Bendix Aviation Corp.

National Labor Relations Board - Board Decisions

Apr 14, 1952

98 N.L.R.B. 1180 (N.L.R.B. 1952)

1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
7. The Respondent has not violated Section 8 (a) (1) of the Act, through its
plant manager or foreladies permitting employees to harass and attack union
representatives while the latter were passing out pamphlets at the entrance to
Respondent's plant.
[Recommendations omitted from publication in this volume.]
BENDIX PRODUCTS DIVISION, BENDIS AVIATION CORPORATION and
INTERNATIONAL UNION, UNITED PLANT GUARD WORKERS OF AMER-
ICA, AND AMALGAMATED PLANT GUARD, LOCAL No. 7, UPGWA,
PETITIONER . Case No. 13-I?C-2360. April 14, 1952
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Irving M. Friedman, hear-
ing 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 Petitioner and the Intervenor, Bendix Industrial Police
Association, which was allowed to intervene on the basis of its current
contract with the Employer, are labor organizations claiming to rep-
resent certain employees of the Employer.
3. The Employer and the Intervenor assert that their current con-
tract constitutes a bar to this proceeding.. The Petitioner contends
that the contract is not a bar because (1) a schism has occurred in the
ranks of the Intervenor creating a doubt of its continued representa-
tion; (2) the Petitioner is the rightful successor of the Intervenor;
and (3) the contract is not a bar because it contains a provision mak-
ing the agreement terminable at will"
The Intervenor was certified by the Board in 1939 as the bargain-
ing representative for the Employer's policemen, and the parties have
had contractual relations since that time. The last contract was ex-
ecuted October 9, 1950, for a 5-year term? ,
"Article 1 , section 2 of the contract provides : "The Bendix Industrial Police Association
of South Bend , Indiana, agrees that it will not affiliate with any other Local or National
Union or Association , independent or otherwise , during the life of this agreement . Viola-
tion of this provision will give the Division the right to immediately terminate this Agree-
ment. Failure of the Division to terminate this Agreement by reason of violation shall
not constitute a waiver of its right under this provision ." Inasmuch as it appears that
the Employer is not in a position to terminate the contract unilaterally , we find that the
contract is not terminable at will . Cf. Container Corporation of America, 87 NLRB 1345.
2 At the hearing, the Employer 's representative offered to prove that 5-year contracts
were customary in this industry . The hearing officer declined the proffered evidence on
the ground that, in any cases , the Board will hold such contracts valid for the first 2 years
of their life. As such period had not yet elapsed, we affirm the hearing officer's ruling.
98 NLRB No. 169.
BENDIX PRODUCTS DIVISION 1181
On October 26, 1951, Raines, president of the Intervenor, called a
meeting which was attended by a majority of the officers and some half
dozen members of the Union. In response to an invitation by Raines,
McGahey, the Petitioner's president, attended the meeting, and ob-
tained a number of signed membership cards for the Petitioner.
McGahey then made arrangements with Raines whereby the latter
was to organize more members f or the Petitioner and to send McGahey
a copy of the current contract. The next day Raines and Robinson,
the bargaining committeeman, wrote the Employer that they had re-
signed their offices from the Intervenor.3 On November 1, 1951,
McGahey notified the Employer that the Petitioner represented the
majority of the employees in the unit of guards, and thereafter, on
November 10, McGahey filed a petition for representation with the
Board.4
Following these events, several members of the Intervenor, who
were opposed to affiliation with Petitioner, called a meeting on Novem-
ber 12 .5 This meeting was attended by 12 employees, 7 of whom were
members of the Intervenor and 5 of whom became members at the
meeting. These members then determined to carry on the Intervenor
and elected new officers to take the place of those who had resigned.
On November 14 Raines called a meeting of the Intervenor, which took
place in the union hall of the production workers. The evidence shows
that the Intervenor had a membership of 38 at that time and that 26
members attended. The meeting was held in 2 sessions to accom-
modate those working on different shifts. Raines testified that he
opened the meetings and that he then turned the meetings over to
McGahey, Petitioner's president, who "handled the whole thing from
there on in." McGahey explained the nature and operations of the
Petitioner, after which McGahey moved that the members disaffiliate
from the Intervenor and affiliate with Petitioner. The motion was
carried unanimously by a showing of hands. McGahey then presented
a charter to the group as a new local of the Petitioner. Thereupon
Raines reassumed the chair, and officers were elected to represent the
employees and administer the contract.
The Petitioner contends that the foregoing events have given rise
,to such confusion and uncertainty with respect to the status of the
3 Raines testified that the letter of resignation was sent because he believed it was neces-
sary to do so in view of article 1, section 2 of the contract ( footnote 1, supra ) and that
later, on advice of counsel , he notified the Employer that this letter was sent under a mis-
taken Interpretation of that provision and that he had not resigned from the office. There
Is no evidence that either Raines or Robinson notified the Intervenor of their resignation.
4 This petition was returned by the Regional Office on the ground that It was defective
In form. The present petition was filed November 15.
6 This meeting was attended only by those who chose to remain loyal to the Intervenor,
and no others were notified thereof.
1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining representative at the Employer's plant as to warrant our
directing an election at this time under the "schism doctrine," as enun-
ciated in the Boston Machine case .6 We do not agree.
The record shows that, with the exception of the fact that
Raines called and opened the disaffiliation meeting and that he pre-
sided when the members voted to elect officers, McGahey was in charge
of the meeting throughout and directed the principal activity thereof,
namely the action to disaffiliate. It is therefore clear that by so doing,
McGahey, as representative of the Petitioner, actively assisted the dis-
sident employees in their efforts at disaffiliation.
Under similar circumstances, the Board has held that, where by
reason of the control by the Petitioner over the disaffiliation proceed-
ings, a vote is not taken at a meeting of the contracting union to dis-
affiliate from that union, there is no basis for the application of the
Board's schism doctrine.' The facts of the present case bring it within
this principle. Furthermore, it does not appear that the meeting in
question was held upon a notice which was adequate for purposes of
disaffiliation s Thus, although notice was given by word of mouth to
the 26 members present and to 3 others who were not able to attend,
the remaining members were not in any way notified of the time,
place, and purpose of the meeting.9 Accordingly, we find that the dis-
affiliation vote was not a valid expression of the desires of the mem-
bership.10 Although the facts 'herein indicate a disaffection in the
ranks of the Intervenor, it appears that the Intervenor still functions
and is ready, able, and willing to represent the employees and to ad-
minister the contract 11
Upon the basis of the foregoing and on the entire record in this
case, we conclude that the current contract between the Intervenor and
the Employer bars the determination of representatives at this time.
Accordingly, we shall dismiss the petition.
Order
IT Is HEREBY ORDERED that the petition herein be, and it hereby is,
dismissed.
MEMBERS HOUSTON and STYLES took no part in the consideration of
the above Decision and Order.
B Boston Machine Works, 89 NLRB 59.
7 See Boyle-Midway, Inc, 97 NLRB 895; General Electric Company, Operating Ditiision,
Lamp Department, 98 NLRB 134.
B See Lewittes and Sons, 96 NLRB 775.
0 The time, place, and purpose of the meeting were not posted. The evidence shows that
only those in favor of Petitioner were notified of the meeting.
30 See Lewittes and Sons, supra.
"In view of the above finding that no valid schism occurred , we find no merit in the
Petitioner's further contention that it is the successor of the Intervenor.