Alto Plastics Manufacturing Corp.

National Labor Relations Board - Board Decisions

Apr 4, 1962

136 N.L.R.B. 850 (N.L.R.B. 1962)

850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT cause or attempt to cause Colonial Sand & Stone Co, or any
other member of Harbor Carriers of the Port of New York, to discriminate
against employees in violation of Section 8(a) (3) of the National Labor Rela-
tions Act.
WE WILL NOT in any like or related manner restrain or coerce employees of
members of Harbor Carriers of the Port of New York in the exercise of their
rights to self-organization , to form, join, or assist any union, to bargain collec-
tively through representatives of their own choosing, to engage in concerted
activities for the purpose of collective bargaining or other mutual aid or protec-
tion, or to refrain from any or all such activities, except to the extent that such
rights may be affected by a lawful agreement requiring membership in a union,
as authorized in Section 8(a) (3) of the National Labor Relations Act, as modi-
fied by the Labor-Management Reporting and Disclosure Act of 1959.
WE WILL make whole Hussein Elgahim for any loss of pay he may have suf-
fered because of our discriminatory action against him.
DECK Scow CAPTAINS LOCAL 335, UNITED MARINE
DIVISION, NATIONAL MARITIME UNION, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Alto Plastics Manufacturing Corporation i and Industrial Work-
ers Federation of Labor, Local 886, Petitioner . Case No. 21-RC-
6819. April 4, 1962
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 Louis A. Gordon, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed 2
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 em-
ployees of the Employer 4 At the hearing, the Intervenor alleged that
the Petitioner is a "paper union" under the domination of its presi-
dent and "consultant," that its contracts are "sweetheart contracts"
which deprive employees of the benefits of collective bargaining, and
that the Petitioner is not a labor organization within the meaning of
the Act.' In order to pursue these matters, the Intervenor applied
The Employer's name appears as amended at the hearing.
The hearing officer 's ruling revoking the subpena issued at the request of the Inter-
venor is discussed under paragraph 2, infra
3 As the record and briefs adequately present the issues and positions of the parties,
the Intervenor 's request for oral argument is denied
4 Local 976, International Union Allied Industrial Workers of America, AFL-CIO, was
permitted to intervene on the basis of its existing certification.
5 Section 2(5) of the Act defines the term "labor organization" as follows:
The term "labor organization" means any organization of any kind, or any agency or
employee representation committee or plan, in which employees participate and which
136 NLRB No. 70.
ALTO PLASTICS MANUFACTURING CORPORATION 851
for a subpoena duces tecum directing the Petitioner's president to pro-
duce certain records and documents.' The hearing officer granted the
request for the subpena but subsequently granted the Petitioner's
motion to revoke the subpena on the ground that the evidence called
for was not relevant or material to the issue of the Petitioner's status
as a labor organization. The Intervenor excepted to the hearing
officer's ruling and urges that it was thereby precluded from estab-
lishing that the Petitioner was in fact a "corrupt" union. Reduced to
its simplest terms, the Intervenor's ultimate position is that the Board
should withhold its processes from the Petitioner because it is a
"corrupt" labor union and because such an organization is not a labor
organization within the meaning of the Act. The request implicit in
the contention is appealing. However, we find no warrant in the
statutory scheme to authorize such action.
Under Section 9(c) (1) (A) of the National Labor Relations Act,
as amended, a labor organization acting in behalf of a group of em-
ployees may file a petition requesting an election. If the Petitioner
herein qualifies as a "labor organization," then clearly the Board may
not refuse to process its petition. For, it must be remembered that,
initially, the Board merely provides the machinery whereby the desires
of the employees may be ascertained, and the employees may select a
"good" labor organization, a "bad" labor organization, or no labor
organization, it being presupposed that employees will intelligently
exercise their right to select their bargaining representative. In order
to be a labor organization under Section 2(5) of the Act, two things
are required : first, it must be an organization in which employees
participate; and second, it must exist for the purpose, in whole or in
part, of dealing with employers concerning wages, hours, and other
terms and conditions of employment. If an organization fulfills these
two requirements, the fact that it is an ineffectual representative, that
its contracts do not secure the same gains that other employees in the
area enjoy, that certain of its officers or representatives may have
exists for the purpose, in whole or in part , of dealing with employers concerning
grievances , labor disputes , wages , rates of pay, hours of employment , or conditions
of work.
°The items whose production was required by the subpena were: (1) the Petitioner's
constitution and bylaws; (2) a copy of the LMI-1 and LM-2 reports filed by the Peti-
tioner pursuant to title II of the Labor-Management Reporting and Disclosure Act of
1959, hereinafter sometimes called the LMRDA; (3) signed copies of all the collective-
bargaining agreements entered into by the Petitioner since its formation ; (4) the bond-
ing agreement required under title V of the Labor-Management Reporting and Disclosure
Act of 1959 covering the Petitioner 's officers , agents, and representatives; (5) the
minutes of all the Petitioner 's regular , special, and executive board meetings in 1960
and 1961 ; ( 6) all documents , including ballots, pertaining to the elections of officers
since December 1959 ; (7) all the correspondence of Anthony J. Doria, Petitioner's "con-
sultant, " since December 1959 ; ( 8) all documents, including checks, check - stubs, and
vouchers, concerning payments to and from Anthony J Doria since December 1959;
(9) copies of all grievances filed on behalf of employees by the Petitioner since December
1959.
641795-63-vol. 136-55
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
criminal records, that there are betrayals of the trust and confidence
of the membership, or that its funds are stolen or misused, cannot
affect the conclusion which the Act then compels us to reach, namely,
that the organization is a labor organization within the meaning of
the Act.
The testimony reveals that the Petitioner has a set of bylaws which
have been adopted by the general membership of the Union; that
these bylaws provide for : (1) elections of officers, stewards, and
trustees, by secret ballot; (2) the right to vote on all matters of im-
portance, which vote is final and binding on the Union; and (3) two
general membership meetings a year and three or four plant member-
ship meetings a year. The record further shows that, as of the time of
the hearing in February 1961, the last general membership meeting
was held in September 1960, and the last election was held in March
1960; that there were two plant membership meetings held during
the week preceding the hearing; that the Petitioner has collective
bargaining contracts with at least five employers; and that the Pe-
titioner has processed grievances for employees? Accordingly, we
find that the Petitioner is a labor organization within the meaning
of the Act 8
The Intervenor's arguments, however, raise some very serious and
fundamental issues relating to congressional intent, statutory admin-
istration, and Board authority and policy, with respect to which we
feel we should comment.
We are acutely aware that testimony delivered before a number of
congressional committees during the past 15 years, and most recently
before the Senate Select Committee on Improper Activities in the
Labor or Management Field (popularly known as the McClellan
committee), has brought to light the extent to which some individuals
with highly dubious records and connections, and in some cases with
the acquiescence or help of employers, have insidiously infiltrated, and
gained control over, certain segments of the American labor move-
ment for their own personal gain.' We are greatly concerned about
the abuses to which some employees have thus been subjected.
In this connection, we are familiar with the findings of the McClel-
lan committee concerning Anthony Doria, "consultant" to the Peti-
tioner herein, who was called before that committee to account for
his prior conduct in the discharge of his functions as a union officer.
7 In addition , we take official notice of the fact that since 1958, the Petitioner has
been certified by the Board as the bargaining representative of employees in at least
10 cases, and has filed unfair labor practice charges in at least 1 case.
s Imperial Reed & Rattan Furniture Co., 117 NLRB 495; Terminal System, Inc, et al,
127 NLRB 979 ; Inyo Lumber Company, 129 NLRB 79 ; Jat Transportation Corp , et al.,
128 NLRB 780, 782
6 See Report of the Select Committee on Improper Practices in the Labor or Manage-
ment Field , 85th Cong , 2d sess ., S. Rept 1417 , p. 621 ; 86th Cong , 2d sess , S Rept. 1139,
pts. 1-4.
ALTO PLASTICS MANUFACTURING CORPORATION 853
The committee found that Doria "seriously misused his position;
defrauded the union's membership, and played a key role in the infil-
tration of gangsters and racketeers into that union." io
It must be remembered, however, that the Board administers a
statute, and is duty bound to concern itself solely with those matters
which are within the scope of the statute, and to exercise only those
powers which Congress invested in the Board. We believe that the
matters alleged by the Intervenor in support of its contention are out-
side the Board's statutory competence and that the Board is therefore
without power under the Act to remedy them."
The allegations made by the Intervenor, which it sought to prove
through the records and documents it had subpenaed, concern im-
proper or corrupt practices in the administration of internal union
affairs. In titles I through VI of the Labor-Management Reporting
and Disclosure Act of 1959, Congress expressly dealt with such mat-
ters. It is particularly significant that the remedies provided in the
LMRDA were given to individual employees directly, and to the
public through the intervention of the Secretary of Labor or the
Department of Justice. The theory underlying this type of remedial
legislation is not to "illegalize" the organization itself, but to afford
protection to all parties concerned by creating specific Federal rights
and remedies whereby the activities of the organization and its officers
and agents are regulated and subjected to judicial review in the vindi-
cation of those rights. Had Congress desired to strike directly at the
organization itself, Congress would have said so."
Moreover, in Leedom v. International Union of Mine, Mill and
Smelter Workers, 352 U.S. 145, the Supreme Court held that the Board
did not have any implied power to withhold its processes from a union
as a remedy for the filing of a false non-Communist affidavit by the
union's president under Section 9(h) of the Act, as the only remedy
for a violation of that section was the one provided in the Criminal
Code. We believe the same rationale is applicable in the instant case.
Congress provided certain remedies in the LMRDA for parties ag-
grieved as a result of unlawful activities in the conduct of internal
union affairs. It would be manifestly improper for the Board to
fashion a remedy under the National Labor Relations Act which
Congress did not see fit to authorize. There is not the slightest indi-
cation in the LMRDA that Congress intended to place the regulation
" Interim Report of the Select Committee on Improper Activities in the Labor or
Management Field, Rept . No 1417, p. 221.
n Cf. Nassau and Su f olk Contractors ' Association, Inc., etc, 118 NLRB 174, 175-176,
185-186
12 Cf. Subversive Activities Control Act of 1950 ( 64 Stat . 987, 50 U S C . § 781-98), as
amended by the Communist Control Act of 1954 ( 68 Stat. 775 , 50 U S.C . § 781-93 ), under
which a labor organization found to be Communist controlled is ineligible to represent
employees or file charges under the National Labor Relations Act, as amended
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of internal union affairs within the Board's province. Nor did Con-
gress, in amending the Act, seek to amend it in this respect. On the
contrary, Section 603(b) of the LMRDA provides: ". . . nor shall
anything contained in [titles I through VI] . . . of this Act be con-
strued to confer any rights, privileges, immunities, or defenses upon
employers, or to impair or otherwise affect the rights of any person 13
under the National Labor Relations Act, as amended." 14 [Emphasis
supplied.] Thus Congress gave very explicit expression in the law
to its intent that the Board should not withhold its procedures or rem-
edies where unions or employers, or their officers or agents, breached
the obligations laid down in titles I through VI of the LMRDA.
However, the Board has, on occasion, revoked the certification of a
union where it has been shown that the union was not meeting its
responsibilities under its certificate as the exclusive bargaining repre-
sentative. In such cases, the Board has proceeded on the theory
that, having issued a certification under Section 9 of the Act, the
Board has the power to police and revoke the certification upon good
cause shown. Accordingly, in the event the Petitioner should be
certified as a result of this election involving employees, and fails to
fulfill its statutory obligations as their exclusive bargaining repre-
sentative, the Board could and would entertain a motion to revoke
the certificate.'-'
3. A question affecting commerce exists concerning the representa-
tion of certain employees of the Employer, within the meaning of
Section 9(c) (1) and Section 2(6) and (7) of the Act.
4. The parties agree generally that a production and maintenance
unit is appropriate but disagree as to the unit placement of a ware-
houseman, inspectors, and leadwomen.
The warehouseman unloads and stores materials, moves materials
between the warehouse and the production buildings, which are in
close proximity, and otherwise performs the customary duties of his
classification. He works the same hours and enjoys the same benefits
as the production employees.
The inspectors check the quality of the Employer's product and
report any defects or substandard work to the chief inspector. They
are selected from the production force and must have at least 1 year of
experience. They likewise receive the same wages and benefits as the
is "Person " as defined in Section 3(d) of the LMRDA Includes a labor organization.
14 We note, also, that a review of the legislative history of the LMRDA reveals a
conscious rejection by Congress of proposals [ S 748, S . 505, S . 1137; H R 7262, e.g.]
which, in effect , would have denied Board access to certain individuals or unions in viola-
tion of provisions in titles I to VI See also Legislative History of the Labor-Management
Reporting and Disclosure Act of 1959 , pp 405 , 408 467-468 , 1282-1283
35 Larus & Brother Company, Inc., 62 NLRB 1075 ; The Coleman Company, Inc, 101
NLRB 120; Hughes Tool Company , 104 NLRB 318 ; Pittsburgh Plate Class Company,
111 NLRB 1210; Plant City Welding and Tank Company , 118 NLRB 280 , 282; A. 0.
Smith Corporation , 119 NLRB 621, 622
CARPENTERS DISTRICT COUNCIL OF ST. LOUIS, AFL-CIO 855
production workers. The inspectors do not appear to possess any
supervisory authority.
The leadwomen are under the production supervisor : 3 leadwomen
in assembly each direct the work of 30 to 45 employees at 6 or 7 ma-
chines; a leadwoman in salvage directs 8 to 15 employees; a lead-
woman in packaging directs 9 employees; and a head leadwoman
supervises these 5 leadwomen. The leadwomen, who perform no pro-
duction work, are responsible for proper job performance, assign
work, adjust minor grievances, report rule infractions, recommend dis-
cipline, evaluate the work performance of employees on rating forms
which affect promotions, and have been told by the Employer that
they are supervisors. The recommendation of the head leadwoman as
to discharge is given weight and has been followed. Under the chief
inspector, a leadwoman, who does no inspection work herself, is in
charge of 13 to 14 inspectors. She assigns and transfers them, and
makes out the same rating forms as the other leadwomen.
As the interests of the warehouseman and the inspectors are closely
allied with those of the production employees, we shall include them
in the unit.1B We find however that the leadwomen are supervisors
and we exclude them from the unit. As the record is insufficient to
resolve the supervisory status of the warehouse leadman and the lead-
man mechanic, we shall permit them to vote subject to challenge. As
the Employer has no truckdrivers, we do not pass on their unit
placement.
Accordingly, we find that the following employees of the Employer
constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All production and maintenance employees of the Employer at its
plant at East Seventh Street, Los Angeles, California, including the
warehouse employee, inspectors, and floorladies, but excluding the
superintendent, assistant superintendent, maintenance supervisor,
production supervisor, chief inspector, leadwomen, the head lead-
woman, and all other supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
16 Kentucky Rural Electric Cooperative Corporation, 127 NLRB 887 , 889 (warehouse-
man) ; Hevi Duty Electric Company, 115 NLRB 798 ( inspectors).
Carpenters District Council of St. Louis, AFL-CIO and Vesta-
glas, Inc. Case No. 14-CP-19. April 6, 1962
DECISION AND ORDER
On December 19,1961, Trial Examiner Horace A. Ruckel issued his
Intermediate Report in the above-entitled proceeding, finding that
136 NLRB No. 78.