Lane Wells Co.

In the Matter of LANE WELLS COMPANY, EMPLOYER and OIL WORHERs INTERNATIONAL UNION, C. I. 0., PETITIONER Case No. 21-RC-66 SUPPLEMENTAL DECISION AND DIRECTION OF ELECTION o August 30, 1948 By our decision of June 4 in this matter we found that the Petitioner was in reality acting in behalf of its Local 128, which was found not to have complied with the filing requirements of Section 9 (f), (g), and (h) of the Act. For this reason, and this reason only, we unani- mously dismissed the petition. Counsel for the Petitioner has since advised the Board that Local 128 complied with the filing requirements of the Act after the filing of briefs by both parties but prior to our June 4 decision. Unfortun- ately, notice of this belated compliance was not brought to the Board's attention when the case was under consideration. The Board regrets this fact. To correct its decision in accord with its records, the Board hereby reopens this proceeding and rescinds its Order of June 4, 1948, dismissing the petition.' Upon the entire record in this case, the Board further finds: 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer, within the meaning of Section 9 (c) (1) and Section2 (6) and (7) of the Act. 4. The following employees of the Employer constitute a unit appro- propriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: all field service and field shop employees of the Employer's California Division, excluding all field office em- ployees and all supervisors.2 ' Although no longer applicable to the facts in this case, the principle announced in the original Order (77 N. L. R. B. 1051), that an international will not be certified if a non-complying local is actually in the picture, still enunciates unanimous Board doctrine. Matter of U. S. Gypsum Company, 77 N. L. R. B. 1098. 2 Matter of StanoZind Oil & Gas Co., 67 N. L. R. B. 375; Matter of Ohio Oil Co., 60 N. L. R. B. 418; Matter of Richfield Oil Corp., 59 N. L. R. B. 1554. 79 N. L. R. B., No. 35. 252 LANE WELLS COMPANY 253 5. Compliance by Local 128 with Section 9 (f), (g), and (h) has extinguished any possibility that the Oil Workers International Union, Petitioner herein, is or could be seeking certification to enable a noncomplying local to circumvent the provisions of Section 9 (f), (g), and (h). Nevertheless, our dissenting colleagues would still deny the International its right as the petitioning labor organization to appear on the ballot and be certified as the exclusive bargaining representative if it receives the necessary votes. They would require either (which, it is not entirely clear) that Local 128 be substituted for the International or that both labor organizations appear on the ballot and be jointly certified as bargaining representatives if the election is won. The dissent advances two considerations as reasons for their position : (1) because grievance procedures are tradition- ally conducted by local unions, it is more desirable to have employees vote for a local union ; (2) placing the local union on the ballot best reflects the intent of Congress with respect to Section 9 (f), (g), and (h). The short answer to these arguments is that considerations as to the relative desirability of having international unions certified alone, as against certifications of locals singly or jointly with international unions, are of no relevance if the Act does not vest the Board with authority to make such a choice. Nor does excessive preoccupation with Section 9 (f), (g), and (h), to the exclusion of other sections of the Act, give us a true picture of the Congressional intent. In our opinion, the Board lacks authority to refuse an international union which is the petitioning labor organization the right to appear alone on the ballot and be certified as exclusive representative merely be- cause the Board Members may believe that it is better for employees to vote for local unions. Nor do we believe that certification of a local union singly or jointly with an international, instead of certification of an international alone, is necessary to effectuate Congress' intent (g), and (h). In any event, it should in connection with Section 9 (f). in be reemphasized that, in the present case, both the local and the inter- national have complied. The only question before us, therefore, is whether, when both a local and an international are in full compliance, this Board should take it upon itself to tell employees, for the first time in 13 years, that they may not be afforded an opportunity to select the international as their bargaining representative. Our dissenting colleagues completely over- look the declared policy of the Act to protect the "full freedom" of employees to designate bargaining "representatives of their own choosing," not of the Board's choosing. (Emphasis supplied.) The provisi*ls of Section 9 of the Act further reflect, and must be con- 254 DECISIONS OF NATIONAL LABOR'-RELATIONS BOARD s"trued in the light of, this basic policy to permit employees full free- dom to select their bargaining representative. Thus Section 9 (c)• ,(1),provides that .a petition may -be filed by "any, individual or labor organization.," alleging that a substantial number of employees,' de sire collective bargaining but that the employer declines to recognize "their representative." If the Board finds that a question of repre- sentation exists, it is further provided that the Board "shall direct an election." We cannot. conceive that, where the petitioning labor or- ganization is itself claiming the right to represent the employees, this mandate to hold an election on such claim of representation can mean anything but p] acing that organization on the ballot .3 We recognize, of course, that there are certain limitations on the absolute right to select any organization which are either explicitly 4 or implicitly present in the Act itself. Thus the Board will not place on the ballot an organization found to have been illegally dominated under Section 8 (a) (2) of the Act. Nor will the Board place an indi- vidual 5 or labor organization on the ballot where it appears that. by doing so we would facilitate circumvention of the provisions of Section 9 (f), (g), and (h). It is elementary that all provisions of a statute must be read together and all of its provisions given effect in constru- ing and applying it. But excepting only the few restrictions explicitly or implicitly present in the Act, we find nothing in Section 9, or else- where, which vests in the Board any general authority to subtract from the right.of employees to select any labor organization they wish' as exclusive bargaining representative. It is not an uncommon practice for some international unions to seek certification, to contract, and to assume responsibility for collective bargaining and the observation of agreements, rather than to have their local unions do so.6 In some 3 We do not consider the cases cited by the dissent in footnote 5 as controlling on the question of the Board's power to substitute or add a local union on the ballot where an international union is the petitioner. In the Colson Corporation and Aviola Radio ' Corpora; tion cases the international union petitioners were not averse to the placing of the local union's name on the ballot. Indeed, in the Aviola case the proceeding was entitled "for itself and in behalf of" the local. In the Colson case the international in its brief ( referred to in footnote 1 of the Board's decision in that case) stated, "The petitioning Union is Office Employees International Union, Local No. 177 " In the Pendleton Shipyards case the local union was the petitioner ; hence the use of its name on the ballot rather than the international union's was normal and proper In the United States Gauge case, where the A F of L. petitioned "for and on behalf" of two international unions, placing the latter on the ballot instead of the A F. of L was proper, because it appeared that the A. F. of L. did not intend to act as bargaining representative, it being "understood by all parties that these [international] unions, if there is a certification, will act jointly in negotiations with the Company." Moreover, these decisions were made under the Wagner Act, Section 9 of which did not contain a specific provision as does Section 9 (c) (1) of the amended Act that "any" labor organization may file a petition. 4 As for example, Section 9 (b) (3) which prohibits guards from selecting a union which represents other employees or is affiliated with an organization representing other em- ployees, by prohibiting the Board from certifying such an organization. 5 Matter of Campbell Soup, 76 N L R. B 950. 6 Lester, Economics of Labor (1941), p 577. LANE ,WELLS, COMPANY 255• instances an international union has contracts ratified and' signed by represen ta tives of the local as well as itself. The wisdom of such pro- cedures is not for this Board to decide, lest Government intrude too deeply into the affairs-of labor organizations and employers .7 , , We believe that the view we have taken conforms to the intent of, Congress in;enacting the Labor Management Relations Act of 1947. When this statute was considered by the Congress a section was pro- posed that would have severely limited our authority to certify national or international labor organizations and would have meant the certifi- cation of local unions only, except in a very narrow area. The pro- posal, however, was rejected. The proposed section (Section 9 (f) (1) of H. It. 3020, 80th Cong., 1st Sess. (1947) p. 31) prohibited the certifi- cation of a labor organization as representative of the employees of more than 1 employer, unless the employees involved were less than 100 in number and the plants of the employers involved were less than 50 miles apart. The purpose of this provision, designed to eliminate industry-wide bargaining, as set forth in H. R. Rep. No. 205, 80th Cong., 1st Sess. (1947) pp. 7, 35, and 36, was to enable employees to regulate more closely bargaining on their behalf and to prevent national or international labor organizations from controlling em- ployees, fixing terms of employment, and disapproving employee action. Section 9 (f) (1) was eliminated in conference, and omitted from the conference agreement and the amended Act itself. ( House Conf. Rep. No. 510, on H. R. 3020, 80th Cohg., 1st Sess. (1947) ). We are not authorized to reinsert it by construction or administrative' action. • - • Under .existing law, the division of function and responsibility between international and local unions with respect to bargaining is clearly a matter of their internal affairs. The right of an international union to seek certification, and of employees to vote for it, is protected against action of the type suggested in the dissent unless some other policy of the Act is clearly contravened. We cannot join our dissenting colleagues in the strained argument that it is still necessary, in order to effectuate the policy of Section 9 (f), (g), and (h), to deny the petitioning International herein an exclusive certification because of the purely, speculative, possibility that at some future time Local 128 might permit its compliance to 7 This view finds strong support elsewhere For example, on July 9, 1948, the Interna- tional Labor Conference adopted a Convention on Freedom of Association for submission to the member governments, Part I, Article 3, of which reads as follows : 1. Workers' and employers' organizations shall have the right to draw up their constitutions and rules to elect their representatives in full freedom, to organize their administration and activities and to formulate their programmes 2. The public authorities shall refrain from any interference which would restrict this right-or impede -the lawful exercise thereof. • 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lapse. It is urged that if the Employer'then refused to bargain with the international it would have to spend its time and energy defending an 8 (a) (5) proceeding before the Board." This argument overlooks the simple fact that the Board has the power to police its own certifica- tions and can thereby fully effectuate the policies of Section 9 (f), (g), and (h). If changing circumstances should give rise to a situation in which the Board for policy reasons would not issue a certification in the first instance, it has power, either on its own motion or that of the Employer, to recall the certificate.,, Moreover, if the speculative reasoning of our dissenting colleagues were carried to its logical conclusion, an international union could never go on the ballot and be certified even if no local union had been formed at the plant; for it is apparent that, after its certification, an international union could form a local which might not comply, or after doing so might allow its compliance to lapse. Nevertheless, our colleagues specifically assert in their dissent that it is proper to certify an international union if no local is in the picture. Indeed, one of them joined in the recent Granite Textile Mills decision 10 in which the Board properly rejected the employer's contention that a local union to be formed by the international union petitioner must be made a party to the proceeding and required to comply with Section 9 (f), (g), and (h). The Board remarked in that case that the employer's argument was "conjectural" and "at the least, premature." We find no more warrant for "conjecture" in the one situation than in the other. For the foregoing reasons we shall not depart from our usual prac- tice of placing only the name of the Petitioner on the ballot. DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the pur- poses of collective bargaining with the Employer, an election'by secret ballot shall be conducted as early as possible, but not later than 30 days from the date of this Direction, under the direction and super- vision of the Regional Director for the Region in which this case This could happen, of course, only if the General Counsel issued a complaint. For our part, we have no reason to doubt that the General Counsel would give due consideration to the policies of Section 9 (f), (g), and (h) in deciding whether to issue a complaint. See, e. g., Matter of Larus t Brother Company, Inc., 62 N. L. R. B. 1075, 1085; Matter of Atlanta Oak Floorin, Co., 62 N. L. R. B. 973, and cases there cited 10 76 N. L. R. B. 613. That decision states : "The Employer further contends that inasmuch as the record indicates that the Peti- tioner will establish a local union, the Board should require such local to be a party to this proceeding, and should require it to comply with Section 9 (f), (g), and (h) of the Act. . -.. We find no merit in the Employer's contention. Whether or not a local union is established, and whether or not its officers will comply with the Act is conjectural ; the Employer's contention is, at the least, premature." LANE WELLS COMPANY 257 was heard, and subject to Sections 203.61 and 203.62 of National Labor Relations Board's Rules and Regulations-Series 5, among the em- ployees in the unit found appropriate in paragraph numbered 4, above, who were employed during the pay-roll period immediately preceding the date of this Direction of Election, including employees who did not work during said pay-roll period because they were ill or on vaca- tion or temporarily laid off, but excluding those employees who have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the election, and also excluding em- ployees on strike who are not entitled to reinstatement, to determine whether or not they desire to be represented, for purposes of collective bargaining, by Oil Workers International Union, C. 1. 0. MEMBERS REYNOLDS and GRAY, dissenting : In the original Decision and Order in this case, the Board found that although the petition was filed by the International Union, the International Union was "in reality acting in behalf of Local 128." Accordingly, since on the basis of information available at that time it appeared that Local 128 had failed to comply with the filing require- ments of Section 9 (f), (g), and (h) of the Act, the Board, by unani- mous decision, dismissed the petition. There can be little doubt but that the basis of the Board's decision was the fact that the Local was a real party in interest.' The information which was subsequently brought to the Board's attention that Local 128 was in fact in compliance with the filing requirements of the Act in no way detracts from its established interest in this proceeding. Whether in compliance, as it is now, or not in compliance, as it was at the time the petition was filed, Local 128 remains a real party in interest and will continue as an essential instru- ment in any bargaining relationship which may be created if the Petitioner is successful in the election which our colleagues are now directing.2 Believing this to be so, we would require that Local 128 ' See Matter of United States Gypsum Company, 77 N L R B 1098 ; and Matter of Central Paper Company, 7-UA-82, ruling on appeal dated June 4, 1948. 2 As is generally true, the Local plays a vital part in the representation of employees. In this particular case, the role of Local 128 is emphasized by the following factors (a) Local 128 , by a letter to the Employer , requested recognition as representative of the latter 's employees ; (b) Local 128 actively solicited membership in its organization among employees of the Employer ; (c) The constitution of the Oil Workers International Union, CIO , points up the im- portance of the role which Local 128 must , of necessity, play in any bargaining relationship which may be created Thus , Article IV, Sections 3 and 4, set forth the minimum participa- tion of local unions in the bargaining relationship : Section 3 Agreements or supplements negotiated by local unions, representatives, or anyone delegated with authority to negotiate same, shall be ratified or rejected by local unions in regular or special meeting through a majority vote of members affected 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD appear on the ballot in this election, for the Local should be at least -a joint recipient with the International of any certification which may subsequently issue. A number of considerations point to the wisdom of this position. First and foremost, we believe that it best reflects the intent of Con- "gress with respect to its enactment of Section 9 (f), (g), and (h) `of the Act. Congress has emphatically directed this Board to refrain 'from extending the use of its election facilities and the benefits of -its certifications to labor organizations which fail to comply with the filing requirements of this section. Thus the same policy which `motivated our dismissal of the petition when it was first before us- namely, the possibility of circumventing the filing requirements of the Act-is as important today as it was at that time. It appears that ,should certification be issued, to the International Union, as contenl- -plated by the majority decision, a subsequent lapse in compliance on .the part of Local 128 would not, of itself, alter the international's capacity to continue as the certified bargaining representative. With the international so designated, the Employer could quite justifiably consider itself bound to bargain with the International regardless of the compliance status of Local 128. On the other hand, should the Employer refuse to bargain in such a situation, it must be prepared to spend its time and energy in defending its position in an 8 (a) (5) action before this Board. To encourage even the possibility of such an occurrence is certainly injudicious, to say the least, especially when the Board has it within its power 3 to designate Local 128 on the ballot, thereby eliminating any ambiguity as to the identity of the possible prospective bargaining representative.' who are present at said meeting, or a majority present in said meeting may submit the question to a referendum vote Section 4 The local union shall notify' the International Office of the results of tabulation, showing the total number of members affected who hold membership in the local union , the total number voting, the total number of affirmative votes, and the total number of negative votes This tabulation shall bear the local union seal and the signatures of the president or secretary of the local and one other officer of the local union. (d) Furthermore this same constitution provides that before becoming a member of the Oil Workers International Union an employee must be accepted by majority vote of the Local. If he is subsequently charged with violations of union rules , his conviction must be by two-thirds vote of the Local. Hence it is to the Local that an employee must look for approval as a condition of membership, and it is this same Local which controls his ability to remain a member, once having been accepted 3 If, as the majority asserts , the Board has no authority to refuse a petitioning interna- tional union the right to appear alone on the ballot and be certified as the exclusive repre- sentative, it is difficult to perceive by what authority the majority joined in the refusal of "the Board in its original Decision and Order herein to entertain the petition of the Inter- national because Local 128 was not in compliance with the filing requirements of the Act. This apparent Inconsistency , in our opinion , clearly reveals that the issue with which we are confronted is not one of authority but rather one of discretion. - A See Matter of The Colson Corporation, 70 N L R B. 1235. LANE. WELLS COMPANY 259 Moreover, we are of the opinion generally that employees voting in a representation proceeding are entitled to indicate their choice for the labor organization which, if chosen by majority vote, will be the agency through which they will deal with their Employer through the utilization of the generally accepted grievance procedures set up in bargaining agreements. Participation in grievance procedures traditionally has. been a matter peculiarly of interest to and -within the grasp of-local union officers and members.5 For the foregoing reasons, we would therefore place Local 128 on the ballot. 5 Before the recent amendments to the Act, the Board has on occasion refused to place an international or parent organization on the ballot where it appeared that the local was the "real party in interest " While no rationale accompanied these decisions, it is a reason- able assumption that the Board was moved by the primary interest of union locals in repre- sentation proceedings brought by their internationals. See Matter of Ai,iola Radio Cor- poration, 71 N L. R B. 321 ; Matter of The Colson Corporation, supra; Matter of United States Gauge Company, 63 N. L R. B. 1254, 1259; and Matter of Pendleton Shipyards Company, 62 N L It. B 1409, 1412. Of course, where there is no local union in the pic- ture, certification must and appropriately should run to the petitioning international or national organization Cf Matter of Granite Textile Mills, 76 N L. It. B. 613.