General Box Co.

In the Matter of GENERAL Box COMPANY, EMPLOYER and INTER- NATIONAL ASSOCIATION OF MACHINISTS, DISTRICT No. 9, PETITIONER and INTERNATIONAL UNION OF OPERATING ENGINEERS , LOCAL 149, IN- TERVENOR Case No. 14-RCD01.Decided April 1, 1949 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing was held before a hearing officer of the National Labor Relations Board. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the National Labor Relations Act. 2. The labor organization named below claims to represent em- ployees of the Employer. 3. At the hearing, the Employer contended that there is no question of representation before the Board, inasmuch as it has recognized the Petitioner as the bargaining representative 1 of its employees in the appropriate unit, and is willing to continue to do so. As an indica- tion of its willingness to recognize the Petitioner, the Employer pointed out that at the time of the hearing it was in the process of negotiating another agreement with that Union. The Petitioner agreed that it was recognized by the Employer, but contended that under Section 8 (b) of the amended Act, certified bargaining agents are given advantages and benefits which recognized unions do not enjoy and that, consequently, a question of representation does exist. The issue here is jurisdictional, as it is only when a question concern- itlg representation is found to exist that the Board is authorized to proceed to an election and certification in any case arising under Section 9 (c). The Act contains no comprehensive definition of tho I The Employer had joint contracts recognizing the Petitioner , the Intervenor , and the International Hod Carriers , Building and Common Laborers Union of America, from 1938 to 1946. However, in 1946, and again in 1947, separate agreements were negotiated with these unions. 82 N. L. R B., No. 75. 678 GENERAL BOX COMPANY 679 term "question concerning representation," although Section 9 (c) (1) (A) ,2 which provides for the filing of representation petitions by ,employees or a "labor organization acting in their behalf," describes such a petition as one "alleging" that the employees desire collective bargaining "and that their employer declines to recognize their repre- sentative. . . ." This new subsection, one of the 1947 amendments of the Act, clearly implies that there is a question concerning representa- tion (other things being equal), where the employer declines to recog- nize a union asserting representative status. This affirmative impli- cation of the statutory language coincides with definitive statements frequently made by the Board itself in cases under the old Act where the existence of a question concerning representation was in issue 3 However, we do not interpret either Section 9 (c) (1) (A) (i) of the Act, or the Board's historical pronouncements in cases not involv- ing this precise issue, as compelling us to hold that there can be no question concerning representation in the absence of an employer's declination or refusal to recognize the petitioning union. In this case, if we were to read the statutory provision so restrictively, or adhere to a literal interpretation and slavish application of old Board doctrine, we would deny the Petitioner certain benefits which, we believe, the basic policy of the 1947 amendments to the statute requires us to extend to a union that desires certification for purposes other than securing the employer's immediate recognition, and stands ready to prove its majority status in a Board-conducted election. Recently in the Advance Pattern case,4 we decided an issue as to the effect of Section 9 (c) (1) (A) (i) 5 that is closely related to the prob- 2 This section provides : Whenever a petition shall have been filed in accordance with such regulations as will be prescribed by the Board- (A) By an employee or group of employees or any individual or labor organization acting in their behalf alleging that a substantial number of employees ( i) wish to be represented for collective bargaining and that their employer declines to recognize their representative as the representative defined in Section 9 (a) . . . The Board shall investigate such petition and if it has reasonable cause to believe that a question of representation affecting commerce exists, shall provide for an appropriate hearing upon due notice . . . If the Board finds upon the record of such hearing that such a question of representation exists , it shall direct an election by secret ballot and shall certify the results thereof. [Emphasis added.] Statements expressing this view appear in various Annual Reports . Typical is the one in the Tenth Annual Report, p. 16 ff. ( 1945 ) : "The Board initially considers in [representation] proceedings whether or not a question concerning representation has arisen , and generally finds that this is the case if the employer has refused to recognize a union seeking to bargain collectively for employees in a given unit." But the facts in the present case are unique, and, consequently , the Board has had no occasion to consider whether or not the employer 's voluntary recognition alone precludes a union from raising a "question concerning representation " for the purpose of securing a Board election and certification. As we show below in footnote 16 Cornell Dubilier Electric Corporation, 78 N. L . R. B. 664 and Lake Tankers Corporation, 79 N. L. R. B. 442 , are distinguishable from the present case. 480 N. L. R. B. 29. (On reconsideration , Members Murdock and Gray dissenting.) 5 Quoted in footnote 2, above. 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lem in this case. In that case, the petition filed by a labor organization which sought an election and certification failed to conform to the specifications set forth in Section 9 (c) (1) (A) (i). It did( no,allege that the employer had "declined" to recognize the petitioner, and the record showed that there was no declination by the employer until a date after the petition was filed. The Board majority nevertheless directed an election, holding that the language of the Act, describing certain types of petitions that may be filed, is not to be construed as restrictively defining the Board's jurisdiction. In reaching this con- clusion, the Board in effect anticipated the situation now presented in this case. We pointed out that to construe Section 9 (c) (1) literally and restrictively would preclude certification of unions which, al- though they already enjoy recognition, may still desire to be certified in order to secure protection under Section 8 (b) (4) (C) of the Act s By virtue of this provision it is an unfair labor practice for one union to take concerted action directed to accomplish the overthrow of an established certified representative. As a prohibition against "raid- ing," its value to the certified union is immediately apparent.' Furthermore, if we were to treat the Employer's recognition of the Petitioner in this case as negating the existence of a question concern- ing representation, we would be compelled to deny the petitioning union an opportunity to secure still other benefits which the amended statute reserves to certified unions. Under Section 8 (b) (4) (B),$ ° Section 8 (b) (4) provides that it shall be an unfair labor practice for a labor organi- zation, or its agents : (4) to engage in, or to induce or encourage the employees of any employer to engage in, a strike or a concerted refusal in the course of their employment to use, manu- facture, process, transport, or otherwise handle or work on any goods, articles, ma- terials, or commodities or to perform any services, where an object thereof is s s s • r t r (B) forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provisions of Section 9 ; (C) forcing or requiring any employer to recognize or bargain with a particular labor organization as the representative of his employees if another labor organization has been certified as the representative of such employees under the provisions of Section 9 ; (D) forcing or requiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft, or class rather than to employees in another labor organization or in another trade, craft, or class, unless such employer is failing to conform to an order or certification of the Board determining the bargaining representative for employees performing such work: Provided, that nothing contained in this subsection (b) shall be construed to make unlawful a refusal by any person to enter upon the premises of any employer (other than his own em- ployer), if the employees of such employer are engaged in a strike ratified or ap- proved by a representative of such employees whom such employer is required to recognize under this Act . . . [Emphasis added.] ' Illustrating this point as to the significance of a certification under Section 8 (b) (4) (C) is the holding in Perry-Norvell Company, 80 N L. It. B. 225, that it is not unlawful to strike to force an employer to recognize one labor organization when the other one has not been certified. 8 Quoted in footnote 6, above. GENERAL BOX COMPANY 681 for -example, it is only a certified union that can lawfully induce the employees of some "other employer" to engage in a strike or other concerted activity for the purpose of compelling the primary employer to recognize it. The legality of certain concerted activities sponsored by one union in aid of another union's effort to secure recognition, too, depends upon whether or not the latter union is certified. Moreover, a Board certification is a defense in certain situations where a respond- ent union is charged with engaging in a strike or other concerted activity in support of a jurisdictional dispute within the ambit of Section 8 (b) (4) (D) of the Act .9 These statutory privileges and immunities that accompany certi- fication are not the only significant advantages that accrue to certi- fied unions, as distinguished from those that enjoy recognition without certification. Under the so-called "one-year rule" enunciated by the Board long before the 1947 amendments were enacted, a certified union's right to recognition as the exclusive bargaining agent is sta- bilized and fully protected for a "reasonable" period of time, ordinarily 1 year from the date of certification. This rule operates to limit the freedom of the employees to select and change their bargaining representative at will, once they have selected a union in a secret ballot conducted by the Board; 10 it derives from the statutory policy of encouraging and stabilizing collective bargaining in the interest of industrial peace; 11 it endows a certified union's status with a measure of security and permanence not enjoyed by a union whose majority standing and right to recognition is established otherwise than by Board election and certification. For example, although an uncertified union may prove its majority to the employer's satisfaction, properly secure recognition and nego- Quoted in footnote 6, above. 11 In N. L. R. B. v. Century Oxford Manufacturing Corporation, 140 F. (2d) 541 (C A. 2), affg. 47 N. L. R. B. 835, the Court observed that : . . . freedom to choose a representative does not imply freedom to turn him out of office with the next breath. As in the case of choosing a political representative, the justification for the franchise is some degree of sobriety and responsibility in its exercise. Unless the Board has power to hold the employees to their choice for a season, it must keep ordering new elections at the whim of any volatile caprice, for an election, conducted under pioper safeguards, provides the most reliable means of ascertaining the deliberate will of the employees n In The Century Oxford Manufacturing Corporation case (47 N. L R. B. 835 at 847), the Board said : . . The Board must balance the advantages of stability in collective bargaining against the desirability of affording employees full freedom of choice of representatives. The Board has attempted to achieve a balance between these conflicting policies by refusing to entertain representation petitions within a reasonable period after an election, except where unusual circumstances intervene. Without such a rule, col- lective bargaining would be deprived of stability, and administrative determinations would be ephemeral . . . See also Botany Wotsted Mills, 41 N. L. R. B. 218, enfd. 133 F. (2d) 876 (C A. 3) ; Appalachian Electric Power Company, 47 N. L. R. B 821, affd. 140 F. (2d) 217, (C. A. 4). 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tiate with the employer for many months, the successful completion of this collective bargaining effort may be frustrated. If, at the eleventh hour before a contract is signed, a rival union, or employees seeking to "decertify" 12 the merely recognized union, assert that its majority is dissipated and file a petition with the Board, the employer may not lawfully execute a contract until the Board has disposed of the petition.13 But if the union has a vital certification, neither the employer himself nor a rival union, nor the employees, can effectively raise a question of representation; 14 and if a contract otherwise valid is signed or renewed within the certification year, even in the face of a petition, it will bar an election for its term 15 In short, under the "one-year rule," a Board certification not only resolves any dispute as to the employer's duty to recognize and bargain with the certified union ; it also precludes other possibly interested parties from raising a question of representation, and for a definite period of time. In enacting the 1947 amendments, Congress left unchanged the Board's practice of according this special value to certifications. More- over, it greatly expanded and implemented the protection of certified unions in Section 8 (b) (4), and restated the statutory policy of sta- bilizing collective bargaining relationships in the public interest. It would be a retrogressive step tending to defeat that basic policy to hold than an employer's willingness to recognize and bargain with a union makes it impossible for the union to secure the other manifest advantages which flow from a Board certification. In many in- stances, indeed, it is the employer-although concededly not this one- who seeks these advantages and particularly those conferred by Sec- tion 8 (b) (4) (c). For these reasons, as well as those more fully stated in the Advance Pattern case, we conclude that, in view of the 1947 amendments, an employer's recognition of a union which asserts representative status does not, in and of itself, negate the existence of a question concerning representation. In this case, we are of the opinion that there is such a question, created by the Petitioner's assertion of majority standing, 12 The Board has held that in decertification cases, the same rules of decision apply as those governing petitions for investigation and certification of representatives. Snow & Nealley Company, 76 N. L. R B 309 13 Midwest Piping and Supply Company, Inc., 63 N. L. R B. 1060. Cf. I. Spiewak & Sons, 71 N. L. R. B 770 11 Crieder Machine Tool & Die Company, 49 N. L. R. B. 1325, enfd. 142 F. (2d) 163 (C. A. 6) ; Lift Truck, Inc., 75 N. L. R. B 998; Allen-Morrison Sign Company, Inc., 79 N. L R B. 903. 16 Swift & Company, 66 N. L. R. B. 1288; Omaha Packing Company, 67 N. L. R B 304; Con P Curran Printing Company, 67 N. L. R. B. 1419; Quaker Maid Company, Inc., 71 N. L. R. B. 915 ; De Vry Corporation, 73 N. L. R. B. 1145; Texas Paper Box Manufacturing Company, 75 N. L. R. B. 799. GENERAL BOX COMPANY 683 its expressed desire to secure a certificate, and its formal petition that the Board investigate its status by the statutory method of conducting an election." The concurring opinions of our colleagues propose that the Board certify the Petitioner here without an election, apparently after some- other type of investigation of its majority status. Aside from the fact that such a procedure might well stimulate collusion and raise more problems than it would solve, we must point out that the 1947 amend- ments deprived the Board of the power to certify without an election. And even when that power existed, the Board abandoned the practice- in 1939,17 in the interest of investing its certifications with more cer- tainty and prestige by basing them on free and secret elections con- ducted under the Board's auspices.1' Employers and unions do not require Board certifications as a prerequisite to collective bargaining if- recognition of a majority representative suffices for their purposes. But if a certification is deemed desirable because of its special ad- vantages, the use of the ballot box is not too high a price to pay. 4. The following employees of the Employer constitute a unit ap- propriate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act: All maintenance machinists, specialists and machinists helpers do- ing the work of making, erecting, assembling, installing, maintaining,. dismantling (other than set-up and operating duties ), and the repair- of all machinery or parts thereof, but excluding all laborers, engineers, office clericals, guards, and supervisors as defined in the Act.19 16 We distinguish Lake Tankers Corporation, supra, where the parties only desired the Board's opinion as to the supervisory status of watchmen, and neither the petitioning em- ployer nor the currently recognized union desired an election. We also distinguish Cornell Dubilier Electric Corporation, supra, which involved essentially an issue cognizable under Section 8 (a) (5). The currently recognized petitioner in that case , seeking an election and certification , was primarily concerned with obtaining from the Board an interpretation of its contract with the employer, and a ruling as to whether or not the- contract excused the employer from bargaining for a new agreement. The Board held that this was not the proper proceeding to resolve such issues between the parties and found that a question concerning representation did not exist. However, to the extent that the opinions in these and similar cases implied that there can be no question of representation unless the employer refuses to recognize the petitioning union, they are hereby overruled. 14 Cudahy Packing Co ., 13 N. L. R B. 526 ; Armour and Co., 13 N. L . R. B. 567. The only exceptions after 1939 were cross-checks conducted by consent. 18 Cf. aladewater Refining Company , 64 N. L. R. B. 696 and cases there cited, in which we refused to certify without an election , even in the absence of dispute as to a union's majority. 19 All the parties at the hearing agreed on this unit . The Intervenor participated mainly- to make certain that the unit should be so defined as not inadvertently to include its. members. See Continental Can Company, Inc., 76 N. L. R. B. 131; Marshall Field d Company, 76 N. L. R. B 479. '684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the purposes 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 was -was heard, and subject to Sections 203.61 and 203.62 of National Labor Relations Board Rules and Regulations-Series 5, as amended, among -the employees 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 vacation 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 exclud- ing employees on strike who are not entitled to reinstatement, to determine whether or not they desire to be represented, for purposes of collective bargaining, by International Association of Machinists, District No. 9. MEMBER MuRDOCK, concurring specially : As I am bound by the majority's decision in the Advance Pattern case, I concur in this decision insofar as it holds that the Petitioner's failure to show that the Employer has declined to recognize it does not, in and of itself, divest the Board of jurisdiction to proceed under Section 9 (c) of the Act. But, in view of the evidence showing that the Employer and Petitioner were negotiating for a contract at the time of the hearing, I would not direct an election forthwith. Instead, I would reopen the record for the purpose of ascertaining whether or not the parties have entered into a collective bargaining contract. if they have done so, and if the contract is one that would bar a petition for certification or decertification for a fixed term, I believe that the Board should issue a certification declaring that the Petitioner is the duly designated representative of the employees in the appropriate unit, under Section 9 (a) of the Act.20 To hold an election in the 20 Such a certification, without an election , is not expressly authorized by Section 9 (c) of the Act, which directs the Board to "certify the results" of an election , but there is nothing in the statute that forbids it. I believe that the Board could properly provide for it by rule. The Board unquestionably has the power to dismiss one union 's petition because another union's contract is a bar. I see no reason why we may not, at the same time, take the logical next step and "certify" that the contracting union's status is unassailable for the reasonable term of the contract. The majority suggests that the procedure I advocate might "stimulate collusion." I cannot agree, for the legality of a contract urged as a basis of certification could be at- itacked just as readily as a contract urged in bar of a petition for certification or decertifl- GENERAL BOX COMPANY 685' face of such facts would seem a wholly unnecessary and futile gesture; also a needless expenditure of Government money. The procedure that I suggest would enable the Petitioner to take advantage of the privileges and immunities accorded to certified unions under Section 8 (b) (4) of the Act. At the same time, unlike the procedure adopted by the majority in this case, it would dignify and protect a voluntary collective bargaining relationship established. in good faith. This, I believe, would effectuate a basic statutory pur- pose : to enoourige collective bargaining between employers and em- ployee representatives without governmental intervention. It is apparent from the structure of the entire statute that such voluntarism is one of its objectives: Section 1 of the Act, written in 1935 when there was no established practice of governmental elections- to determine employee representatives," denounced the refusal by employers "to accept the procedure of collective bargaining." That same section declared it to be Federal policy to protect "the exercise by workers of full freedom of association, self-organization, and_ designation of representatives of their own choosing, ..."-not election of their representatives under governmental auspices. Sec- tion 9 (a) 22 provides that the exclusive representatives of employees in a given unit shall be "designated or selected" by the majority of those employees-not, necessarily, elected by secret ballot and certified by the Board in proceedings under Section 9 (c).23 Section 8 (a) (5) of the Act requires employers to recognize and bargain with their- employees' representatives as defined in "the provisions of Section 9 (a) "-not only with representatives certified in proceedings under- Section 9 (c) .24 And for 13 years the Board has pointed out, in case- after case, that an employer acts at his peril if he refuses to bargain' with a union that duly proves its majority by means other than a cation In the latter situation , without fear of "stimulating collusion ," the Board has long adhered to the position that a contract good on its face will be presumed to have been validly executed unless and until a charge impugning its legality is filed, and the Board's investigative processes are thereby set in motion. 21 And, like Sections 9 (a), 8 (a ) ( 3), and 8 (a) (5), reenacted without pertinent change in 1947, after the Board-conducted election had become an institution. 22 This section provides, in pertinent part : "Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appro- priate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purpose of collective bargaining in respect to rates of pay, wages, hours of employment , or other conditions of employment : . . . 23 Similarly, Section 9 (e) of the Act, a 1947 innovation which provides for union-shop referenda , only requires that the labor organization petitioning for such a referendum be- "the representative of employees as provided in Section 9 (a)." And the proviso to Section 8 (a) (3) of the Act, which exempts certain union -shop contracts from the interdict against discrimination to encourage or discourage membership in a labor organiza- tion, only requires ( in addition to a referendum under Section 9 (e)) that the labor organization holding such a contract be: (1) unassisted by any employer unfair labor- practice, and (2 ) "the representative of the employees as provided in Section 9 (a)." 24 Section 8 (b) (3), which imposes a correlative duty upon unions, also incorporates bg reference Section 9 (a), but not Section 9 (c). "686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board election.25 Similarly, for the very purpose of encouraging voluntary collective bargaining pursuant to the statutory mandate, the Board long ago adopted its well-known policy of refusing to conduct an election and certify a new representative during the effective term of a valid collective bargaining contract between the employer and another bona fide representative.26 This policy of protecting existing -contracts against rival union petitions has never been dependent upon the contracting union's being elected and certified under Section 9 (c) of the Act. In my opinion, these are sound policies which should not be subverted in the interest of promoting elections under Board auspices-salutary as such elections are, in their proper place. As Member Gray and I remarked in our dissent in the Advance .Pattern case : "There are thousands of employers who have volun- tarily recognized and bargained with the representatives of their employees. The Act does not contemplate that collective bargain- ing under voluntary recognition shall not take place; that interven- tion by the Government is necessary for good collective bargaining. If an employer is willing to recognize a union, both may be happy to proceed to collective bargaining, as has happened in thousands of instances, without adding unnecessary cases to the Board's already heavy case load." I believe that we should not lose sight of the fact that, ideally, the Act should provide such an impetus toward col- lective bargaining that resort to its procedures will become unnecessary. MEMBER GRAY, concurring with MEMBER MURDOCK : The position of the majority seems to me to build a thick wall of legal reasoning as to why the Board must hold an election where collective bargaining is already an accomplished fact , if we are to protect that bargaining status with a Board certificate . It leads to the conclusion that collective bargaining is holier when the Govern- ment supervises part of it, than when the parties get along happily, together, within the law and without the Government. With Member Murdock, I believe that we should encourage every- where possible the voluntary getting together by employers and em- 25 Remington Rand, Inc, 2 N. L R. B . 626, enfd 94 F (2d) 862 ( C A. 2) ; Piqua Munising Wood Products Company, 7 N. L R B. 782, enfd. 109 F. (2d) 552 (C. A. 6) ; Dahlstrom Metallic Door Company, 11 N L. R B 408, enfd . 112 F (2d) 756 (C. A. 2) ; Heilig Bros . Company, 32 N. L. R. B . 505; Jupiter Steamship Company, 52 N. L. R B. 1437; Rockwood Stove Works, 63 N. L. R. B 1297 ; Harris-Woodson Company, Inc., 70 -N. L. R. B 956; enfd . 162 F. (2d) 97 ( C. A. 4) ; L B. Hartz Stores, 71 N. L R. B. 848; Pepsi-Cola Bottling Works of Montgomery, 72 N. L. R. B. 601; Wilson & Company, Inc, 77 N L R. B 959 20 See National Sugar Refining Company, 10 N. L. R. B. 1410 ; American Hair and Felt Company, 15 N. L. R. B. 572; Trailer Company of America, 51 N. L. R. B. 1106, 1109; Container Corporation of America, 61 N. L. R. B. 823, 826. GENERAL BOX COMPANY 687 ployees through representatives, entirely without calling upon this or any other agency. Most collective bargaining is between interested parties, apart from Government. A Board majority found itself free in Advance Pattern to ignore what Member Murdock and I regarded as the exact statutory man- date in Section 9 (c). With that freedom of interpretation avail- able to the Board, it would seem equally appropriate here to avoid time and money-wasting elections by investigating such requests for certification and the granting our legal blessing through a certificate to honorable collective agreements already existing and peaceably governing the work of the parties.