place after due notice to unit members and within a reasonable time period after the conflict occurred . 121 NLRB at 908-909 & fn. 14. Here, no conflict has occurred at the highest level of the International. Neither the assembled body of delegates at the consolidated convention nor the membership of the International's Execu- tive Council , the highest levels of the International under its constitution, manifested a conflict regard- ing the merger or the terms of the merger agree- ment. The leadership of the Cement Workers, in- cluding Northrip, approved the merger and sup- ported it during discussions with locals throughout the country both before and after the 1984 special merger convention. Northrip knew that Bechtholdt planned to run for international vice president-at- large whether or not the Cement Division caucus supported him, yet Northrip did not register a pro- test to alert the leadership that he expected the choice of the Cement Division delegates to be con- trolling. Although Robert Simmons, as noted above, testified that during the consolidated con- vention Northrip requested that voting for the international vice president-at-large position be lim- ited to Cement Division delegates, there is no evi- dence to show that this request was viewed as rais- ing a question regarding the proper interpretation of the merger agreement or regarding the selection process, and no objections were raised at the con- vention on those grounds. Indeed, Simmons further The Regional Director found that the Intervenor's Local D-232 is not defunct. No request for review was filed with respect to that finding, and thus we do not consider it here. 488 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD testified that he was unaware until after the con- vention that Northrip interpreted the merger agree- ment as he now claims No current member of 'the Intervenor's Execu- tive Council has attempted to form a rival labor or- ganization. Members of Local D-232 did not raise their -contentions during the consolidated conven- tion and did not express dissatisfaction with the election procedure until after the convention. Thus, the assembled delegates, the Intervenor's highest governing body at the time of the convention, ap- parently did not know of a conflict over the inter- pretation of the merger agreement or the election results. Thus unaware, they could not be divided over a basic policy matter. Northrip did not join the disaffiliation movement until well after the con- vention, following the discharge of the internation- al representatives/coordinators, when he was no longer an officer of the Intervenor. Disaffection among members of a local with action taken by an international does not constitute schism. Standard Brands, 214 NLRB 72 (1974); Swift & Co., 145 NLRB 756 (1963); see Yates Indus- tries, 264 NLRB 1237, 1249 (1982). In Standard Brands, a local's opposition to its international's de- cision to change affiliations from the AFL-CIO and to the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica did not constitute a schism when the interna- tional at a convention approved the merger, the AFL-CIO did not create a rival organization to the international after the merger convention, and no leadership group of the international attempted to keep the international within the AFL-CIO. In Swift, the Board found no schism when a local dis- agreed with the international 's negotiations and dis- affiliated. Here, disaffected members of the Local were dissatisfied with the outcome of the last con- solidated convention and chose to disaffiliate, al- though the record is unclear whether it was the election procedure or the discharge of the four international representatives/coordinators that pre- cipitated the disaffiliation. Such dissatisfaction with the actions of the International does not, under Hershey, undermine the stability of the existing bar- gaining relationship. The action of the Local's members, as in Swift and Standard Brands, does not represent a realign- ment that leads to the conclusion that a schism exists. The dissent asserts that there is a basic in- traunion policy dispute regarding the interpretation and application of the merger agreement. Contrary to our dissenting colleague, we conclude that there was no schism when the loss of an election and ter- mination of four international representatives/- coordinators resulted in some individuals forming their own labor organization. The record does not establish that Northrip's actions during the conven- tion served to raise the(. election procedure before the delegates, and the record does not show that there was any division among the delegates con- cerning the interpretation of,the merger agreement or the election process during the convention. The record also does not show that there is a split among the members of Intervenor's Executive Council over the interpretation , of the merger agreement or the election process. Hence, the con- flict does, not constitute a schism.7 We conclude that there is no basic intraunion policy dispute at the highest level within' the mean- ing of Hershey, and, therefore, we do not decide whether the other Hershey prerequisites to direc- tion of an election are present . Thus, the existing collective-bargaining agreement bars an election. Accordingly, the Regional Director's decision is reversed, the direction of election is vacated, and the petition is dismissed. ORDER The petition in Case 10-RC-13412 is dismissed. MEMBER JOHANSEN, dissenting. I do not agree with my colleagues' analysis or disposition of this case. I would find that a'schism exists within the meaning of Hershey Chocolate Corp., 121 NLRB 901 (1958); Wade Mfg. Co., 100 NLRB 1135 (1952); and Erwin Mills, 101 NLRB 316 (1952). Thus, in the interest of promoting in- dustrial stability as well as the employees' interest in selecting their own representative, I would direct an election. For a schism to exist under Hershey, there must be a basic intraunion conflict over policy at the highest level of an international union which re- sults in a disruption of existing intraunion relation- ships. In addition to conflict at the highest level, a schism requires, action by employees in the unit arising out of 'the basic conflict which creates such confusion in the bargaining relationship that stabili- ty can be restored only by an election. The conflict at issue here is the interpretation and application of Our dissenting colleague asserts that the fact the dispute between the Intervenor and the Petitioner has generated 82 representation petitions nationally "strongly" supports the existence of a basic mtraumon conflict within the meaning of Hershey We do not agree That a splinter group led by individuals who constituted or supported a losing slate of candi- dates may be filing representation petitions simply is irrelevant to our de- termination of whether a schism exists under Hershey A finding that a schism exists is not to be undertaken lightly , clear evi- dence must be required before the Board interferes with an existing con- tractual relationship As stated in Hershey, "if the schism doctrine could be invoked in the absence of a basic intraunion conflict, it could be uti- lized to facilitate a raid or to permit a dissident group to repudiate the bargain made by the existing representative , thus providing the means for circumventing the normal contract bar rules " 121 NLRB at 907 GEORGIA KAOLIN CO 489 the merger agreement between the International Cement, Lime, Gypsum and Allied Workers Inter- natinal Union (Cement Workers) and the Interna- tional Brotherhood of Boilermakers , Iron Ship- builders, Blacksmiths, Forgers and Helpers, AFL- CIO, CFL (Intervenor), specifically as it applies to the procedure for selecting the international vice president-at-large (IVPAL), which is a newly cre- ated position under the merger agreement. In March 1984, the Cement Workers and the In- tervenor entered into a merger agreement, which was then ratified by the Cement Workers. The merger agreement which was to terminate at the convening of the 28th consolidated convention in 1991, provided that the Cement Workers would continue to exist as a separate division of the Inter- venor, and that the Intervenor's constitution would govern the merged organization . Further, the merger agreement created the IVPAL position. The IVPAL and the Cement Division director were to administer the Cement Division. The IVPAL position is critical because that individual recommends, and the Intervenor's international president appoints, the divisional representatives who assist in the administration of the Cement Di- vision. Immediately upon merger , the Cement Workers selected Richard Northrip as IVPAL, and the In- tervenor's international president appointed Henry Bechtoldt as the Cement Division director . Simul- taneously the Cement Workers' international vice presidents became international representatives/- coordinators for the Intervenor. Before the opening of the 27th consolidated con- vention on 11 August 1986, the Cement Division caucus was scheduled to meet . Northrip, then IVPAL, by letter, requested 2 days for the caucus from International President Charles Jones. Jones did not respond to the letter, but rather sent out an agenda and appointed International Secretary- Treasurer Emeritus Charles Moran to chair the Cement Division meeting. The caucus was sched- uled for 1 day only-10 August , the day before the 27th consolidated convention . The agenda included a debate between the two candidates for IVPAL, Northrip and Bechtoldt. When the Cement Division caucus commenced on 10 August, Jones immediately presented a pro- posal to tear up the merger agreement, and in return he would tear up the proposed resolution to dissolve the merger which had previously been passed by the Executive Council. The issue was put to a vote of the division delegates, it failed, and the Executive Council members left. The meeting which was chaired by Moran was then adjourned and the debate and election for the IVPAL was never held. On 11 August the 27th consolidated convention began . Bechtoldt was elected as IVPAL on a ticket with the Intervenor's international president , Jones, based on the votes of all delegates. There is a dis- agreement whether all delegates as contended by the Intervenor or the Cement Division delegates only were to vote on the IVPAL position . If only Cement Workers had voted , Northrip would have been elected, but because all delegates voted Bech- toldt won the election . The premerger Boilermak- ers outnumbered the Cement Workers 4 to 1. At the convention , Northrip stated he took the floor and requested that if it were going to be handled the way it was, that a tally of the Cement Division delegates' votes be kept . Robert Simmons, an inter- national representative/coordinator of the Cement Division stated that during the vote for the IVPAL Northrip requested that only Cement Division del- egates vote. Following the convention, Northrip formally protested the voting procedure by tele- gram dated 20 August. On 17 November the Inter- venor rejected his contentions. There were other versions of how the election of the IVPAL was to be conducted. The IVPAL position, which is newly created pursuant to the merger agreement, is addressed in article IV, sections 1 and 5, respectively, which provide as follows: The International Officers shall consist of an International President; International Secre- tary-Treasurer; nine (9) International Vice- Presidents, two (2) of whom shall come from Canada, and one (1) International Vice-Presi- dent-at-Large, who shall come from one of the affiliated lodges of the Cement, Lime, Gypsum and Allied Workers Division. The Position of International Vice-President- at-Large created as a result of this Merger Agreement will be filled with the individual selected by the United Cement, Lime, Gypsum and Allied Workers International Union. Sub- sequent vacancies will be filled in accordance with the International Constitution. According to the chief negotiators of the merger agreement, Thomas E. Cooper, who was the Inter- venor's international vice president of the Great Lakes area until August 1986, and Northrip, the IVPAL, was clearly to be elected by the Cement Division delegates until 28th consolidated conven- tion, which coincided with the expiration of the merger agreement. 490 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Following the 27th consolidated convention, Northrip began to hear objections to the merger and requests that he start another labor organiza- tion due to dissatisfaction with the manner in which the election was conducted . In October four international representatives/coordinators who sup- ported Northrip's candidacy were terminated while three who supported Jones remained employed. When the Cement Division delegates and Interve- nor Local D-232 realized how the merger agree- ment was being construed, it led to the creation of the Independent Workers of North America (Peti- tioner here) and the decision of Intervenor Local D-232 to disaffiliate . At the time of the hearing, the dispute between the Intervenor and the Petitioner had generated 82 representation petitions national- ly. In Hershey, 121 NLRB 901, 907-908 (1958), the Board said that a basic intraunion conflict could be: . . . any conflict over policy at the highest level of an international union . . . [including] a split within an international union in which some of its officials transferred their affiliation to an existing rival union or established a new organization claiming jurisdiction . However . . . it may include any realignment affecting an international union . . . resulting from a policy conflict, which has substantially the same effect on the stability of bargaining rela- tionship. Clearly the conflict over the election procedure employed for the selection of the IVPAL and the inherent realignment at the International level of the Intervenor as evidenced here is exactly what Hershey envisioned as a "basic intraunion conflict over policy at the highest level." My colleagues' belief that there was no dissatis- faction with the merger agreement , stating that the leadership , of the Cement Workers, including Northrip, approved the merger and supported it during discussions with locals throughout the coun- try, is misplaced . The policy conflict is not with the language of the agreement per se , but rather with the interpretation and alleged misapplication of the agreement to the election procedure for the IVPAL. The method of conducting that election is critical to the alignment of control over the Cement Division of the Intervenor because of the IVPAL's roles on the Intervenor's Executive Council, in administering the Cement Division, and in selecting the divisional representatives who assist in the administration of the Cement Division. Fol- lowing the election, the layoff of the four most senior international representatives/coordinators is part of the same basic policy dispute and is further evidence of the resultant realignment at the interna- tional level. I conclude that a basic intraunion conflict at the highest level within the meaning of Hershey exists (a conclusion strongly supported by the fact that 82 representation petitions have already been filed). Secondly, this basic intraunion conflict resulted in the formulation of the Petitioner and the disaffilia- tion of the Intervenor Local D-232. Notices of the disaffiliation meetings, which were held at times that employees from all shifts could attend, were posted throughout the Employer's facility 7 days before the meetings, and clearly indicated the sub- ject of the meetings. On 18 November the disaffili- ation vote was taken and 113 members favored dis- affiliation, 10 opposed, and there was 1 void ballot. Based on the circumstances of this case, including Northrip's attempted resolution of the dispute for- mally on 20 August and the Intervenor's delay in responding until 17 November, the employees ac- tions to disaffiliate in November were taken within a reasonable period of time. Accordingly, I would adopt the Regional Director's Decision and Direc- tion of Election which finds that a schism exists warranting an election, notwithstanding the exist- ence of a contract.