Lewittes and Sons

National Labor Relations Board - Board Decisions

Oct 11, 1951

96 N.L.R.B. 775 (N.L.R.B. 1951)

r
LEWITTES AND SONS
Recommendations
775
Upon the basis of the foregoing findings of fact and conclusions of law and
upon the entire record in the case, the undersigned recommends that the com-
plaint herein be dismissed.
WILLIAM, BERTHA, MORRIS, FANNIE, DAVID, CHARLOTTE, SARAH, AND
ISRAEL LEWITTES, COPARTNERS D/B/A LEWITTES AND SONS and UP-
HOLSTERERS INTERNATIONAL UNION OF NORTH AMERICA, AFL, PETI-
TIONER. Case No. 2-RC-506. October 11, 1951
Decision and Order
Upon a petition duly, filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before I. L. Broadwin, hear-
ing 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-mem-
ber panel [Members Houston, Reynolds, and Styles].
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 representa-
tion 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 and Local 78 contend that their current contract,
which was executed November 16, 1950, and will expire August 1,
1952, constitutes a bar to this proceeding. The Petitioner argues that
this contract was executed in disregard of the instructions of the then
existing membership of Local 78, and that there has been a schism
in Local 78. For these reasons it contends that the contract in ques-
tion cannot operate as a bar.
As to the contention that the contract was not validly executed,
the record discloses the following pertinent facts :
Negotiations which resulted in the execution of the current agree-
ment between the Employer and Local 78 began early in September
1950. The bargaining conferences were held between the Employer
' Local 78, Furniture Worker's Union, CIO (hereinafter Local 75), was permitted to
Intervene on the basis of a current contract with the Employer.
96 NLRB No. 109.
776 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
and a negotiating committee composed of employee representative
from each department, the president and financial secretary of Local[
78, and a representative of Local 78's International. These confer-
ences were preceded and followed by private meetings of the nego-
tiating committee at which the claims advanced by the representatives
from each department were discussed. On or about November 10,
1950, at a general membership meeting of Local 78, the contract which
had emerged from the various negotiating conferences and meetings.
was read to the membership and approved by a majority vote. The
record establishes that Charles Bell, who was then president of Local,
78, was instructed to execute the agreement, although there is also,
some testimony to the effect that following such execution the con-
tract was to be brought back to the membership for a second vote. At
this meeting Angelo Turco, who was on the negotiating committee
representing employees in the upholstering department, expressed dis-
satisfaction with the proposed contract in that it failed to contain
certain special vacation benefits he had sought for the upholstering
employees.
On November 16, 1950, Bell, together with Margaret Hustis, finan-
cial secretary of Local 78, a representative of the International, and.
another CIO official, met with the Employer. Turco and another
representative from the upholstery department were present, to afford
them an additional opportunity to obtain the more favorable vacation,
clause they were seeking for the upholsterers.
The Employer refused to grant such a clause, whereupon Turco,
and his associate left before the final execution of the contract. Belli
then affixed his signature to the contract, as did the Employer. The,
next day Bell distributed mimeographed copies of the executed con-
tract to the general membership. Only Turco and those in the up-
holsterers' department for whom he spoke voiced disapproval of the.
executed contract.
On these facts we find without merit the Petitioner's. contention,
that the contract in question cannot operate as a bar because its exe-
cution was unauthorized. The contract which was signed by the-
parties on November 16, 1950, contained only such provisions as had_
been approved by a majority of the members of Local 78 on No-
vember 10, at which time President Bell was authorized to execute
the agreement. Even if we assume that Bell's authority was in fact
limited by a requirement that the agreement be brought back for
final approval, there is no evidence that the Employer was apprised
of any such limitation on Bell's authority to make a final and binding
agreement. Under all the circumstances, we conclude that the con- -
tract was executed for Local 78 by one who had at least apparent au-
LEWITTES AND SONS 777
thority to sign. We have held in related situations that we will not
look behind such authority?
As noted above, the Petitioner further contends that the contract
is not a bar to this proceeding because a schism in the membership of
Local 78 creates a doubt concerning the continued representation by
that union of the employees involved herein.
The facts bearing upon this contention may be summarized as
-follows :
After the contract had been executed, 43 of the 53 employees in
the upholstering department lead by Turco struck, resigned from
Local 78, and demanded that the Employer enter into a separate
agreement with them. This request was refused. On December 1,
1950, during the strike, Turco and 2 fellow upholsterers filed a
petition with this Board (Case No. 2-RD-110) seeking to decertify
Local 78. The petition was dismissed administratively on the ground
that the November 16, 1950, agreement was a bar and, on appeal,
this dismissal was sustained by this Board. Turco then organized
the striking upholsterers as a labor organization, with himself as
president, and affiliated with the Petitioner herein. The strike, which
caused a layoff of other production employees, continued until Janu-
ary8,1951.
After he had returned to work, Turco secured an old checkoff
list of members of Local 78, and on March 1, 1951, at his own expense,
sent notices to about 80 or 90 names on this list advising that a special
membership meeting was to be held at the meeting hall used by the
Petitioner herein, on Sunday, March 4, 1951, to consider disaffiliation
from Local 78 and affiliation with the Petitioner. At the time this
announcement was sent to the 80 or 90 names on the list which Turco
had obtained there were about 168 members in Local 78.' No notices
of this meeting were posted in the plant nor were notices printed
in the local paper, as had been the practice in the case of Local 78
meetings.
The meeting was held as scheduled, and at the outset was presided
over by Bell. A roll call taken demonstrated that of the 60 persons
present only 23 were then members of Local 78. The others at the
meeting were mainly upholsterers who, as noted above, had resigned
the prior November. Turco moved disaffiliation from the CIO. His
motion was not recognized because he was no longer a member of
Local 78. He then attempted to tender his and the dues of the other
resigned upholsterers present, which was refused. This provoked
a great deal of noise and confusion, as a result of which Bell ad-
journed the meeting and left the meeting hall together with some
2 See Alaska Salmon Industry, Inc., 89 NLRB 1379; C Hager & Sons Hinge Manufac-
turing Company, 80 NLRB 163; Dictaphone Corporation, 78 NLRB 866; Electro Metal-
lurgical Company, 72 NLRB 1396.
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CIO international officers who had attended as well as most of the,
23 Local 78 members. Turco then chaired the meeting and the re-
maining group, composed in the main of the dissident upholsterers,
passed a unanimous motion to disaffiliate from Local 78 and affiliate
with the Petitioner herein.
The record further shows that since the March 4 meeting, Local
78 has continued to function, to administer the contract including the
processing of grievances, and to hold regular, well-attended meetings.,
Except for Bell, who, shortly after the March 4 meeting, terminated
his employment with the Employer, the same -officers and committee-
men have continued to function.
These facts do not, in our opinion, warrant application of the schism
doctrine set forth in the Boston Machine case.3 In all cases in which
this Board has applied that doctrine it has regarded as an essential
element the fact that the members of the contracting union, gathered
at a meeting held for such purpose, have expressed through a formal
vote their desire to take action affecting the existence or continued
functioning of the union concerned 4 It is only from such formalized
action that the Board is able to ascertain that the representative status
of the contracting union has been placed in doubt, and the bargaining
relationship thereby placed in a state of confusion. Without the
requirement of formalized action at an appropriate union meeting it
would be impossible to distinguish the cases in which there has been
a substantial and effective schism resulting from the democratic action
of the members of the union from those in which there has been no
more than an expression of dissatisfaction from dissident minority
elements in the union..
We are unable to conclude, in the instant case, that the disaffiliation
vote taken at the meeting of March 4, 1951, can be regarded as an
expression, through democratic techniques, of the desire of the mem-
bership of Local 78 on matters affecting the continued representative
status of that union. It is true, the Board is not concerned with
whether disaffiliation meetings which are urged as the basis for an
alleged schism compost with the constitution or by-laws of the union.5
Nor is it material that the disaffiliation vote finally taken may conform
to the result desired by a particular group who favored the union to
which affiliation was tranferred.6 What is important is whether the
disaffiliation meeting was held under circumstances in which the vote
taken could have been a true expression of the desires of the member-
ship of the union. It seems plain to us that such was not the case
here, and to reach this conclusion we need look no further than the
e Boston Machine Works Company, 89 NLRB 59.
* See Columbia River Salmon and Tuna Packers Association , 91 NLRB 1424.
5 See General Motors Corporation, 88 NLRB 450; Sperry Gyroscope, 88 NLRB 907.
6 See Harrisburg, Railways Company, 94 NLRB 1028.
RIEGEL PAPER CORPORATION 779
manner in which the meeting was announced. There were no public
notices in the way in which meetings of Local 78 were customarily
announced ; instead notices were sent to a group of about 80 or 90
persons, constituting a little more than one-half of the then existing
membership of the Union. When to this is added the fact that only
23 members of the Union were present at the meeting, and that most
of these had left before the disaffiliation vote was taken, the conclusion
that the disaffiliation vote was not a valid expression of the desires of
the membership is inescapable.
We conclude, on the record before us, that there has been no such
schism in Local 78 as would warrant the conclusion that the current
contract may not operate as a bar. Accordingly, we shall dismiss
the petition.
Order
Upon the basis of the foregoing findings of fact, and upon the entire
record in the case, the National Labor Relations Board hereby orders
that the petition filed herein be, and it hereby is, dismissed.
RIEGEL PAPER CORPORATION and INTERNATIONAL BROTHERHOOD OF
PAPER MAKERS, AFL, PETITIONER. Case No. 4-RC-1203. October
11, 1951
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Harold Kowal , 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 [Chairman Herzog and Members 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 Act.
2. The labor organization involved claims to represent employees
of the Employer.
3. No question affecting commerce exists concerning the representa-
tion 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 Petitioner seeks a unit of all production and maintenance
employees, including truck drivers, at the Employer's Warren Glen
plant, excluding guards, watchmen, professional and clerical em-
96 NLRB No. 113.