Bluff City Transfer & Storage Co.

National Labor Relations Board - Board Decisions

Jul 21, 1970

184 N.L.R.B. 604 (N.L.R.B. 1970)

604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bluff City Transfer & Storage Company ' and Local
19, Retail , Wholesale and Department Store
Union , AFL-CIO, Petitioner . Case 26-RC-3712
July 21, 1970
DECSION AND ORDER
BY MEMBERS FANNING, MCCULLOCH, AND JENKINS
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Paul M.
Coran of the National Labor Relations Board.
Thereafter, the Employer, the Petitioner, and the
Intervenor2 filed briefs.
Pursuant to the provisions of Section 3(b) of the
Act, the Board has delegated its powers in connec-
tion with this case to a three-member panel.
The Hearing Officer 's rulings made at the hearing
are free from prejudicial error and are hereby af-
firmed.
Upon the entire record in this case, the Board
finds:
1. The parties stipulated and we find that the
Employer is engaged in commerce within the mean-
ing of the Act and it will effectuate the purposes of
the Act to assert jurisdiction herein.
2. The parties stipulated and we find that the
Petitioner and the Intervenor are labor organiza-
tions within the meaning of the Act, and claim to
represent certain employees of the Employer.
3. We find that 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:
The Employer is engaged at Memphis, Tennes-
see, in the interstate transportation of freight. On or
about February 18, 1970, the Petitioner requested
recognition as bargaining representative for the em-
ployees in the requested unit. On February 24, the
Petitioner filed the petition herein, seeking an elec-
tion in the following unit, which the parties stipu-
lated is appropriate and which is substantially the
same as the unit covered by a current agreement
between the Employer and Local 19, Retail,
Wholesale and Department Store Union,
AFL-CIO:
All warehousemen, packers, truckdrivers, help-
ers, craters, mechanic, and salespeople em-
' The name of the Employer appears as amended at the hearing
' Local 19 , Distributive Workers of America , affiliated with the National
Council of the Distributive Workers of America , was permitted to inter-
vene on the basis of its claim to be a party to the current collective -bargain-
ing agreement
ployed at Employer's plant operations located
at 3569 Air Park, Memphis, Tennessee, and
excluding all office and clerical employees, su-
pervisors, and guards as defined in the Act.
On September 23, 1968, pursuant to a Stipula-
tion for Certification Upon Consent Election
Agreement,3 Local 19, Retail, Wholesale & Depart-
ment Store Union, AFL-CIO, was certified by the
National Labor Relations Board as the representa-
tive of the employees involved herein. Thereafter,
negotiations resulted in the execution of the afore-
mentioned collective-bargaining agreement, which
is effective from May 9, 1969, through May 8,
1972. This agreement was signed on behalf of the
certified union by Earl H. Fisher, president of Local
19, and a three-member employee shop committee.
The agreement was not signed by any RWDSU
representative.
Article XVII of the existing collective -bargaining
agreement provides for checkoff of union dues, and
the Employer introduced into evidence checkoff
authorizations signed by 19 of the approximately 25
employees in the appropriate unit at the time of the
hearing in this proceeding.4 All but two of these
authorizations were also signed by Earl H. Fisher
on behalf of the certified union.
By counsel's letters dated October 28, 1969, and
February 18, 1970, respectively, the Petitioner
notified the Employer that Fisher was no longer
president of Local 19, RWDSU, AFL-CIO, and
that Eugene Newbern was the duly elected
representative of Local 19, RWDSU; and requested
the Employer not to deal with Fisher or transmit to
him or to Local 19, DWA, NCDWA, any moneys
deducted pursuant to the above checkoff authoriza-
tions. W. R. Almond, Jr., secretary and operations
manager of the Employer, testified that the Em-
ployer complied with this request. Almond also
testified that there has been no attempted revoca-
tion of any of the dues-checkoff authorizations; no
grievances have been filed under the existing agree-
ment; no work interruptions have occurred; and the
relationship between the Company and the Union
has been stable and pleasant. The only other wit-
ness at the hearing, Walter McGoughy, who signed
the collective-bargaining agreement as an em-
ployee-member of the shop 'committee, also
testified that no grievances have been filed under
the agreement and no work interruptions have oc-
curred. He further testified that the remaining two
members of the shop committee, who also signed
' Case 26-RC-3235
' At the time of the election , there were 31 eligible voters in the ap-
propriate unit , and 14 cast ballots for the Petitioner , 8 against , and 4 were
challenged
184 NLRB No. 83
BLUFF CITY TRANSFER & STORAGE COMPANY 605
the existing agreement , have continued to serve on
the committee subsequent to the disaffiliation vote
of November 20-21, 1969.
By letter dated February 16, 1970, and signed by
Earl H . Fisher, president , the Employer was
notified that more than 51 percent of the members
of Local 19, RWDSU, AFL-CIO, voted on
November 20-21, 1969, to disaffiliate from the
RWDSU, AFL-CIO, and that Local 19 had af-
filiated with the National Council of Distributive
Workers of America . By counsel 's letter dated
March 12, 1970, the Employer informed all parties
that because of these conflicting demands, it did
not know to which of the parties these moneys
should be paid ; and that , upon advice of counsel, it
had established a special bank account into which it
had paid the moneys checked off for February
1970; and that it would continue to do so until or-
dered to do otherwise "by order of a tribunal of
competent jurisdiction or until such time as it no
longer must risk dual liability."
The labor organizations herein are the identical
labor organizations involved in Kimco Auto
Products , Inc., 183 NLRB No. 109. Inasmuch as the
issue of schism and underlying facts relating to their
alleged intraunion conflict are the same in both
Kimco and the present case , the parties, by stipula-
tion , moved that the Board take administrative
notice of the record in Kimco.
As in Kimco , the Petitioner takes the position
that the existing contract is not a bar to an election
because a schism has occurred in the certified bar-
gaining representative , and both the Petitioner and
the Intervenor claim to be the collective-bargaining
representative party to the contract . However, the
Employer in the present proceeding , unlike the Em-
ployer in Kimco , agrees with the Intervenor that the
existing agreement constitutes a bar to a represen-
tation election and thus the petition should be
dismissed . In the alternative , the Intervenor submits
that the Board , in its discretion , should issue an
amended certification in the Intervenor's name.
In these circumstances , and upon the entire
record in this case and in the Kimco case , we find,
for the reasons set forth in Kimco , that the disaf-
filiation action taken by the employees in the bar-
gaining unit did not create such confusion in the
bargaining relationship as to remove the contract as
a bar to an election.
Accordingly , as the existing collective -bargaining
agreement , which will not expire until May 8, 1972,
is otherwise a bar , we shall dismiss the petition.
ORDER
It is hereby ordered that the petition filed herein
be, and it hereby is, dismissed.