The Manufacturers' Protective & Development Assn.

National Labor Relations Board - Board Decisions

Aug 13, 1951

95 N.L.R.B. 1059 (N.L.R.B. 1951)

THE, MANUFACTURERS' PROTECTIVE & DEVELOPMENT ASSN. 1059
the parties a supplemental tally of ballots, including thereon the count
of the ballots described above.
MEMBERS MURDOCK and STYLES took no part in the above Supple-
mental Decision and Direction.
THE MANUFACTURERS' PROTECTIVE & DEVELOPMENT ASSN. (CONSOLI-
DATED IRON-STEEL MANUFACTURING COMPANY, TAYLOR AND B(IGGIS
DIVISION) 1 and INTERNATIONAL MOLDERS & FOUNDRY WORKERS
UNION OF NORTH AMERICA, AFL, PETITIONER
THE MANUFACTURERS' PRO'IT;CTIVE & DEVELOPMENT ASSN. ( BoR-
ROUGHS MANUFACTURING COMPANY) and INTERNATIONAL MOLDERS
& FOUNDRY WORKERS UNION OF NORTH AMERICA, AFL, PE'rI'rIONIF:R.
Cases Nos. 9-UA-1727 and 9-UA -1797. August 13, 1951.
Decision and Direction of Elections
Upon petitions duly filed under Section 9 (e) (1) of the Act, a
consolidated hearing was held before Seymour Goldstein, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Upon the entire record in the case, the Board finds as follows :
1. The Manufacturers' Protective & Development Assn., herein
called the Association, is engaged in commerce within the meaning of
the Act.
2. The Petitioner is the currently recognized collective bargaining
representative of the employees claimed in the petitions to constitute
units appropriate for the purposes of authorizing the Petitioner to
make union-security agreements.
3. The Petitioner has made an appropriate allegation and showing
that 30 percent or more of the employees in each of the claimed units
desire to authorize the Petitioner to make an agreement requiring
membership in the Petitioner as a condition of employment.
4. The appropriate units :
The Petitioner petitions for a union-security authorization election
among the employees of Consolidated Iron-Steel Manufacturing Com-
pany, Taylor and Boggis Division, herein called Taylor, and a similar
election among the employees of Borroughs Manufacturing Company,
herein called Borroughs. However, all parties requested dismissal
of the petitions on the ground that Taylor and Borrougls have each
joined the Association, that the employees of the Association' s nlenl-
' The Employer' s name appears as amended at the hearing.
95 NLRB No. 134.
961974-52-vol 95 68
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bers constitute the appropriate collective bargaining unit herein, that
such employees have previously authorized the Petitioner to'make a
union-security agreement, and that any further authorization elections
are' therefore unnecessary.
The Association is, and for many years has been, the collective bar-
gaining representative of its members, currently consisting of about
34 companies producing cooking and heating appliances. As the rep-
resentative of its members, the Association has recognized and con-
tracted with the Union for the production and maintenance employees
of its constituent companies since about 1891. The resultant contracts
are called "Conference Agreements." There are now about 6,000
employees covered by these agreements.
Pursuant to consent agreement, the Board conducted a union-secu-
rity authorization election in June 1948 among the production and
maintenance employees of the Association's then current membership .2
Certification of the requisite authorization, and a union-shop contract,
followed.
The current contract, continuing the union shop, was executed on
.January 1, 1951, to run for a year, with automatic annual renewals.
Its coverage was defined in article I, clause 1, in substance as all pro-
duction and maintenance employees of the "members of the Associa-
tion." It contains no express provisions relating to new association
members joining after January 1, 19513 The undisputed testimony
of the Association's secretary discloses, 'and we find, that when a new
company joins the Association, the Union first submits to the Asso-
ciation a certified list of its membership in that company, and if the
list shows that a majority of the company's employees are members
of the Union in good standing the Association immediately considers
the new company as covered by the Agreement.
Taylor- joined the Association in May -1950. It has recognized the
Union for about 30 years, and there are no conflicting claims..
Borroughs joined the Association at the same time as the current
contract was executed on January 1, 1951, according to the undisputed
2 The unit was "all employees in all such departments in the plants of the employer-
members of the Association ( as shown on the agreed payroll lists for each plant attached
to the petition )," with appropriate exclusions. There was no evidence that any
"departments" were not included.
8 The contract expressly excludes employees covered by contracts with other unions,
and also "the employees in any department in the plants of the members wherein the
department has not previously been covered by Conference Agreements ." The evidence
indicates , however, that there are no such employees.
Clause ( b) goes on to provide for the merger into the unit of a previously excluded
department (not Company ), as follows :
In the event a majority of the employees in any department not. previously covered
by a Conference Agreement desire the Union as their collective bargaining agent
and the Union submits to the Association a certified list of the employees in the
department desiring the Union as their bargaining agent, the employees in such
department shall be included henceforth in the bargaining unit and covered by the
Conference Agreements.
a>.
THE MANUFACTURERS' PROTECTIVE :,& DEVELOPMENT ASSN. 1061
testimony. It,recognizes the.Ul ion as the exclusive representative of
its employees as'the result--of'certification in-December 1950.
The record in this case discloses that tliere' has been a long history
of collective. bargaining with the Petitioner by the Association for
its members , excluding Taylor and Borroughs. However, the bar-
gaining history with respect to the latter two, employers on an Asso-
ciation -wide basis has been "exceedingly brief., Taylor's history has
been one of 30 years of individual employer bargaining and a year
of Association-wide bargaining. Borroughs has bargained with the
Petitioner on a separate employer basis for less than a year and .has;
been a member of the Association for a much shorter period of time.
Past Board decisions make it clear that where, as here, there has been
a very limited history of bargaining on a multiple-employer basis, if
representation petitions were_ filed by a union seeking separate elections
for the employees of Taylor and Borroughs, we would find single-em-
ployer voting groups appropriate and conduct the requested. elections.'
We are unaware of any valid reason for departing from these Board
precedents because the instant case involves a union-security :authori
zation election rather than a representation proceeding. On the con-
trary, we believe that wherever -feasible the same principles should
be applied to both types of proceedings.' Accordingly, we shall direct
separate union-security authorizatioli elections for the employees of .
Taylor and Borroughs e
Our dissenting colleagues assert that by so doing we are giving
these employees preferred treatment. We disagree. The short
answer to this assertion is that all employees of the other members of
the Association have been given an opportunity to vote on the question
of union security whereas the employees of Taylor and Borroughs have
not. Rather than giving the employees of Taylor and Borroughs pref-
erential treatment, it seems to us that the course which the dissent
suggests would give such preference to the employees of the other Asso-
ciation members, who would be in the position of having decided for
4 West Tacoma Newsprint Co., and Cellulose Engineers , Inc., 81 NLRB 961; see also
Jerry Fairbanks, Inc., 93 NLRB 898; Central Optical Company , et al., 88 NLRB 416;
Norcal Packing Company, 76 NLRB 254.
See Furniture Firms of Duluth, 81 NLRB 1318.
6 We disagree with our dissenting colleagues that the employees of Taylor and Borroughs
should be considered as accretions to the established unit. One of the principal charac-
teristics , of an accretion is that the employee involved could not constitute a separate
unit . However, the Board has , always held that the employees of an individual employer
are separately appropriate . Moreover , the untenability of the minority opinion's position
can be graphically illustrated by considering what the situation in the instant case would
be if the positions of the parties were reversed . Thus, if Taylor and Borroughs had the
long history of bargaining on an Association-wide basis and the bargaining history of
the other employers was principally on an individual employer basis, consistency with
the dissenting view would seem to require a finding that although the other Employers'
employees constituted a majority , they should not be granted separate elections because
they were accretions to the much smaller Association -wide unit. This is a result which
we do not believe our dissenting colleagues would desire to reach.
1062 . DECISIONS OF NATIONAL LABOR -RELATIONS BOARD
the employees of Taylor and Borroughs that .they are subject to a com-
pulsory union-security arrangement without the safeguard of an
election under Section 9 (e) (1). In our opinion the employees of
Taylor and Borroughs should be afforded the opportunity to express
their desires with regard to the issue of union security.'
The Petitioner made it clear that it, thought the' earlier association=
wide union-authorization election, conducted before Taylor and Bor-
roughs joined the Association, made it unnecessary to file the present
petitions. However, we do not construe this statement as a meritori-
tous request for the withdrawal of the petitions.
Accordingly, we find that the units appropriate for the purposes of
elections under Section 9 (e) (1) of the Act consist of all production
and maintenance employees of Taylor and Borroughs, respectively,
excluding clerical and sales employees, watchmen, -guards, professional
employees, and supervisors as defined in the Act.
[Text of Direction of Elections omitted from publication in this
volume.]
CHAIRMAN HERZOG and MEMBER MURDOCK , dissenting :
We cannot agree with our colleagues that elections should be ordered
in this case. It is undisputed that the appropriate collective bargain-
ing unit is the association-wide unit, consisting of the employees • of
all the companies belonging to the Association. In June 1948 these
employees voted at an appropriate election to authorize the Petitioner
to make a union-security agreement. The employees of any one of
the approximately 30 individual companies then belonging to the
Association may have voted to deny the Petitioner such authorization.,
But such a vote would have been of no significance , as we believe the
Board majority would agree,, because of the contrary desires of a.
majority of the employees 2Githin the broader appropriate unit. It is
not clear to us why the employees of Taylor, and those of Borroughs,
should now be considered as anything other than accretions to the
established unit, or why they should be accorded preferred treatment
4 we do not agree with our dissenting colleagues that either the Waterous Company case,
92 NLRB 76 , or the 'Douglas Aircraft Company, Inc., case, 92 NLRB 702, is an applicable
precedent for the Board ' s decision in the instant case. While it 'is true that in the
Waterous case a separate election was not granted for a previously unrepresented group
of employees the Petitioner in that case was seeking an election in the entire broader
appropriate unit and such an election was held. The dissenting opinion in this case
would not hold any election . In our opinion the situation in the present case is more
closely analogous to that in the Great Lakes Pipe Line Company case, 92 NLRB 583,
where the petitioner sought to add an unrepresented group of employees to its existing
broader unit and the Board conducted an election for those employees . With respect to,
the Douglas case, we believe , that it is clearly distinguishable from the Instant case.
The basis for the Board 's 'failure to hold an election in that case was that the petitioner
sought decertification of a group of planners who were not the only technical employees
represented by the union . No such issue is involved here.
THE MANUFACTURERS' PROTECTIVE'& D'EVELOPMENT ASSN. 1063
and allowed to defeat the application' to them of the union security
already authorized by a majority in the iinit.
We agree with the general•propositioir stated by the majority that
Congress intended that a union shop could not be :lawfully imposed
on employees until they had first properly authorized it by secret
ballot: But here such a secret ballot was taken in June 1948. If the
Board's long-established and congressionally approved doctrine of the
appropriateness of employer-association units is to continue, we see
no way to avoid the conclusion that a union shop has already been
approved by the June 1948 election. We believe it to be a sufficient
safeguard, wholly in accord with the intent of Congress, for the Board
to determine, as it does here,' that the employees in question have
become an integral part of the established unit.8 We further believe
.the Board should avoid splintering a special segment off from the
appropriate unit, with the possible result of allowing the employees
in that segment to defeat the union-security arrangement desired by
the majority and obtaining the benefits of union representation with-
out sharing the cost.
The Board majority -seems to us to substitute.^semantics for prece
dent in reaching a solution of this case. Although they do cite cases,
their citations are either wholly inapplicable, or support our view
rather than theirs. For example, the cases cited in footnote 4 direct
an election among a group of employees to assist the Board in de-
termining whether they should be included in or excluded from the
appropriate bargaining unit; 9 and the case cited in footnote 5 holds
that, once the unit appropriate for the purpose of collective bargaining
is conclusively determined, the same unit is normally also appropriate
for the purpose of union security. These cases exemplify general
principles, and we concur in them no less wholeheartedly than the
majority. But to us they prove that, on the facts in thia case, the
petitions should be dismissed because they involve units whichare not
appropriate for the purposes of collective bargaining or union se-
curity. Thus, the appropriate unit here is conceded by all parties to
be Association-wide, and it includes the employees of Taylor and
Borroughs at the present time. Moreover, the Petitioner is already
s See Waterous Company, 92 NLRB 76, where the Board ( with a dissent ) rejected a
contention that a new group should first be given a separate election before being merged
into the established appropriate unit, and instead directed an over-all election in the
enlarged unit, although the new group was thereby unable to give effect to its own
desires as to collective bargaining representation . See also Douglas Aircraft Company,
Inc., 92 NLRB 702, where the Board denied a similar new group a separate decertification
election; although from the beginning they had resisted being taken into the established
appropriate unit.
9To the same effect is the Great Lakes case cited . in•footnote 7. The other two cases
there cited , Waterous and Douglas, refuse to direct a separate self-determination election
among the small group of employees when the Board is satisfied , inthe circumstances
of a particular case, that only the more comprehensive unit is appropriate . That is the
situation here.
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
authorized to make a union-security agreement covering this unit,
within the meaning of Section, 8 (a) (3). We note that the Board
would be faced with a completely different question if the employees;
of Taylor and Borroughs had ,.filed decertification petitions tinder
Section 9 (c) (1) (A) (ii), or deauthorization petitions under Sec-
tion 9 (e) (2).
Because the Board determines the appropriate unit on the par-
ticular facts "in each case," as Section 9 (b) requires, we emphatically
disagree with our colleagues' so-called graphic illustration of the
alleged error of our view by pointing to a different set of circum-
stances. We agree that the assumed circumstances would change the
whole character of the unit.
The majority makes one other assertion which should not remain
unanswered. They argue that we would be giving preference to the
employees of old Association members if Taylor and Borroughs em-
ployees were subjected to a union shop without a separate election-
But that is merely a restatement of the common fact that any election,
whether political or otherwise, binds not only the losing voters but
also the newcomers to the unit.,
It follows that we would dismiss the petitions here, on the ground
that Congress did not intend to require further authorization elec-
tions merely because an accretion took place in an existing union-shop
unit.
ALLIED MATERIALS CORPORATION and INTERNATIONAL UNION, UNITED,
AUTOMOBILE , AIRCRAFT & AGRICULTURAL IMPLEMENT WORKERS OF
AMERICA (UAW-CIO). Case No. 7 CA-405. August 14, 1951
Decision and Order
On May 11, 1951, Trial Examiner Louis Plost issued his Interme-
diate Reports in the above-entitled proceedings, finding that the- Re-
spondent 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 Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report.
The Board 1 has reviewed the.rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed:
The rulings are hereby affirmed. The Board has considered the In-
1 Pursuant to the provisions of Section 3 (b) of the National Labor Relations 'Act, the
Board has delegated its powers in connection with this proceeding to a three -member -panel
[Members Houston , Reynolds , and Styles].
95 NLRB No. 142.