American Factors, Ltd.

National Labor Relations Board - Board Decisions

Apr 17, 1953

104 N.L.R.B. 199 (N.L.R.B. 1953)

AMERICAN FACTORS, LTD. ( HILO BRANCH) 199
(A) All employees of the Texas Company's Tampa, Florida,
Sales Terminal, excluding office clerical employees , salesmen,
professional employees , guards, and supervisors as defined in
the Act.
(B) All office clerical employees of the Texas Company's
Tampa, Florida, Sales Terminal, including senior clerkMcAtee
and the dispatcher , but excluding the zone manager ' s steno-
clerk, all other employees , guards, and supervisors as defined
in the Act.
[Text of Direction of Elections omitted from publication.]
AMERICAN FACTORS, LTD. (HILO BRANCH), AMERICAN
FACTORS, LTD. (KONA BRANCH), HILO TRANSPORTA-
TION & TERMINAL CO., LTD., HONOLULU IRON WORKS
d/b/a HILO IRON WORKS and FEDERATION OF HAWAII
WORKERS ( IND.), Petitioner . Cases Nos . 37-RC-163,37-RC-
164, 37-RC-165, and 37-RC-166. April 17, 1953
DECISION AND DIRECTION OF ELECTIONS
Upon petitions duly filed under Section 9 (c) of the National
Labor Relations Act, a consolidated hearing was held before
A. L. Wills, hearing officer. The hearing officer's rulings
made at the hearing are free from prejudicial error and are
hereby affirmed.'
Pursuant to the provisions of Section 3 (b) of the Act, the
Board has delegated its powers in connection with this case
to a three-member panel [Members Houston, Styles, and
Peterson].
Upon the entire record in this case, the Board finds:
1. The Employers are engaged in commerce within the mean-
ing of the Act.
2. The labor organizations involved claim to represent cer-
tain employees of the Employers.
3. Questions affecting commerce exist concerningthe repre-
sentation of employees of the Employers within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
The Intervenor urges that the petitions herein are barred by
its contracts with the Employers. The Employers took no
position on this issue.
When the petition in Case No. 37-RC-166 was filed on
January 9, 1953, the proposed unit was covered by a contract
between the Intervenor and Hilo Iron Works having an ex-
piration date of January 27, 1953, and a 60-day automatic
t The Intervenor , Miscellaneous Manufacturing and Service Workers , International Long-
shoremen 's and Warehousemen 's Union , Local 155, requested , prior to the hearing , that the
hearing officer disqualify himself because of alleged bias and, at the hearing , sought a con-
tinuance on the ground that this request was still pending . We find that the hearing officer
properly refused to disqualify himself or to grant the continuance . See Angelus Chevrolet
Co., 88 NLRB 929. Moreover , we reject theIntervenor 's contention , advanced in its brief, that
the hearing officer 's rulings at the hearing reflect bias or hostility toward the Intervenor.
104 NLRB No. 22.
200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
renewal clause. However, on November 17, 1952, before the
Mill-B date, the Intervenor notified Hilo Iron Works of its
desire to change the contract.2 Although the Intervenor sub-
mitted a proposed draft of a new contract, Hilo Iron Works
discontinued negotiations pending Board resolution of the
questions concerning representation which had been raised, and
no new contract has been executed. The Intervenor argues in
its brief that its notice was ineffective to prevent automatic
renewal of the contract because no substantial changes were
proposed and efforts to negotiate have been abandoned. We
disagree. In accord with settled policy, we find on these facts
that the notice alone forestalled automatic renewal of the
contract, and that the petition was, therefore, timely filed
with respect to the contract termination date.'
The Intervenor's contracts with American Factors, Ltd.,
Hilo Branch and Kona Branch, herein referred to as Hilo and
Kona respectively, both have termination dates of June 30, 1953,
and its contract with Hilo Transportation & Terminal Co.,
Ltd., herein called Hilo Transportation, has a termination date
of December 31, 1953. With respect to the contract-bar con-
tentions in these three cases, the Petitioner avers that a schism
has occurred and that the Intervenor has been dissolved. The
Intervenor disputes the occurrence of a schism and the legality
of the attempted dissolution.
The Mill-B dates in the Hilo and Kona contracts will become
operative in less than 30 days. We find, therefore, that no
contract bars exist in Cases Nos. 37-RC-163 and 37-RC-164.
There remains the question whether the Intervenor's contract
with Hilo Transportation is a bar to the petition in Case No.
37-RC-165. The pertinent facts are as follows:
The Intervenor, comprising employees in separate units at
the plants of Hilo, Kona, Hilo Transportation, Hilo Iron Works,
and Flintkote Company--Canec Division, herein called Flint-
kote,' through its executive board, scheduled a special
meeting for December 23, 1952, for the purpose of deciding
whether or not to disaffiliate from International Longshore-
men's and Warehousemen's Union, herein called ILWU.5 About
5 days before the meeting , unit heads were instructed by the
Intervenor's business agent to notify the members of this
meeting.' Testimony of various individuals delegated to carry
out these instructions and of the business agent himself shows
that notice was given orally to as many members as possible
2 This notice was sent by the Intervenor 's business agent who, together with the members of
the Intervenor 's negotiating committees in the respective plants . had negotiated and signed the
contracts with the Employers involved herein.
9Shipowners ' Association of the Pacific Coast and its members Companies , 100 NLRB 1250.
4Flintkote has a contract with the Intervenor but is not involved in the instant proceedings.
6 As background for this action, the record shows that dissatisfaction with ILWU leadership
existed . On August 8, 195Z a special meeting was held for the purpose of amending the Inter-
venor 's constitution by deleting therefrom the prohibition against dissolution "as long as there
are 10 members in good standing." The minutes of the meeting show that the amendment
carried unanimously.
6 The members at the Kona plant were merely informed that the meeting was to take place
as they never attended general membership meetings because of the distance of the meeting
place from this plant.
AMERICAN FACTORS, LTD. (HILO BRANCH) 201
in each unit as well as by posting in the usual places.? At the
December 23 meeting, attended by an estimated 3008 of the
total membership of approximately 350-375, after the grounds
for dissatisfaction with ILWU were discussed, motions to disaf-
filiate from ILWU, to dissolve the Intervenor, and to establish
the Petitioner and transfer funds to it were carried unanimously
by standing vote, and it was decided to retain temporarily the
same officials in the new union.9
ILWU notified Hilo Iron Works that it had suspended former
officials and executive board members of the Intervenor pending
trial, and that it had designated official representatives of the
Intervenor for the purpose of administering its contract with
Hilo Iron, Works. There is nothing in the record, however, to
indicate that any such notice was sent to Hilo Transportation,
or any notice that the Intervenor was ready and able to ad-
minister its contract with Hilo Transportation.
Subsequent to the disaffiliation meeting, it appears that the
Petitioner informed the companies with which the Intervenor
had contracts of the action taken, and requested recognition,
which the Employers involved herein refused to grant. On
January 9, 1952, the Petitioner filed the petitions herein.
As the Intervenor executed and administered the contract
covering the Hilo Transportation unit and was the bargaining
representative of the employees in that unit, as the member-
ship of the Intervenor in that unit participated in the disaf-
filiation action, and as it does not appear that since the dis-
affiliation the Intervenor has been ready and able to administer
the contract, we conclude that confusion exists concerning the
continued functioning of the Intervenor as bargaining repre-
sentative of employees in the unit covered by its contract with
Hilo Transportation. Accordingly, without deciding whether the
Intervenor is defunct, we find that a schism exists in the Inter-
venor, and therefore that its contract with Hilo Transportation
is not a bar.lo
7 While the posted notice at the Hilo plant specified only that the meeting was "very impor-
tant ." and no notice was posted at the Hilo Transportation plant, these units have but 39 and 30
employees , respectively, and oral notification was given to all individual members who could
be reached.
$ An effort was made to have the members present at the meeting sign the attendance roll in
accord with the usual procedure, but it was found impracticable to do so because of the small
size of the meeting place and the unusually large number in attendance.
9The members in the Kona unit subsequently met and concurred in the action taken at the
December 23 meeting.
The Intervenor argues that as it is possible that the disaffiliation vote was carried by mem-
bers not employees of the Employers involved herein, no schism has been shown. We find no
merit in this argument because the December 23 meeting was a general membership meeting
and, except for the numbers in the unit at the Kona plant who, as indicated above , concurred
separately , the decisions made thereat were binding upon the entire membership.
IoCf. Bryant Finishing Co., Inc., et al., 101 NLRB 42$ Erwin Mills, Inc., (Neuse Plant), 100
NLRB 267; Radionic Products Division, Radionic Controls. Inc., 91 NLRB 595; Boston Machine
Works Company, 89 NLRB 59. The situations in Allied Container Corporation, 98 NLRB 580,
and Bendix Products Division, 98 NLRB 1180, relied upon by the Intervenor in its brief, are
clearly distinguishable from the facts herein.
202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The Employers and the Petitioner were in agreement as
to the appropriate units, while the Intervenor took no position."
Accordingly, we find that the following groups of employees
constitute units appropriate for collective bargaining within
the meaning of Section 9 (b) of the Act:
(1) All employees of Hilo Iron Works at its Hilo, Hawaii, plant,
excluding office clerical employees, professional employees,
guards, working foremen, and all other supervisors as defined
in the Act.
(2) All employees of American Factors, Ltd. (Hilo Branch)
employed in its warehouse, lumberyard, carpenter shop, and
lumber mill at Hilo, Hawaii, including truckdrivers and Ross
carrier operators, but excluding office clerical employees,
professional employees, guards, and supervisors as defined in
the Act.
(3) All employees of American Factors, Ltd. (Kona Branch)
employed in its warehouse, lumberyard, carpenter shop, and
coffee mill at Kona, Kailua District, Hawaii, excluding office
clerical employees, professional employees, guards, and super-
visors as defined in the Act.
(4) All employees in the trucking department of Hilo Trans-
portation & Terminal Co., Ltd., at Hilo, Hawaii, excluding
office clerical employees, professional employees, guards, and
supervisors as defined in the Act.
[Text of Direction of Elections omitted from publication.]
11 At the hearing , the Petitioner was permitted to amend its unit request in Case No. 37-RC-
166 to exclude two working foremen as supervisors . As these individuals appear to have the
power to discharge and discipline employees , we shall exclude them.
It appears that the proposed units are the same as those covered in the Intervenor's con-
tracts with the Employers.
UNITED STATES PIPE AND FOUNDRY COMPANY and IN-
TERNATIONAL MOLDERS & FOUNDRY WORKERS UNION
bF NORTH AMERICA, AFL, Petitioner. Case No. 10-RC-
682. April 17, 1953
SUPPLEMENTAL DECISION
On March 13, 1946, United Steelworkers of America, CIO,
hereinafter referred to as the Steelworkers, was certified' as
representative for a unit of all production and maintenance
employees at the Employer's Chattanooga, Tennessee, plant,
including pattern-shop helpers, pattern storage men, laborers,
and carpenters who work under the supervision of the pattern-
shop foreman. International Molders and Foundry Workers,
hereinafter referred to as the Molders, was certified as repre-
t After an election held pursuant to the Board's Decision and Direction of Election in Case
No. 10-RC-1593, 65 NLRB 979. It was again certified as representative for the same unit
after a consent election in 1947, in Case No. 10-RC- 2530.
104 NLRB No. 13.