Lewin-Mathes Co.

National Labor Relations Board - Board Decisions

Jun 30, 1953

105 N.L.R.B. 911 (N.L.R.B. 1953)

G. MATHES DIVISION OF LEWIN-MATT-IES COMPANY 911
position and contentions of Respondent Unions and their counsel are set forth in footnotes 4,
5, and 38 of the Intermediate Report as sarne appears in 87 NLRB 1263 at pages 1269,
1270, and 1279, respectively.
D_ uring the original hearing and at the close thereof, counsel for the charging party moved
to strike the testimony of Byrnes because he had refused, upon advice of counsel, to answer
questions on cross-examination as to matters which occurred before the Mediation Board
meetingsi The undersigned reserved ruling for his Intermediate Report, wherein the motion
to strike was denied.
The record discloses that other than an admission that he attended meetings before the
New York State Mediation Board, Byrnes gave no testimony. 3
CONCLUSIONS: RECOMMENDATIONS
Having duly considered the testimony of Byrnes on cross-examination before the under-
signed on April 22, 1952, the undersigned is of the opinion that had such testimony been a
part of the record at the time the Intermediate Report was prepared and submitted (June 7,
1948), the findings, conclusions, and recommendations would have remained as then made and
submitted. The Board's finding to the effect that proposals by Respondent Unions made
subsequent to oral argument and inconsistent with it were presented as alternatives to that
agreement and to induce the Company to put it in writing and perform it , is, of course,
binding upon the undersigned.
The undersigned is of the opinion that Byrnes' testimony on cross-examination, referred
to above, will not support a finding that the Respondent Unions have abandoned the July
agreement in issue herein; and that such testimony is not inconsistent with its claim to
the contrary. It is so found.
On the foregoing and the instant record it is recommended that the Board abide by its
decision of December 21, 1949, dismissing said case.
3At all times material herein, the Board's Rules and Regulations read as follows:
Sec. 102 44 Contemptuous conduct; refusal of witness to answer questions.-Contemp-
tuous conduct at any hearing before a trial examiner or before the Board shall be
ground for exclusion from the hearing. The refusal of a witness at any such hearing to
answer any question which has been ruled to be proper shall, in the discretion of the
trial examiner, be ground for striking all testimony previously given by such witness on
related matters (Underscoring supplied.)
G. MATHES DIVISION OF LEWIN-MATHES COMPANY and
UNITED TEXTILE WORKERS OF AMERICA, AFL and its
LOCAL 1282, Petitioner. Case No. 14-RC-2147. June 30, 1953
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Harry G. Carl-
son, hearing officer. The hearing officer ' s rulings made at the
hearing are free from prejudicial error and are hereby affirmed.
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
employees of the Employer.
3. No question affecting commerce exists concerning the
representation of employees of the Employer within the meaning
of Section 9 (c) (1) and Section 2 (6) and (7) of the Act, for the
following reasons:
On February 5, 1952, the Employer and the Textile Workers
Union of America , CIO, the Intervenor herein, executed a
105 NLRB No. 134
9 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2-year bargaining contract covering , with certain exceptions,
an all-employee unit at the Employer's St. Louis plant, as
certified by the Board on December 19, 1951, in Case No.
14-RC-1584. The petition herein, for the same unit, was filed
February 13, 1953, by the United Textile Workers of America,
AFL, who moved to amend their petition at the hearing to
include as a copetitioner its Local 1282, newly organized to
represent the said employees--a motion we hereby grant.
The Intervenor and the Employer urge the February 1952
contract, which contained a union-security clause, as a bar.
The Petitioner contends that it is no bar for two reasons:
(1) The existence of a schism inthe employee ranks concerning
their bargaining representative; and (2) the ineffectiveness
of the contract as a bar because the Intervenor's St. Louis
Joint Board and its Local 1282, although both in compliance
before this proceeding was begun, were not in compliance
at the time of the 1951 certification and the contract negotia-
tions.
Alleged schism: In January 1953 William A. Doyle, an
international representative of the Textile Workers Union of
America, CIO, and business agent of its St. Louis Joint Board,
with which all locals of the Union in the area are affiliated,
severed his connection with that Union and so advised President
Johnnie Clarke of CIO Local 1282. At his suggestion Clarke
called off the regular meeting of the Local scheduled to be
held January 29. Regular November and December meetings
had also not been held, but a special meeting to select a
committee for wage reopening negotiations was called for
February 5, 1953, by Joint Board Manager Bert Miller.
On February 8, Clarke signed and posted notices sent her
by Doyle for a special meeting of "All G. Mathes Union
Members," to be held on February 10 at a Teamsters Hall
instead of the customary meeting place , "to discuss and act
upon the matter of continued affiliation with Textile Workers
Union of America, CIO." However, she informally discussed
the matter of attendance' with various members at work and,
with several other officers , went instead to a St. Louis Joint
Board meeting scheduled for that night. Because of this,
Vice-President Aemisegger of the CIO Local took charge of
the meeting at the Teamsters Hall, which was attended by
57 of the 225 total membership--approximately the average
attendance . Doyle attended and stated his reasons for leaving
the Textile Workers, CIO. After discussion by the members
of the wisdom of their doing likewise , a motion to disaffiliate
from the Textile Workers Union of America, CIO, and affiliate
with the United Textile Workers of America, AFL, was made
and carried by a show of hands--uncounted but without votes
in opposition . A list signed during the course of the meeting
by 57 employees was identified by Aemisegger and admitted in
evidence to show the number and identity of those attending
the meeting. This list was captioned: "We, the undersigned,
hereby now withdraw from membership in Textile Workers
Union of America, CIO, Local 1282, and hereby declare that
G MATHES DIVISION OF LEWIN-MATIIES COMPANY 913
we have joined the United Textile Workers of America, AFL,
which we designate as our collective bargaining agent with
respect to wages, hours and other conditions of employment."
Lists similarly captioned and containing 68 signatures secured
sometime after the February 10 meeting were rejected
as evidence by the hearing officer, a ruling to which the Peti-
tioner excepted. Aside from the fact that at least 9 of these
names duplicate names on the list signed at the meeting,
consideration of the lists would have no effect on our determi-
nation here, nor would consideration of the authorization cards
for AFL Textile Union membership, as well as Board receipts
for additional authorization cards, sought to be introduced by
the Petitioner.
On February 11, an international representative of the
Petitioner advised the Employer by wire and by letter that
it claimed to represent a majority of the Employer's employees
in the bargaining unit, and the letter gave "notice" not to
pay checkoff funds to the CIO Union. Two days later the
petition herein was filed. On March 5, 1953, at a meeting of
AFL Local 1282, its new charter was presented to the member-
ship and officers were elected.
In the meantime the CIO Local held its regularly scheduled
monthly meeting on February 25, negotiated with the Employer
on wages at several meetings , and processed a grievance
concerning drinking fountains . Its president , Clarke, testified
that its bank account was active and that it had recruited new
members. A representative of the Employer testified that no
employee had requested the right to revoke a checkoff. On
behalf of the Petitioner there was testimony that the new Local
1282 had filed a grievance concerning an appropriate place
for employees to lunch.
On these facts not only is there doubt that the disaffiliation
action took place at a meeting of the contracting union in view
of the manner of calling the meeting and the place of holding
it,' but it is clear from the continued activity of the CIO Local
that the disaffiliation expression at the February 10 meeting
was indicative merely of a dissident element in the member-
ship, not of a substantial and effective change in the existence
and functioning of the recognized bargaining agent.2 We find
the alleged disaffiliation action insufficient to render the
contract ineffective as a bar.
Alleged Effect of Noncompliance of CIO Local 1282 and
the St. Louis Joint Board at the Time of Contract Execution
The contract here in question is one between the intervening
International Union and the Employer. The Intervenor's St.
Louis Joint Board is not a party to it, nor is its Local 1282,
which was chartered and came into compliance after execution
of the bargaining contract on February 5, 1952. The St. Louis
'See Lewittes and Sons, 96 NLRB 775.
2See Allied Container Corporation, 98 NLRB 580.
9 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Joint Board achieved compliance for the first time on February
2, 1953. The contract refers throughout to "the Union,"
without reference to local or joint board organizations. It
was signed for the Union by Doyle as "Nat. Rep." and by
individual employees.
The Petitioner contends that the facts surrounding recogni-
tion of the Intervenor as bargaining representative constituted
a "fronting " situation , with the real parties in interest
being, not the complying International, but the incipient local
and the St . Louis Joint Board ; hence that , in the absence of
compliance by the said local and Joint Board , no election
should have been held , no certification issued, and no contract
resulting therefrom should bar another petition.
The Intervenor, on the contrary , contends that there was
no local organization to achieve compliance until the contract
had been negotiated -- in accord with the Intervenor ' s customary
manner of organizing and negotiating for employees --and that
the Joint Board agent acted on behalf of the International up
to the time of contract execution . Thus it argues that the
International was clearly the real party in interest during the
1951 - 52 representation proceeding and contract negotiations,
and only it was required to comply with the Act's filing require-
ments .
We note that the employee group which , after contract, was
chartered as Local 1282 , met on an informalbasis , sometimes
on parking lots near their place of employment , up until the
time of the December 1951 representation election , and, only
after success in that election , chose temporary officers. It
also appears that the question of assigning these employees
a local of their own, or of including them in an existing local,
was undecided before the election , although precisely when
or how that question was resolved does not appear . In organizing
these employees and negotiating the contract Doyle, not the
local group itself, took the initiative.
As to the Joint Board's activity, it is clear that its bylaws,
pursuant to provisions of the international constitution, au-
thorized it to organize employees and negotiate bargaining
agreements . But Doyle , though paid as its business agent by
the St. Louis Joint Board , had a dual capacity as representative
of the International and he executed the contract in question
only in the latter capacity. His testimony that contracts and
petitions were customarily in the name of the International
"for compliance reasons " was amplified by him as occasioned
by a difference of opinion in union circles as to whether com-
pliance by any joint board was even necessary under the Act
in view of the purpose of joint board existence --to service
locals in each area and to coordinate local activities. On
these facts we consider it unnecessary to decide whether the
St. Louis Joint Board is itself a labor organization of which
we would require compliance were the question one of allowing
the International to appear on a ballot or be certified . Likewise
we deem it unnecessary to decide whether the local group
organization was sufficiently perfected to have required its
compliance for those purposes.
AMERICAN STORES COMPANY 915
After careful consideration of all the facts and the arguments
presented here, the Board concludes that its fronting doctrine,
formulated as it was as a policy to discourage circumvention
of the Act's filing requirements, 3 should have no application
to the question of contract bar presented here. In this connec-
tion we emphasize the fact that the International is the sole
union party to the contract urged as a bar, that no question
concerning its exclusive representation of these employees
was raised at the time, and that the subordinate union entities
alleged to have been "fronted for" later achieved compliance,
before this proceeding was begun. We deem our decision in
Fein's Tin Can Co., Inc. and Atlas Can Corporation, 99 NLRB
158, inapplicable in this situation. Accordingly, we find that
the February 5, 1952, contract is a bar to a present determina-
tion of representatives.
[The Board dismissed the petition.]
Chairman Herzog took no part in the consideration of the
above Decision and Order.
AMERICAN STORES COMPANY and LOCAL 804, UNITED
ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF
THE PLUMBING AND PIPE FITTING INDUSTRY OF THE
UNITED STATES AND CANADA, AFL, Petitioner. Case
No. 5-RC-1245. June 30, 1953
DECISION AND ORDER
Upon a petition duly filed, a hearing was held before Henry
A. Segal, a hearing officer of the National Labor Relations
Board. 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 National
Labor Relations Act, the Board has delegated its powers in
connection with this case to a three-member panel [Members
Houston, Murdock, and Styles].
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the meaning
of the National Labor Relations Act.
2. The labor organizations named below claim to represent
employees of the Employer.
3. No question of representation exists concerning the
representation of employees of the Employer, within the
meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the
Act for the following reasons:
Since 1938 the International Union of Operating Engineers,
AFL, Locals Nos. 272 and 272A, the Intervenor herein, has
bargained for the Employer's Zone No. 6 engineers and main-
tenance men in the Baltimore , Maryland , area . Beginning in
1948 the contractual unit has described these employees as
3See Lane Wells Company, 77 NLRB 1051, 79 NLRB 252.
105 NLRB No. 133.