Barton Distilling Co.

National Labor Relations Board - Board Decisions

Jul 23, 1953

106 N.L.R.B. 361 (N.L.R.B. 1953)

BARTON DISTILLING COMPANY 361
within 5 days after the election and filed objections without the
advice of counsel after the 5-day period had expired, and that,
had his objections been timely filed, they would have been suffi-
cient to cause the election to be set aside. Local 182 contends
that for these reasons its objections shouldnotbe overruled as
untimely.
Section 102.61 of the Board's Rules and Regulations provides
that objections to an election must be filed with the Regional Di-
rection within 5 days after the tally of ballots has been furnished
the parties. The Rules and Regulations of the Board, having been
duly published in the Federal Register, are binding upon all par-
ties to Board proceedings, regardless of actual notice.3 Noade-
quate reason has been shown for waiving in this case the time
limit on filing objections to elections. As there is no dispute that
the objections of Local 182 were filed more than 5 days after it
was furnished with a tally of ballots, we find that such objections
were untimely,4 and we will deny the instant motion, insofar as it
seeks to have the Board consider such objections on their merits.
[The Board denied the motion. ]
3 Federal Register Act, 49 Stat 503, 44 USC § 301 et seq. at § 307.
4See William J. Dunn, d/b/a Dunn Motor Company, 100 NLRB 822.
BARTON DISTILLING COMPANY, and BARTON WAREHOUSE
AND DISTILLING CORPORATIONland DISTILLERY, REC-
TIFYING & WINE WORKERS' INTERNATIONAL UNION OF
AMERICA, AFL, Petitioner . Case No . 9-RC-1958. July 23,
1953
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before William G.
Wilkerson, 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 Peter-
son].
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the meaning
of the Act.
2. The labor organizations involved claim to represent
certain employees of the Employer.
3. No question affecting commerce exists concerning the
representation of employees of the Employer within the meaning
IThe name of the Employer appears as amended at the hearing.
106 NLRB No. 65.
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Section 9 (c) (1) and Section 2 (6) and (7) of the Act, for the
following reasons:
The International Union of United Brewery, Flour, Cereal,
Soft Drink and Distillery Workers of America, CIO, herein
called Brewery Workers, CIO, its Local No. 41, herein called
CIO Local, and the Employer are parties to a collective-
bargaining contract covering the employees in the unit sought
herein. This contract was executed April 13, 1953, to be retro-
active to January 15, 1953, and to extend until January 15,
1954. The Brewery Workers, CIO, and the Employer contend
that this contract bars an election at this time. The Petitioner,
Distillery, Rectifying & Wine Workers' International Union of
America, AFL, herein called Distillery Workers, AFL, asserts
that a schism has occurred, preventing the contract from
barring this proceeding.
Following some dissension in the CIO Local , anda reduction
in wages of 1 cent an hour under the escalator clause of the
contract, 76 dissident employees attended an informal meeting
on May 15, 1953, towhichMcKiernan, international representa-
tive of the Distillery Workers, AFL, was invited.2 They dis-
cussed with McKiernan the matter of changing affiliation from
the CIO to the AFL, and signed a document stating they desired
representation by the Distillery Workers, AFL. On May 21, a
similar informal meeting was held, with 95 employees present.
McKiernan, who was again invited to attend, presided. He
discussed with the employees the proposed change in affiliation,
and answered questions regarding the current contract, the AFL
wages at other distilleries, and the type of contract the AFL
could negotiate . He told them the AFL "could get the same
agreement only better," and expressed the belief that the AFL
could negotiate a wage increase for them.
Neither of these two meetings was called by the CIO Local,
and both were admittedly AFL organizational meetings.
However, the CIO Local did call a regular monthly meeting
on May 25. The meeting notices, which were posted, announced
that CIO guest speakers would be present and urged all mem-
bers to attend.' The meeting was attended by 137 of the 150-160
members in the bargaining unit. The CIO Local's president,
Donahue, opened the meeting, introduced one of the officials
from the Brewery Workers, CIO, and stated that this official
would preside. Shortly thereafter, employee Jackson made a
motion4 to invite the AFL representatives into the meeting and
to allow them to speak, but the chairman ruled the motion out
of order. Jackson then asked for, and obtained, a standing vote
2McKiernan was invited by employee Jackson, whose husband was an AFL steward at
another distillery.
SAlthough the notices made no mention of any disaffiliation, it is evident that the Brewery
Workers, CIO, the CIO Local, and its officers and members were aware of the disaffiliation
activity. The meeting was held in the armory, which was large enough to accommodate a
much larger attendance than the 30 or so members who usually attended meetings.
4Jackson admitted that the motion had been typed out by Distillery Workers, AFL's, repre-
sentative, McKiernan, in preparation for the meeting.
BARTON DISTILLING COMPANY 363
of the membership. The chairman refused to recognize the
favorable vote, and all except about 14 members and the Local's
officers walked out of the meeting. When the dissenters refused
to return unless the motion was allowed , the CIO officials left. 5
The meeting then reconvened, with employee Jackson pre-
siding.6 McKiernan and the other AFL officials were invited to
attend, and they talked to the group. While McKiernan had the
floor, he proposed the following motions, which were duly made
and seconded, and approved by virtually a unanimous' vote: (1)
To disaffiliate and to dissolve the Local; (2) to seek a charter
from the Distillery Workers, AFL; (3) to authorize the AFL to
negotiate with the Employer for them; (4) to impound the Local's
funds in the bank;' and (5) to notify the Employer and this Board
of their actions.
In the meantime, on May 22, the Petitioner filed the petition
herein. On June 1, Fessenden, regional director for the Brewery
Workers, CIO, acknowledged receipt of a copy of the petition
and notified the Board's Regional Director that the Brewery
Workers, CIO, had withdrawn the Local's charter and was
disclaiming any interest in the proceeding . However, on June 9,
2 days before the hearing herein, the general counsel for the
Brewery Workers, CIO, notified the field examiner that the
June 1 disclaimer of interest was withdrawn "because it had
been based upon erroneous information." On the following day,
CIO representatives went to the Employer's plant and secured
16 authorization cards.9
No notice of the disclaimer and revocation of charter was
given to either the CIO Local's officers or the Employer. The
Local still has its same officers and, according to its presi-
dent, is still in existence until they are notified officially that
the charter has been revoked. The Employer continues to check
off union dues, but is holding the dues in escrow. It has declined
to recognize the Distillery Workers, AFL, pending disposition of
this proceeding. There have been no grievances to process.
In similar situations where some of the employees , dissatis-
fied with their representation or with the bargain made by their
representative , desire to change such representation at a time
5 According to Fogle, the CIO Local's financial secretary, Fessenden, the Brewery Work-
ers, CIO's, regional director, told the Local's officers that the women had their minds made
up, that "there wasn't a thing you could do," and that he "wouldn't have any more to do with
us," and that "the best thing for you boys to do is to get back out there and get with them."
However, according to Donahue, one of the officials said: "It looks like that you have
A.F. of L.," to which another official replied: "Hell, we don't give up that easy."
6 After the CIO officials left, the CIO Local's officers joined the other members in the
meeting, but did not offer to preside Two temporary officers were elected.
?One witness testified that from 2 to 4 members did not join in the standing votes, but
neither did they stand to oppose the motions
8 Donahue and three others were elected to do this and they did so the following day.
9Including 1 signed by Donahue, the CIO Local's president who had met with about 100
other employees on June 2 and signed revocations of CIO dues checkoffs and an application
for an AFL charter. Donahue reasoned at the hearing: "So far as myself, I was satisfied
with the contract that we had and if it would hold I would say okay; if it doesn't, why we
have to have representation of some sort and the A F. of L of course is the next choice."
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
generally considered inappropriate by the Board, the Board
has held that the mere fact that they have expressed that dis-
satisfaction in formalized action is not by itself sufficient
reason for making an exception to the normal contract-bar
rule.10 Before applying the schism doctrine, the Board must be
convinced that the bargaining relationship is so confused that
no stabilizing purpose would be served by applying the contract-
bar rule, and the Board will not permit the schism doctrine to
be used to facilitate raiding by a rival union." Moreover, the
Board will not accord any validity toa formalized disaffiliation
proceeding when, by reason of the control by the rival union over
the disaffiliation proceeding, a vote is not taken at a meeting of
the contracting union.12
Applying these principles to the present case , we believe that
the situation does not warrant an exception to the contract-bar
rule. We find that the Petitioner actively assisted the dissident
employees in their efforts at disaffiliation, that the May 25
meeting effectually became an AFL meeting after the CIO offi-
cials departed, and that there remains sufficient support of the
CIO Local for it to represent the employees and to administer
the contract.
As the existing contract will not expire until January 15,
1954, we find that it is a bar to the present petition. We shall
therefore dismiss it, without prejudice to a timely refiling.'3
[The Board dismissed the petition.]
10 Allied Container Corporation, 98 NLRB 580.
1lSaginaw Furniture Shops, Inc., 97 NLRB 1488; Dennis-Mitchell Industries, 101 NLRB
846.
12 Bendix Products Division, 98 NLRB 1180.
13 In light of this disposition of the case, we deny the motion of the Brewery Workers,
CIO, to reopen the hearing.
GENERAL ELECTRIC COMPANYand INTERNATIONAL UNION
OF ELECTRICAL, RADIO AND MACHINE WORKERS, CIO,
Petitioner . Case No . 9-RC-1939. July 23, 1953
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before William G.
Wilkerson, hearing officer. The hearing officer' s rulings made
at the hearing are free from prejudicial error and are hereby
affirmed.1
'The Petitioner's motion, made at the hearing, to consolidate the instant case with Case
No. 9-RC-1839 was reserved for the Board. As the Board's decision in that case issued on
May 26, 1953, the day of the hearing in the present case, the motion is denied. The Peti-
tioner's motion made in its brief, that the Board review the compliance status of the Greater
Louisville Metal Trades Council of Louisville, Kentucky, AFL, as it pertains to that organi-
zation's participation in Case No. 9-RC-1839, is not properly before the Board and is there-
fore denied.
106 NLRB No. 66.