National Waste Material Corp.

National Labor Relations Board - Board Decisions

Feb 27, 1951

93 N.L.R.B. 477 (N.L.R.B. 1951)

NATIONAL WASTE MATERIAL CORP. 477
The decision of our colleagues condemns the statements in the
Employer's letter, first by implying a meaning that is not expressly
stated, and then by finding that the quotation, having said so much, did
not say enough. We would not thus impute a latent significance to
the Employer's statements, without first affording it full opportunity
to present evidence that might bear upon their proper interpretation.
As the Employer's remarks were not patently coercive, and especially
as the Employer has offered evidence that may have a bearing on their,
significance, we would remand this case for a further hearing. There'
the Employer and all other parties would be given an opportunity tov
present evidence relating to the circumstances referred to in the quoted
language from the August 8 letter, the extent to which the employees
were aware of these matters, and any other pertinent evidence that
might assist the Board in appraising correctly the significance of these
statements to the employees. Perhaps that evidence would prove our
colleagues' conclusion correct. But perhaps it would not. There-
fore, in the absence of a hearing, we would not now find sufficient
cause in these remarks to justify setting aside the election.
NATIONAL WASTE MATERIAL CORP., PETITIONER and TEXTILE WORKERS
OF AMERICA , CIO. Case No. 14-RM-40. February L7, 1951
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Milton O. Talent,
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-mem-
ber panel 1 [Members Houston, 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 certain em-
ployees of the Employer.
3. The Union moves to dismiss the petition on the ground that a
certain informal settlement agreement and card check, discussed be-
low, bar this proceeding. The Employer takes a contrary position,
contending that whatever right to recognition the settlement agree-
ment and card check conferred upon the Union was subsequently,
1 As the record and the brief of the Employer adequately present the issues, and posi-
tions of the parties , the Employer ' s request for oral argument is denied.
93 NLRB No. 71.
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
terminated when the Union lost its majority status as a result of the
strike it had called.
On August 17, 1950, the Employer and the Union, with the Region-
al Director's approval, entered into to informal agreement in settle-
ment of the charge previously filed by the Union against the Em-
ployer (Case No. 14-CA-523), wherein, among other things, the Em-
ployer agreed to bargain collectively upon request with the Union
as the exclusive representative of its employees. It was further pro-
vided in this agreement that the charge would be withdrawn upon
the Employer's compliance with the settlement agreement. In con-
junction with this settlement, the parties also entered into a stipula-
tion for a cross check of the Union's authorization cards against the
Employer's payroll for the purpose of determining the Union's major-
ity status. Following the cross check, the Employer recognized the
Union as the exclusive bargaining representative of its employees
and, for all that appears, negotiated in good faith to an impasse. To
enforce its demands the Union called a strike of the entire working
force. Thereupon, the- Employer permanently replaced all the
strikers and resumed operations. A later request for reinstatement
of the strikers was denied by the Employer, as was the Union's request
to revive negotiations because of the Union's asserted loss of majority
status. Thereafter, the Union sought to reopen the complaint case on
the ground that the Employer refused to bargain in accordance with
the settlement agreement. The Regional Director declined to do so
and the case was marked closed by adjustment. No other charge has
been filed by the Union against the Employer.
From the foregoing, it is clear that a question concerning represen-
tation exists which we find can best be resolved by a Board election.
By engaging in the strike, the employees assumed the role of economic
strikers 2 whom the Employer was privileged to replace permanent-
ly in order to conduct its business. In these altered circumstances,
we find that the Employer was justified in questioning the Union's
majority status which was put in doubt by the Union's own acts. 3
The Union, however, urges in effect that the results of the card
check and the settlement agreement were the equivalent of the certi-
fication based on a Board election and that therefore the Employer
should not be permitted to challenge its majority status for at least
1 year. But we have heretofore held that a card check is not entitled
to the conclusive effect normally given to a certification of representa-
tives based on a Board-directed election.4 Nor do we find any per-
2 This is the net effect of the Regional Director ' s refusal to reopen Case No 14-CA-523
and to issue a complaint therein, which determination the Board is powerless to disturb.
Times Square Stores Corporation , 79 NLRB 361.
8 Cf. N L. R B. v . Fansteel Metallurgical Coi p , 306 U. S 240 , 261-262
4 Joe Hearin, Lumber, 66 NLRB 1276 , 68 NLRB 150 ; cf. Arrow, Hart & Hegeman Elec-
trw Company, Inc., 77 NLRB 258. Nor is there any statutory bar under Section 9 ( c) (3).
DISMUKE TIRE AND RUBBER COMPANY, INC. 479
suasive reason for denying the Employer the right to test in a secret
election the Union's asserted majority status where, as here, it appears
that the Employer has performed its obligation under the settlement
agreement and whatever loss of majority subsequently suffered by
the Union is attributable solely to its own conduct in striking and
the lawful action of the Employer in permanently replacing the
strikers.5
Accordingly, we find, contrary to the Union's contentions, that a
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. We shall therefore deny the
Union's motion to dismiss.
4. In accordance with the stipulation of the parties, we find that
the following employees of the Employer constitute a unit appropri-
ate for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act :
All production and maintenance employees at the Employer's St.
Louis, Missouri, plant, excluding general office, clerical, and profes-
sional employees, guards, and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication in this
volume.]
8 we leave open the question of whether the petition would be timely , if the bargaining,
pursuant to the settlement agreement had not progressed to a good faith impasse.
DISMUKE TIRE AND RUBBER COMPANY , INC. and UNITED RUBBER CORK,
LINOLEUM AND PLASTIC WORKERS OF AMERICA, CIO. Case No.
32-CA104. February 28, 1951
Decision and Order
On October 27, 1950, Trial Examiner Allen MacCullen issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a supporting brief.
The Board 1 has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Intermediate Report,
the exceptions and brief, and the entire record in the case, and hereby
'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 [ Members Houston , Reynolds,
and Styles].
93 NLRB No. 83.