Dichello, Inc.

National Labor Relations Board - Board Decisions

Mar 18, 1954

107 N.L.R.B. 1642 (N.L.R.B. 1954)

1642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
what steps the Respondent has taken to comply with the terms
of this Decision and Determination of Dispute.
Member Beeson took no part in the consideration of the
above Decision and Determination of Dispute.
DICHELLO, INCORPORATED and LOCAL 37, INTERNA-
TIONAL UNION OF UNITED BREWERY , FLOUR, CEREAL,
SOFT DRINK AND DISTILLERY WORKERS OF AMERICA,
CIO, Petitioner . Case No. 2-RC-6428 . March 18, 1954
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Nathan Cohen,
hearing officer .' The hearing officer's rulings made at the hear-
ing 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 cer-
tain employees of the Employer.
3. No question affecting commerce exists concerning the rep-
resentation of employees of the Employer within the meaning of
Section 9 ( c) (1) and Section 2 (6) and ( 7) of the Act , for the fol-
lowing reasons:
The Intervenor contends that its current contract with the Em-
ployer is a bar to this proceeding and moves to dismiss the
petition . Although the Employer ' s position is not entirely clear,
it appears to agree with the Intervenor that their contract is a
bar. The Petitioner asserts that the union - security provision of
the contract is illegal because of the Intervenor ' s failure to
achieve timely compliance with Section 9 of the Act and that
therefore the contract is not a bar.
On August 9, 1953, at a meeting of Local 40 of International
Union of United Brewery, Flour , Cereal, Soft Drink and Distill-
ery Workers of America , CIO, hereinafter called the Brewery
Workers, a majority of the workers present voted ( 1) to disaf-
filiate from the Brewery Workers and ( 2) to affiliate with Inter-
national Brotherhood of Teamsters , Chauffeurs , Warehouse-
'Brewery Workers, Soft Drink Workers and Liquor Drivers, Local 1040, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL,
hereinafter called the Intervenor, intervened on the basis of its current contract.
2 At the hearing, the hearing officer properly rejected the Petitioner's offer to prove,
among other things, that an individual, now the secretary-treasurer and business repre-
sentative of the Intervenor, made threats to employees during the Intervenor 's organi-
zational campaign, It is the Board's established practice to exclude from representation
hearings all evidence relating to unfair labor practices. Worden-Allen Company, 99 NLRB
410, and cases cited therein.
107 NLRB No. 325.
DICHELLO, INCORPORATED 1643
men and Helpers of America, AFL, hereinafter called the Team-
sters.3 In September the new organization accepted a charter
from the Teamsters and thus became its Local 1040, the Inter-
venor in this proceeding.
Thereafter, the Intervenor took steps to comply with Section
9 of the Act. On or about November 9, 1953, the Intervenor
filed in the Regional Office (1) the non-Communist affidavits re-
quired by Section 9 (h) of the Act and (2) a Certificate of Intent,
Form NLRB - 3054, which is a form used by a labor organiza-
tion to notify the Board of its intent to remain in compliance with
Section 9 (f) and (g) of the Act.4 This certificate stated, among
other things, that within 90 days after the fiscal year ending
October 31, 1953, the Intervenor intended to (1) refile with the
Department of Labor the financial data covering such fiscal
year; (2) furnish such data to its members; and (3) notify the
Board by filing Form NLRB- 1085, Distribution of Financial Data
Certificate.
On November 23, 1953, the Employer and the Intervenor en-
tered into a contract, covering employees sought herein by the
Petitioner, effective until March 1, 1955, and thereafter in the
absence of notice. This contract contained a union- security pro-
vision.' On November 30, 1953, the Petitioner filed its petition
in this proceeding. At the time of the hearing on the petition,
held on December 29, 1953, and January 8, 1954, the Intervenor
had not as yet achieved compliance with Section 9 (f) and (g).
We are now administratively informed , however, that the In-
tervenor achieved full compliance with Section 9 (f) and (g) with-
in 90 days after the end of its fiscal year on.October 31, 1953,
as promised in its Certificate of Intent, described above.
The Board has recently determined in the New Idea case6
that a union's noncompliance at the time its union-security
agreement is made does not render the agreement so defec-
30ne hundred and fifty-five votes were cast for, and 15 votes were cast against, each
proposition. The constitution of the Brewery Workers provides, in part:
Any local Union chartered by the International Union shall continue to exist as a Local
of the International Union, unless its charter is revoked or suspended, as long as
seven (7) or more members desire to remain in the Local Union who are willing to
comply with the Constitution of the International Union.
The Brewery Workers appointed a trustee for its Local 40.
4In an exchange of correspondence between the Intervenor and the United States Department
of Labor, the Intervenor, by letter dated November 17. 1953, informed the Department that
its officers and financial statement for the fiscal year ended December 31, 1952, were the
same as those set forth in the report filed for that year by Local 40 of the Brewery Workers.
Thereafter, the Intervenor received a post card from the Department , stating in substance
that the Intervenor, formerly Local 40 of the Brewery Workers, had complied with Section 9
( f) and (g ) of the Act for that fiscal year.
5 Section 8 (a) (3) of the Act, as amended in October 1951, requires, with respect to union-
shop contracts, that a labor organization must have "at the time the agreement was made
or within the preceding twelve months received from the Board a notice of compliance with
sections 9 (f), (g), and (h) ... .
6New Idea, Division Avco Manufacturing Corporation, 106 NLRB 1104. See also Grand
Leader Dry Goods Company of South Bend, Indiana, 106 NLRB 1141, and Industrial Luggage,
Inc., 106 NLRB 1128
1644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive that for contract-bar purposes it is incapable of being
cured by subsequent compliance. In that case, the contracting
union achieved compliance after the union-security agreement
was made and before the petition was filed. In the instant case,
although the Intervenor did not achieve compliance until after
the execution of the agreement and the filing of the petition, it
did before either of these events appropriately indicate its in-
tent to effect compliance and has done so. Under these circum-
stances , we believe that this case falls within the doctrine enun-
ciated in the New Idea and subsequent cases. We therefore find
that the Intervenor's compliance with Section 9 was timely,
and,that the current contract is a bar to a present determination
of representatives." We shall, therefore, grant the Intervenor's
motion to dismiss the petition.
[The Board dismissed the petition.]
Members Rodgers and Beeson took no'part in the considera-
tion of the above Decision and Order.
7 In view of our finding that the contract is a bar for reasons indicated above, it is un-
necessary to consider, the Intervenor's other contentions relative to this issue.
MILTON OIL COMPANY and OFFICE EMPLOYEES INTER-
NATIONAL UNION, AFL, LOCAL 13, Petitioner. Case No.
14-RC-2434. March 18, 1954
DECISION, ORDER, AND DIRECTION OF ELECTION
On November 20, 1953, pursuant to a stipulation for certi-
fication upon consent election, an election by secret ballot
was held under the direction and supervision of the Regional
Director for the Fourteenth Region among employees in the
stipulated unit. The tally of ballots furnished the parties after
the election shows that, of approximately 20 eligible voters,
20 cast ballots, of which 8 were for, and 12 were against, the
Petitioner. On November 27, 1953, the Petitioner filed timely
objections to conduct affecting the results of the election.
In accordance with the Board's Rules and Regulations, the
Regional Director conducted an investigation of the matters
raised by the Petitioner's objections and, on January 14, 1954,
issued and duly served upon the parties his report on objec-
tions, in which he recommended that a hearing on the objec-
tions be ordered. Thereafter, the Employer timely filed
exceptions to the report on objections.
On January 29, 1954, the Board, having duly considered the
report on objections and the exceptions thereto, issued an
107 NLRB No. 326.