General Electric Co.

National Labor Relations Board - Board Decisions

Oct 31, 1968

173 N.L.R.B. 511 (N.L.R.B. 1968)

GENERAL ELECTRIC CO. 511
General Electric Company and International Union,
United Automobile , Aerospace and Agricultural
Implement Workers of America (UAW), Peti-
tioner . Case 28-RC-1748
October 31, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held on May 27 and 28, 1968, before
Paul E. Weil, Hearing Officer of the National Labor
Relations Board. Thereafter, all the parties filed briefs
with the Board.
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.
The Hearing Officer's rulings made at the hearing
are free from prejudicial error and are hereby af-
firmed.
Upon the entire record in this case including the
briefs filed by all the parties, the Board finds:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The Petitioner and Intervenor are labor organi-
zations which claim to represent certain employees of
the Employer.'
3. No question affecting commerce exists con-
cerning the representation of employees of the
Employer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
The Petitioner filed this petition January 19, 1968,
seeking an election in a unit of production and
maintenance employees at the Employer's jet engine
parts manufacturing plant at Albuquerque, New
Mexico. The Employer and Intervenor moved to
dismiss the petition on the ground that it is barred by
their collective-bargaining agreement signed August 1,
1967, effective from December 1, 1967, until Novem-
ber 30, 1969, covering the employees in question.
The American Car and Foundry Company formerly
occupied most of this plant where it was engaged,
under contract with the Atomic Energy Commission,
in the fabrication of parts for weapon systems. It
employed approximately 2,400 employees, 1,100 of
whom were production and maintenance employees
who have been represented, under successive collec-
tive-bargaining agreements, by the Intervenor since it
was certified by the Board in 1956. The most recent
agreement was effective from July 18, 1965, until
July 20, 1968. A separate portion of the plant was
occupied by Dow Chemical Company.
The Atomic Energy Commission decided on De-
cember 8, 1966, to phase out its contract and began
searching for a firm interested in using the facilities
and also the employee complement in order to
minimize any dislocation or hardship within the
community as a result of the phase-out.
The Employer, at its Evendale, Ohio, plant was
engaged in, among other things, the manufacture of
jet engines under contract with the U.S. Air Force,
for which it needed additional manufacturing capaci-
ty. The Petitioner was certified as the collective-bar-
gaining representative of the employees at the Em-
ployer's Evendale plant on November 4, 1949, and,
with its Local 647, has been the contract represent-
ative of such employees since that time.
On March 26, 1967, the Atomic Energy Com-
mission , American Car, the Air Force, and the
Employer agreed that the American Car phase-out
would be completed on December 1, 1967, at which
time the Air Force would take over the plant and
contract with the Employer to use the facilities in the
manufacture of jet aircraft engine parts for the Air
Force. Thereafter, as the Commission's work was
phased out, the Employer subcontracted some of its
Air Force work to be performed by American Car at
the Albuquerque facility.
Early in May 1967, the Intervenor called upon the
Employer to recognize it as the collective-bargaining
agent of the Albuquerque employees. On May 22,
1967, the Employer granted recognition, and negoti-
ations for a new collective-bargaining agreement
ensued.
While negotiations between the Employer and the
Intervenor were being conducted, the Petitioner
learned that some of the Employer's Evendale, Ohio,
work was to be transferred to Albuquerque, and, on
June 8, 1967, requested the Employer to bargain
concerning the transfer of such work . Beginning on
June 14, 1967, and on several subsequent occasions
until July 3, meetings were held by the Petitioner, its
Local 647, and the Employer at which time the
parties discussed the transfer of work from Evendale
to Albuquerque.
On July 6, 1967, the Petitioner filed a petition
(Case 9-AC-11) to amend its certification for the
Evendale plant to include the Albuquerque em-
ployees, and a charge (Case 9-CA-4333) alleging
violations of Section 8(a)(2) and (5) by the Employer
for bargaining with the Intervenor at Albuquerque
before any employees were hired, and refusing to
bargain in good faith with the Petitioner.
As indicated above, the Employer and the Inter-
venor, on August 1, 1967, entered into a collective-
1 International Association of Machinists and Aerospace Workers of
America, AFL-CIO, Local Lodge 794, herein called the Intervenor,
173 NLRB No. 83
intervened on the basis of its contracts covering the employees involved.
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining agreement covering the Albuquerque em-
ployees, to be effective from December 1, 1967, until
November 30, 1969. On August 14, 1967, the
Petitioner filed 8(a)(1) and (2) charges (Case 28-
CA-1568) against the Employer. On December 1,
1967, the Employer took over that portion of the
Albuquerque plant operated by American Car, and
the 173 production and maintenance employees
remaining on its payroll, all of whom were engaged, at
that time, in manufacturing jet engine parts for the
Air Force under the American Car subcontract with
the Employer. Dow Chemical took over the work
remaining under American Car's contract with the
Atomic Energy Commission, and the portion of the
plant occupied by Dow was sealed off. On December
4, 1967, the Petitioner withdrew the charges in Case
9-CA-4333 and the petition in Case 9-AC-11. On
January 11, 1968, the Regional Director issued a
complaint in Case 28-CA-1568, and on March 5,
1968, the Acting Regional Director consolidated that
case with Case 28-CA-1654, in which charges had
also been filed by the Petitioner, and issued an
amended complaint alleging that the Employer un-
lawfully assisted the Intervenor by recognizing and
entering into a contract with it at a time when the
Intervenor was not the majority representative of the
Albuquerque employees, before a representative
complement had been hired, and when the Petitioner
herein was claiming representation. The Petitioner
filed the petition herein on January 19, 1968, and on
April 29, 1968, the Regional Director approved the
withdrawal of charges, and dismissed the complaint,
in Cases 28-CA-1568 and 1654.
The Petitioner contends that the August 1, 1967,
agreement between the Employer and the Intervenor
cannot constitute a bar because the Employer had no
employees at the time the contract was executed, the
parties had notice of the Petitioner's claim to re-
present the employees before the contract was signed,
and because a settlement agreement entered into by
the Employer and the Intervenor on the same day
contains a dues-checkoff provision which is unlawful
on its face. All of these arguments are based on the
Petitioner's contention, contrary to the Employer and
the Intervenor, that no successor relationship exists
between the Employer and American Car.
The Board has held, with court approval, that a
successor relationship obligating the successor to
bargain with the representative of the predecessor's
employees exists where the employing industry re-
mains substantially the same.'
The Petitioner contends that Dow Chemical Com-
pany is the successor to American Car because after
December 1, 1967, it completed the remainder of the
work to be performed at this plant under the
American Car contract with the Atomic Energy
Commission that had not been transferred to other
facilities of the Commission. However, Dow Chemical
employees had been performing work of an unidenti-
fied nature at this plant when American Car was
operating there, and after the Employer took over the
American Car portion of the plant, Dow's employees
continued to perform that work in the same portion
of the plant as before. As the record does not indicate
the nature or extent of the American Car work
completed by Dow, or the number of American Car
employees, if any, hired by Dow, we cannot de-
tern-dne whether or not Dow is a successor of
American Car. In any event, even if Dow were also a
successor, that fact would not be of controlling
significance in determining the issue of the Em-
ployer's status as a successor employer to American
Car which is before us in this case.
The Petitioner also contends that the nature of the
Employer's operations differs significantly from that
of American Car. We find no merit in this contention.
The record shows that the inventory at this plant has
at all times belonged to the United States Govern-
ment. In accord with memorandum agreements
entered into between the Commission and the Air
Force, and the Commission and the Employer, in
June 1967, the plant property and equipment owned
by the Commission and operated by American Car
became the property and equipment of the Air Force
to be operated by the Employer. There were 300 to
400 machines valued at $100,000 each, and the only
change made by the Employer was the addition of
coolant equipment costing $2,500 to $3,000 to each
of 25 machines.3
In accord with a "settlement agreement" entered
into on August 1, 1967, between the Employer and
the Intervenor, the Employer offered employment to
individuals employed by American Car in the bargain-
ing unit on the basis of its need for the particular
individual. Although there was a substantial reduction
of the number of employees in the bargaining unit dur-
ing the transition period, this factor is not deter-
minative.4 Moreover, all the employees who were in
the American Car unit on November 30 became
employees of the Employer on December 1, and no
employees were transferred into the unit from other
plants of the Employer.' As American Car foremen
were employed by the Employer, there was no change
in first-line supervision. In addition, American Car's
2 Ideal Laundry Corporation , 172 NLRB No. 138, and cases cited
therein.
3 Neither the absence of a direct contract relationship between
American Car and the Employer , nor the Employer 's limited machinery
modifications is conclusive as to successorship. See Glenn Goulding
dlbla Fed-Mart, 165 NLRB No. 22; Ideal Laundry Corporation , supra.
4 See RohltlS Inc., 145 NLRB 1239, fn . 11; Johnson Ready Mix Co.,
142 NLRB 437.
5 The employee complement increased from 173 on December 1,
1967, to 207 as of January 19, 1968 , the date the petition herein was
filed, and to 386 as of May 27, 1968, the date of the hearing.
GENERAL ELECTRIC CO. 513
director of manufacturing became the Employer's
manager of manufacturing operations.
As indicated above, American Car was engaged in
the fabrication of components for weapons systems.
The unit work consisted of forming, welding, machin-
ing, finishing, assembly, and painting. The Employer
is engaged in the fabrication of components for
aircraft jet engines. At the time the Employer took
over the plant, the American Car work had been
phased out and the employees were doing jet engine
work, which required the same tolerances. In many
instances the same component that was on a machine
on November 30 was still on the same machine on
December 1, and the same man was running the
machine, working for the same supervisor, using the
same instructions. The unit classifications remained
essentially the same, with only minor changes in some
of the job descriptions, such as a change from
electrician to electrician A, machine repairman to
machine repair A, and tool and diemaker to tool-
maker. Work shifts remained unchanged, but some
changes were effected in the sick leave plan and in
pension and insurance benefits.
In view of all the circumstances set forth above,
including the fact that all the employees hired by the
Employer when it took over the Albuquerque opera-
tions were former employees of American Car and the
fact that they are engaged in essentially the same
work, we find that the employing industry remained
substantially the same, and that the Employer is
therefore a successor to American Car.6
The Petitioner contends that the August 1, 1967,
collective-bargaining agreement between the Employ-
er and the Intervenor is a prehire contract which,
under General Extrusion Company, Inc., 121 NLRB
1165, does not bar an election. Since we find a
successor relationship in this case, we do not find that
the agreement is of an objectionable "prehire" nature.
The Board has held that in a successor situation, as in
the instant case, the employees already have selected
a bargaining representative, while in an objectionable
prehire situation, the employees have not designated a
bargaining representative and would be deprived of
their opportunity to do so if the prehire agreement
were to be found a valid bar to an election.7
The Petitioner further contends that by virtue of
its petition in case 9-AC-11 and its charge in Case
9-CA-4333, filed on July 6, 1967, the parties were
put on notice of its claim to represent the employees
at the Albuquerque plant before the agreement
between the Employer and the Intervenor was exe-
cuted on August 1, 1967. We find no merit in this
contention. Neither the Petitioner's unfair labor
practice charges against the Employer nor its petition
to extend its certification as representative of a unit
of Evendale employees to the Albuquerque plant
were indicative of a substantial representative interest
among the Albuquerque employees. Moreover, both
the charges and the petition were withdrawn. No
employees in the bargaining unit were transferred
from Evendale to Albuquerque, and there is no other
evidence in the record that the Petitioner had any
representation among the Albuquerque employees at
the time the August 1 collective-bargaining agreement
was executed."
The Petitioner also contends that the collective-
bargaining agreement between the Employer and the
Intervenor cannot bar the petition because the
"settlement agreement" also executed on August 1,
1967, provides that General Electric Company will
honor all dues checkoff authorizations "presently in
the name of" American Car which the Intervenor
delivers to it. The Petitioner's contention is based on
the theory that this provision is unlawful on its face
because it does not conform to the requirements of
Section 302(c)(4) of the Act in that General Electric
Company is not "the employer" as contemplated
therein, or a successor employer. However, we have
found above that General Electric Company is a
successor to American Car. Moreover, the Board does
not consider a collective-bargaining agreement ineffec-
tive as a bar to an election because of a checkoff
provision which fails to spell out the requirements of
Section 302(c)(4).9 The checkoff provision, there-
fore, is not unlawful on its face, and the Board will
not admit extrinsic evidenc" in a representation
proceeding to establish its alleged unlawful nature.' o
We find that the agreement of August 1, 1967,
between the Employer and the Intervenor constitutes
a bar to an election, as the petition filed on January
19, 1968, was not timely with respect thereto.' 1
Accordingly, we shall grant the motions of the
Employer and Intervenor to dismiss the petition.' 2
ORDER
It is hereby ordered that the petition filed herein
be, and it hereby is, dismissed.
6 Western Freight Association , 172 NLRB No. 46; Hackney Iron &
Steel Co., 167 NLRB No. 84, enfd . in part 395 F.2d 639 (C.A.D.C.).
7 Western Freight Association , supra.
8 Rheingold Breweries. Inc., 162 NLRB No. 32, and Allied Super
Markets, Inc., 167 NLRB No. 48, cited by the Petitioner , are not
applicable in the circumstances of this case.
9 Gary Steel Supply Company , 144 NLRB 470.
10 See Paragon Products Corp . 134 NLRB 662; St. Louis Cordage
Mills, Division of American Manufacturing Company, Inc ., 168 NLRB
No. 135.
11 Deluxe Metal Furniture Company, 121 NLRB 995 ; Leonard
Wholesale Meats, Inc., 136 NLRB 1000.
12 In view of our finding herein, we find it unnecessary to rule on the
other grounds for the motions to dismiss.