Waterway Terminals Corp.

National Labor Relations Board - Board Decisions

Jun 30, 1958

120 N.L.R.B. 1788 (N.L.R.B. 1958)

1788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
taken to have indicated their desire to constitute a separate appro-
priate unit, and the Regional Director conducting the election is
hereby instructed to issue a certification of representatives for such
separate unit, which the Board, in the circumstances, finds to be
appropriate.
[Text of Direction of Elections omitted from publication.]
Waterway Terminals Corporation , Petitioner and United Pack-
inghouse Workers of America, Local No. 591 , AFL-CIO. Case
No. 15-PM-110. June 30,1958
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Fred A. Lewis, 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
Net.
2. The labor organization involved herein claims to represent the
employees of the Employer.
3. The Employer and the International Longshoremen's and Ware-
housemen's Union, Local 207, hereafter referred to as Local 207, en-
tered into a contract on March 12, 1957, effective from October 1, 1956,
until September 30, 1959. Thereafter, on January 1, 1958, the United
Packinghouse Workers of America, AFL-CIO, hereafter referred to
as the Union, requested recognition from the Employer as the succes-
sor and assignee to the rights of the bargaining agent under the above-
mentioned contract. The Employer declined to recognize the Union
and filed the instant petition. The Union alleges the contract as a
bar to a present determination of representatives.
The Employer bases its refusal to recognize the Union on the fol-
lowing grounds :
(1) The alleged assignment was not made in accordance with the
bylaws of the International Longshoremen's and Warehousemen's
Union, Local 207.
(2) The contract cannot serve as a bar even if validly assigned
since at the time of the alleged assignment the Union was not in
compliance.
(3) The contract cannot serve as a bar even if validly assigned as
it contains an illegal union-security clause.
120 NLRB No. 224.
WATERWAY TERMINALS CORPORATION 1789
Local 207, an amalgamated Local,' had been considering a change'
of affiliation for several months and, with the consent of ILWU, Local
207 changed its affiliation to UPWA and its local number to 591. The
testimony reveals that the action taken by Local 207 was not schis
matic, but that the assignment to Local 591, UPWA, on November
4, 1957, was a complete transfer of its collective-bargaining contracts,
"including obligations and benefits in, under, and to," and "all the
rights in and to the check off dues of members of the units involved
herein. . . ." The current officers of Local 207 became the officers of
Local 591. According to the local president, Local 207 went out of
existence when the "merger" was completed.2
The Petitioner contends that the meeting at which the disaffiliation
action was taken was not called by sending a notice to each member
and advising them of the purpose of the meeting as required by the
bylaws. The record reveals that notice of the special membership
meeting was posted at the various operations and stated that its pur-
pose was to meet with officials of ILWU and UPWA. The Employer
testified that only 12 of its approximately 70 employees were present
at this meeting, and that several of its employees have requested can-
cellation of dues checkoff authorizations.
The Board has held that in representation proceedings whether or
not the membership meeting is called in conformity with the Union's
constitutional requirements or whether or not the assignment of con-
tracts or assets are proper, is no concern of the Board 3 Accordingly,
we find no merit to this contention. Local 591, UPWA, which has the
same officers as were elected in Local 207, ILWU, has succeeded to the
previously existing status of Local 207, ILWU, as the bargaining
representative of the Petitioner's employees. The record here shows
that the affiliation with UPWA has had no effect upon the structure,
functions, or membership of the Local Union. The only change in
the status of the Local Union appears to be one of designation and
affiliation 4
We next consider the Employer's second contention. Section 8 (a)
(3) of the Act, as amended, permits an employer and a labor organi-
zation to execute a union-shop agreement if, among other things, the
labor organization "has at the time the agreement was made or within
the preceding twelve months received from the Board a notice of
compliance with Section 9 (f), (g), and (h)...." The Board has
1 Employees of six employers are members of this Local.
2 Although the minutes of Local 207 show that UPWA contemplated Local 207 merging
with the existing Local 591, the president stated that the incumbent members of Local
591 moved Into another Local when Local 207 became Local 591.
S R. C. Williams & Company . In.e.. 107 NLRB 933. Radionic Products Division, 91
NLRB 595. (Board found disaffiliation action amounted to a schism and directed an
election.)
4 R. C. Williams & Company, Inc ., supra; The Prudential Insurance Company of Amer-
ica, 106 NLRB 237; and Charles Beck Machine Corporation , 107 NLRB 874.
1790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
interpreted this provision of the Act to require compliance of the
'contracting union at the time the union-shop agreement became ef-
fective,5 or had received a notice of compliance within the 12-month
period preceding the renewal or execution of the contract.' Consistent
therewith, it has held that a union which obtains a union-shop contract
by assignment through a newly affiliated local must meet, at the time
of the affiliation, the same compliance requirements as the contracting
union is required to meet.'
The administrative records of the Board show that Local 591,
UPWA, although out of compliance from January 1, 1957, through
February 26, 1957, received a notice of compliance on February 27,
1957. Thus, at the time of the merger, it had received notice of com-
pliance within the 12-month period preceding the merger.'
The third contention of the Petitioner is that the following union-
security provision is illegal. Article I, section 2 (b) of the agreement
between Local 207, ILWU, and the Petitioner, reads as follows :
Present employees shall be required to be, and remain, members
of the Union in good standing as a condition of employment. New
employees shall become members thirty (30) days after hiring,
and shall maintain their membership in good standing for the
duration of this contract, employees will be checked in according
to their seniority.
The Board certified Local 207 as authorized to make union-security
agreements as set forth in Section 8 (a) (3) of the Act, on July 25,
1950.9 The record does not disclose the contents of the agreement
with respect to the union-security clauses between that date and the
present contract. However, the Board has determined that the pro-
visions of 8 (a) (3) does not require that a 30-day grace period be
accorded present employees who are members of the Union, but is
applicable only to nonmembers on the effective date of the contract
and to new employees hired thereafter.
As for the employees, if any, who were not members of the Union
when the contract became effective, there is no indication that any
employee in that position was required to become a member in viola-
tion of the Act, or that there was discrimination against any such
employee under the contract. In these circumstances, we find that
the contract's failure to provide specifically for the statutory grace
period for employees who were not members of the Union on the
6 Hughes - Vertin Lime Company, 104 NLRB 185.
Williams Laundry Company , 97 NLRB 995, 997.
7 Independent Manufacturing Company, 113 NLRB 937.
° Sylvania Electric Products , Inc., 100 NLRB 357, footnote 1.
° The Board has taken cognizance ' of its administrative records
MESTA MACHINE COMPANY 1791
effective date of the contract does not operate to invalidate the agree-
ment for contract-bar purposes.io
In view of the above, we find that the contract serves as a bar to
the present petition, and shall dismiss the petition filed herein.
[The Board dismissed the petition.]
MEMBERS RODGERS and JENKINS took no part in the consideration
of the above Decision and Order.
10 Whyte Manufacturing Company, Inc., 109 NLRB 1125, at 1127 ; A. Sandler Co., 110
NLRB 738; Milwaukee Gas Light Company, 111 NLRB 837; C. G. Willis, Inc., 119 NLRB
1677. See also Steel Products Engineering Company, etc., 116 NLRB 811 at 814. See
also Supreme Sunrise Food Exchange , Inc., 105 NLRB 918, wherein the Board enunciated
rules for the construction contracts , including the rule that contracts will be construed,
if possible , so that their provisions are valid rather than invalid.
Mesta Machine Company and International Molders and Foun-
dry Workers Union of North America, AFL-CIO, Petitioner
Mesta Machine Company and International Brotherhood of Elec-
trical Workers , AFL-CIO, Petitioner. Cases Nos. 6-RC-2068
and 6-RC-2075. June 30,1958
DECISION, DIRECTION OF ELECTION, AND ORDER
Upon separate petitions duly filed under Section 9 (c) of the Na-
tional Labor Relations Act, a consolidated hearing was held before
W. G. Stuart Sherman, hearing officer. The hearing officer's rulings
made at the hearing are free from prejudicial error and are hereby
affirmed.
Pursuant to the provisions in Section 3 (b) of the Act, the Board
had delegated its power in connection with these cases to a three-
member panel [Members Rodgers, Bean, and Fanning].
Upon the entire record in these cases, 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 em-
ployees of the Employer.
3. A 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.
4. The Petitioner in Case No. 6-RC-2068, International Molders
and Foundry Workers Union of North America, AFL-CIO, herein
called the Molders, seeks to represent a unit composed of all foundry
employees. The Petitioner in Case No. 6-RC-2075, International
Brotherhood of Electrical Workers, AFL-CIO, herein called the
120 NLRB No. 217.