Dennis-Mitchell Industries

National Labor Relations Board - Board Decisions

Dec 8, 1952

101 N.L.R.B. 846 (N.L.R.B. 1952)

846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
IRVING BERLIN AND DENNIS BERLIN, CO-PARTNERS, TRADING AS DEN-
NIS-MITCIIELL INDUSTRIES 1 and INTERNATIONAL UNION, UNITED
AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT W ORKERS OF
AMERICA, CIO, PETITIONER. Case No. 4-RC-1718. December 8,
1952
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Morris Mogerman,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed 2
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-mem-
ber panel [Chairman Herzog and Members Murdock and Peterson].
Upon the entire record in this case, the Board finds :
1. The Employers are engaged in commerce within the meaning
of the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.
3. No question affecting commerce exists concerning the representa-
tion of employees of the Employers within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act.
The Employers and the Intervenor, Local 404, Upholsterers Inter-
national Union, AFL, contend that an existing contract is a bar to
the instant proceeding.
The Intervenor, an amalgamated local, has been the recognized bar-
gaining representative of the Employers' production and maintenance
employees since 1946. A previous agreement had expired in December
1951. The contract urged as a bar herein states that it was executed
on the 4th day of April 1952 and will not expire before October 31,
1953. The Petitioner filed its petition on the 21st day of August 1952.
The Petitioner asserts that the existing contract is not a bar because:
(1) The contract was not signed until after the Petitioner had made
its demand for recognition upon the Employers; (2) a schism has
occurred within the Intervenor among the employees at the Em-
The names of the Employers appear as amended at the hearing.
' The Petitioner's request for oral argument is hereby denied , as the record and brief
filed on behalf of the Petitioner, in our opinion , adequately present the issues and posi-
tions of the parties.
101 NLRB No. 149.
DENNIS-MITCHELL INDUSTRIES -847
ployers' plant; (3) the contract contains unlawful union-security and
checkoff clauses; 3 and (4) the Intervenor is a defunct union'
The contract was signed by Dennis Berlin, one of the copartners,
on behalf of the Employers; by William J. Heffernan, business agent,
on behalf of the Intervenor; and by Sal D. Hoffman, president of the
Intervenor's International. Two of these signatories, Berlin and Hef-
fernan, testified as to the date upon which, and the circumstances under
which, the contract was signed. Berlin's testimony was to the effect
that on the 4th day of April 1952 one Gahan, a trustee of the Inter-
venor, had brought the contract to Berlin's office; that Berlin had
signed it on that day and had given it back to Gahan; that the latter
took the contract to the Employers' attorney who made a slight change
therein; that about 10 days thereafter the fully executed agreement
was returned personally to him by Heffernan . Upon cross-examina-
tion Berlin also testified that payments to employees whose salaries
were increased by the contract, retroactive to January 1952, had been
made in installments commencing shortly after the contract was
signed. Heffernan testified, in substance, that on or about April 4,
1952, Gahan had brought the contract to him with Berlin's signature
thereon; that on the same day he signed the agreement on behalf of
the Intervenor 6 and then mailed it to the Intervenor's International
for the signature of the International president; that approximately
10 days later lie received the contract signed by Hoffman, the presi-
dent of the International, and on the same day personally delivered
the original executed agreement to Berlin. He also testified that a
meeting to ratify the terms of the agreement was held sometime
before April 4, 1952, the alleged date of execution, but that he had
not attended the meeting.
In support of its contention that the contract was not signed on
the date appearing thereon, the Petitioner produced two witnesses,
the first of whom was Archie Moore, an employee of the Employers
and former shop committeeman for the Intervenor. Moore testified
that in July 1952 he had complained of certain grievances to the Em-
ployers' plant superintendent and had been told by the superintendent
that there was no signed agreement ; that during the same month he
had spoken to Gahan of these grievances and had been told by Gahan
that there was no signed contract; that on August 18, 1952, the date
' We find that these contentions lack validity because (a) the Board has held that the
phrase "within thirty days" grants to the employees the full statutory period in which to
join the union , Spartan Aircraft Company, 98 NLRB 73; (b) the grace period provided
in the union -shop clause and the trial period ' provided for new employees , would , in opera-
tion , expire simultaneously and therefore cannot be discriminatory as applied to new
employees : and (c ) the Board has held that the legality of checkoff provisions similar to
the one contained in the contract herein involved are irrelevant and immaterial on the
contract bar issue Crown Products Company, 99 NLRB 602
4 The record fails to disclose facts to support this contention. We therefore find it to be
without merit.
The record does not reveal whether Heffernan signed in the presence of Gahan.
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
upon which the Petitioner had first demanded recognition, Gahan had
engaged him in a conversation during the course of which Gahan had
again repeated that there was no signed agreement. The Petitioner's
other witness on this issue, Goldie Harper Roberts, testified that on
April 30, 1952, she had gone to see Hecht, the Intervenor's president,
concerning grievances relating to her wage rates; that Hecht told
her, "I want you to go back and tell the people that no contract has
been signed." Roberts and Moore differed in their versions of what
had transpired at the alleged ratification meeting which took place
prior to April 4, 1952. Moore testified that the terms of the contract
were not read ; Roberts testified that not only were the terms read, but
a vote taken thereon.
Because, inter alia, the testimony of the signers of the contract was
not directly refuted and because the record fails to disclose whether
the persons with whom Moore and Roberts had the alleged conversa-
tions actually possessed knowledge as to whether the contract had
been signed, we find that the Employer and the Intervenor have sus-
tained by a preponderance of the evidence the burden of proof that
the contract was fully executed at the time alleged by the Employers
and the Intervenor and before the demand for recognition was made
by the Petitioner.
With regard to the schism contention, the evidence clearly reveals
that the Petitioner's International representative guided the em-
ployees' committee in effectuating the schism plan; that the said repre-
sentative participated in the actual drafting of the resolutions of
disaffiliation and affiliation; that the Petitioner by means of letters on
its official stationery advertised and publicized the proposed disaffilia-
tion meeting; and that three officials of the Petitioner participated in
the meeting and actively assisted the dissident employees in their dis-
affiliation. As a result of the foregoing, we conclude that the meeting
at which the resolution to disaffiliate was adopted was not a proper
meeting of the contracting union. Under similar circumstances the
Board has held that it will not apply its schism doctrine.6
By reason of all of the foregoing and upon the entire record in this
case, we conclude that the contract between the Intervenor and the Em-
ployers bars an election for the determination of representatives of the
Employers' employees at this time. Accordingly, we shall dismiss the
petition.
Order
IT IS HEREBY ORDERED that the petition filed by International Union,
United Automobile, Aircraft and Agricultural Implement Workers
of America, CIO, be, and the same hereby is, dismissed.
O Boyle-Midway, Inc., 97 NLRB 895; Rex Curtain Corporation at at., 97 NLRB 899;
General Electric Company, etc., 98 NLRB 134; Bendier Aviation Corporation, 98 NLRB
1180.