Allis-Chalmers Manufacturing Co.

In the Matter of ALLIS-CHALMERS MANUFACTURING COMPANY and ALLIS-CHALMERS WORKERS, DISTRICT 50, UNITED MINE WORKERS OF AMERICA Case No. 8-5325 SUPPLEMENTAL DECISION AND ORDER August 23, 1943 On June 9, 1943, the National Labor Relations Board issued a Decision and Order in the above-entitled proceeding, dismissing a petition for investigation and certification of representatives of em- ployees of Allis-Chalmers Manufacturing Company, herein called the Company, filed by Allis-Chalmers Workers, District 50, United Mine Workers of America, herein called District 50 The order of dis- missal was predicated upon a finding by the Board that the existing contractual relationship, expiring April 15, 1944, between the Com- pany and Local 120, United Farm Equipment & Metal Workers of America, affiliated with the Congress of Industrial Organizations, herein called the C. I. 0., constituted a bar to a present determination of representatives. The dismissal of the District 50 petition was made without prejudice to its right to file a new petition at a. reason- able time before the expiration of the existing contract between the Company and the C. I. O. On July 1, 1943, the Board issued an order denying a request made by District 50 for a rehearing. On July 5, 1943, District 50, pursuant to the provisions of Section 8 (a) of the War Labor Disputes Act,2 gave notice of a labor dispute involving the Company, a war contractor, and certain of its employees. On August 4, 1943, acting pursuant to Section 8 (a), subsection 3, of the War Labor Disputes Act, the National Labor Relations Board, through its Regional Director for the Thirteenth Region, conducted a vote by secret ballot among the Company's employees with respect to whom the dispute was applicable. The balloting was conducted on the question, "Do you wish to permit an interruption of war produc- 150 N. L. R. B. 306. 2 Public Law 89, 78th Congress, Chapter 144, 1st Session. 52 N. L. R. B., No. 18. 100 ALLIS-CHALMERS MANUFACTURING COMPANY 101 tion in wartime as a result of this dispute?" a The results of such balloting, as certified by an order of the Board, showed that a ma- jority of those voting (who were, however, less than a majority of those eligible to vote) cast ballots in favor of interruption of work.4 Thereafter, District 50 filed a further application, now before us for determination, requesting that the Board reconsider its Decision and Order in this proceeding, and direct an election pursuant to Sec- tion 9 (c) of the National Labor Relations Act for the purpose of ascertaining the collective bargaining representatives of the Com- pany's employees. District 50 in its application does not specifically allege that the Board in its original decision misapprehended the facts or improperly applied its established principles and policies relating to the investigation and certification of representatives. Rather, it appears to be the position of District 50 that the results of the strike referendum must be construed as having established its majority rep- resentative status and has thus made it obligatory on the Board to reverse its previous determination, depart from its.finding that the existing contract between the Company and the C. I. O. operates as a bar to a present representation proceeding, and conduct an election for the determination and certification of representatives pursuant to the provisions of Section 9 (c) of the Act. The implications of District 50's position are of the utmost im- portance and extend beyond the confines of this particular case. If upheld, it would mean that the Board's exercise of the discretion con- ferred upon it by Congress through the National Labor Relations Act to determine whether and when it will proceed with an investigation and certification of representatives would no longer be controlled by the guiding principles of the Act as uniformly interpreted by the Board for many years, but would be made dependent upon the out- come of strike ballots conducted under the provisions of the War Labor Disputes Act. It would seem obvious that the National Labor Relations Board, as an agency of the Federal Government, should not allow itself to be influenced in the conduct of its proceedings by any pressure brought to bear on it through strikes or threats of strikes. 3In accordance with the provision of the War Labor Disputes Act, the ballot also included a concise statement of of the major issues involved in the dispute and the facilities being utilized for the settlement of such dispute. As stated on the ballot, the major issue involved in the dispute was as follows : The objection of Allis-Chalmers Workers, District 50, United Mine Workers of America, to compliance on the part of the war contractor with an order of the National War Labor Board , the effect of which required the Company to execute and maintain in effect until April 15, 1944 , a collective bargaining agreement signed with Local 120, United Farm Equipment and Metal Workers of America ( C. I. 0 ) pursuant to a National Labor Relations Board Certification. The results were as follows : Of the approximately 2200 eligible voters, 1005 voted in favor of and 836 against interruption of work. 102 DEUUSdONS OF NATIONAL LABOR RELATIONS BOARD If the position of District 50 is to be upheld, it must find support in statutory authority. There is nothing in the War Labor Disputes Act to indicate that Congress intended that Act to encroach in any way upon the exclusive authority which the National Labor Relations Act grants the Board to investigate and determine in appropriate cases questions concerning the representation of employees. The War Labor Disputes Act does not deal with issues of employee representation. Unlike elections conducted under Section 9 (c) of the National Labor Relations Act, which are designed to determine what representative, if any, the em- ployees desire to have designated for the purposes of collective bar- gaining, strike ballots conducted under the War Labor Disputes Act are held "in order that the President may be apprised of labor disputes which threaten seriously to interrupt war production, and in order that employees may have an opportunity to express themselves, free from restraint or coercion, as to whether they will permit such interruptions in wartime." 5 Thus, in this case, the only issue which was voted upon in the strike referendum conducted among employees of the Com- pany was, "Do you wish to permit an interruption of war production in wartime as a result of the dispute?" The ballot did not frame the issue of representation; it could not under the statute pursuant to which it was conducted, and the employees did not vote on that issue. While the affirmative vote may have collaterally reflected to some extent a dissatisfaction, with the certified bargaining representative and a desire on the part of a substantial number of employees to change their bargaining representative, such an inference is necessarily specu- lative since the strike referendum was not directed to that issue. Dis- trict 50 in effect concedes the validity of our conclusion that a strike referendum under the War Labor Disputes Act may not, any more than a strike referendum taken independently of that Act, be relied upon as a determination of representatives sufficient to impeach an existing certification or contract recognized by the Board as having subsisting force. District 50 does not ask the Board to certify it on the basis of the strike poll, but rather to have the Board, because of that poll, invoke its usual procedures under Section 9 (c) of the National Labor Relations Act to determine the alleged question of representation. The issue upon which this case was decided, and the only issue in this case, is not whether District 50 might obtain a majority if an election on the issue of representation were held at this time, but whether, in the interests of stability in the collective bargaining re- lationship, the Board should entertain a representation proceeding in the face of the Company's existing contractual relationship with the Section 8 (a), war Labor Disputes Act. ALLIS-CHALMERS MANUFACTURING COMPANY 103 C. I. 0. which will not expire until April 15, 1944. In this case we were faced, as we frequently are, with the problem of weighing and resolving the conflicting interests of maintaining the stability of a contractual relationship previously established and protecting the freedom of employees to select and change their representatives at will., In a case recently decided ,e the Board stated this problem and ex- pressed its established policy with regard thereto as follows : The Board has always held to the view, we think correctly, that its discretion with respect to the effect to be given to a collective bargaining contract in a representation case is limited by the necessity of balancing two separate interests of employees and society which the Act was clearly designated to foster and protect : namely, the interest in such stability as is essential to encourage the'practice and procedure of collective bargaining, and the some- times conflicting interest in the freedom of employees to select and change their representatives at will. In weighing these conflict- ing interests, the Board has developed its doctrine that a contract will bar an investigation to determine representatives for a definite and reasonable period, but no longer. It is the Board's usual policy to refuse to entertain a petition for investigation and certification of representatives where there is urged as a bar a valid contract executed prior to any claim by the petitioner. The exceptions made by the Board to this policy fall generally into the following categories : (1) where the contract has already been in effect for a reasonable period; (2) where it is about to expire; (3) where there exists substantial doubt as to the identity of the labor organiza- tion that claims to be a party to the contract; (4) where substantially the entire membership of the contracting union in the affected bar- gaining unit has shifted to another organization, or (5) where the contracting union has, in effect, abandoned its members.7 In the in- stant case we found, for the reasons expressed in our original decision, that the first exception did not apply. It has never been urged that this case falls within any of the other categories of exceptions. The existing contract has several months to run. No doubt exists as to the identity of the labor organization which is a party to that contract. Even if we assume District 50's premise that the strike vote is expres- sive of the employees' desires with respect to a collective bargaining representative, it cannot be argued therefrom that substantially the entire membership abandoned the C. I. 0. which, as its duly certified representative, entered into the contract on its behalf. It is not dis- puted that the C. I. 0. is able effectively to administer the contract. e Matter of The Trailer Company of America, 51 N. L R. B. 1106. See Matter of Washington-Eller Co., 48 N. L. R. B. 1164, and cases therein cited. 104 DECCIISIONS OF NATIONAL LABOR RELATIONS BOARD Applying our usual policy in this case, we found and determined upon the facts presented that the interest of maintaining contractual stability outweighed the interest of the employees to obtain a determi- nation of representatives at this time, and that a determination of new representatives should therefore be deferred until a reasonable time before the expiration of the existing contract between the Company and the C. 1. 0. We have since reexamined our decision and the record of this case for possible error, and are convinced that our decision was sound and in accordance with the established policies and principles of the Board. We therefore feel constrained to adhere to our original determination. In conclusion, we believe we should again emphasize, lest there be any misunderstanding, that our decision and order does not deprive the employees of an opportunity to choose, should they so desire, District 50 as their representative for the purpose of negotiating a new collec- tive bargaining contract with the Company to supersede the present contract upon its expiration on April 15, 1944. We hold only that in view of the existing contract, District 50's representation claim is not at present timely. Upon a proper showing, the Board will enter- tain a petition of District 50 for investigation and certification of representatives, if filed on or about the first of February. It is to the credit of District 50 and the affected employees that, notwithstanding the results of the strike referendum, they have refrained from taking any action which might interrupt the vital war production of the Company's plants. It is to be expected that they will continue thus to abide by labor's war-time no-strike pledge given to the President and the nation. IT is HEREBY ORDERED, that the aforesaid application for reconsidera- tion of the Decision and Order be, and it hereby is, denied. CHAIRMAN Maras took no part in the consideration of the above Supplemental Decision and Order.