The Kent Corp.

KENT CORP 735 The Kent Corporation and The United Steel Work- ers of America, AFL-CIO-CLC, Petitioner. Case 10-RC-12787 10 October 1984 DECISION ON REVIEW AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND DENNIS On 22 August 1983 the Regional Director for Region 10 of the National Labor Relations Board issued a Decision and Direction of Election in the above-entitled proceeding in which he found that the Party in Interest, Employees Association of Kent Supermatic (the Association) was a defunct labor organization and that the contract between the Association and the Employer was not a bar to the Petitioner's petition for a representation elec- tion. Thereafter, in accordance with Section 102.67 of the Board's Rules and Regulations, the Employ- er timely filed a request for review of the Regional Director's decision alleging that the Regional Di- rector failed to apply the appropriate test for deter- mining the defunctness of a labor organization. The Employer further contends that the Association is not defunct within the meaning of Hershey Choco- late Corp., 121 NLRB 901 (1958), and that the cur- rent collective-bargaining agreement between it and the Association should serve as a bar to the in- stant election petition. The Petitioner filed a brief on review in which it argues that the Board should affirm the Regional Director's decision finding that the Association is a defunct labor organization and process the instant petition. By telegraphic order dated 3 October 1983 the Employer's request for review was granted. 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 with respect to the issue under review, in- cluding the Employer's request for review and the opposing brief, and makes the following findings. In late 1979 employees of the Employer in a non-Board election selected the Association as their collective-bargaining representative.' Thereafter, the negotiating committee of the Association met with the Employer and a contract was ratified by the employees effective until 31 December 1982. In November 1982 the negotiating committee met again with the Employer and negotiated a new contract to be effective until 31 December 1985. ' Prior to this election, the International Brotherhood of Boilermakers, Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO had been cer- tified as the exclusive collective-bargaining representative of the Employ- er's production and maintenance employees This contract was signed by committee members but never ratified by the employees. Sam Mitchell became president of the Associa- tion and James Goodwin became its vice president in 1979. 2 Since that time there have been no elec- tions for officers. Since the 1979 contract ratifica- tion meeting, there have been no Association mem- bership meetings, although it appears that at one point at least one employee did approach an officer about having an Association meeting. At no time since its existence has the Association maintained a treasury or a bank account. There are no books or records of any kind in existence. There are no members of the Association, no membership appli- cations, and no initiation fees; no dues have been collected. Sometime in May 1983 Association President Mitchell retired and no replacement was obtained. Goodwin, the vice president, remains as the sole Association officer. 3 Goodwin testified that he has only limited knowledge of the collective-bargaining agreement and that he does not know whether the Employer paid the agreed-upon wage scale or whether the agreement contained a grievance pro- cedure. Since 1979 Goodwin has processed only one employee grievance concerning seniority; how- ever, the record establishes that at least one em- ployee has not been paid the collectively bargained wage rate. The issue presented is whether the Association is a defunct labor organization and its collective-bar- gaining agreement with the Employer therefore not a bar to the Petitioner's election petition. We dis- agree with the Regional Director's resolution of this issue and find that there is a contract bar to the petition. The Regional Director set forth the proper standard for determining defunctness as stated in Hershey Chocolate Corp., supra at 911: [A] representative is defunct, and its contract is not a bar, if it is unable or unwilling to rep- resent the employees. However, mere tempo- rary inability to function does not constitute defunctness; nor is the loss of all members in the unit the equivalent of defunctness if the representative otherwise continues in existence and is willing and able to represent the em- ployees. He failed, however, to apply this standard. Rather, he relied primarily on two cases, International Har- vester Co., 111 NLRB 276 (1955), and Arthur C. 2 There is no evidence concerning how these officers were selected for their respective positions 3 Although not an officer, employee Robert Bishop remains a member of the Association's negotiating committee 272 NLRB No. 115 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Harvey Co 110 NLRB 338 (1954) for the proposi tion that a labor organization is defunct when the members have voted to disband and after the vote there have been no members no officers no dues-, collected and no organizational activities Thus the Regional Director found the Association was defunct because there are no Association members no membership applications no initiation fees no dues no treasury no bank account no books or records meetings or recent (if any) election of of ficers and no information available to employees regarding 1982 contract negotiations or attempts to enforce the collective bargaining agreement The Regional Director s reliance on International Harvester and Arthur C Harvey is misplaced Those cases were decided before the Hershey standard for determining defunctness was established More over they are factually distinguishable in that they involved either employee votes to disband or formal withdrawal or suspension of the employees from their respective labor organizations While the separate internal factors relied on by the Regional Director may be considered in determining wheth er a labor organization is able and willing to repre sent employees (e g no members or dues) those factors standing alone are not sufficient to warrant a conclusion that an organization is defunct 4 Re gardless of the relative inactivity of a labor orgam zation the critical question is its willingness and ability to represent employees 5 Applying the test of Hershey and its progeny to the case before us it is clear that the Association is not defunct Here the vice president of the Asso ciation and a member of the negotiating committee testified to their willingness to continue to repre sent the employees to abide by the Association s bylaws and to hold meetings collect dues handle grievances and the like Further there is no evi dence that the Association was called on and failed to act on unit employees behalf In these circum stances we cannot conclude that the Association is defunct within the meaning of Hershey supra We therefore find that the 1982-1985 collective bar gaining agreement between the Employer and the Association constitutes a contract bar necessitating the dismissal of the Petitioner s election petition ORDER The petition is dismissed See e g News Press Publishing Co 145 NLRB 803 (1964) 5 Pioneer Inn Associates 228 NLRB 1263 (1977) Road Materials Inc 193 NLRB 990 (1971)