Monroe Co-operative Oil Co.

In the Matter Of MONROE CO-OPERATIVE OIL COMPANY, EMPLOYER and HOWARD A. VENZKE, PETITIONER and LOCAL 299, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL, UNION In the Matter Of MONROE CO-OPERATIVE OIL COMPANY, EMPLOYER and UNITED BREWERY, FLOUR, CEREAL, SOFT DRINK AND DISTILLERY WORKERS OF AMERICA, CIO, PETITIONER Cases Nos. 7-RD-5O and 7-RC-580, respectively.Decided September 23, 1949 DECISION AND DIRECTION OF ELECTION Upon separate petitions for decertification and certification duly filed, a consolidated hearing was held before Harold L. Hudson, hear- ing officer. 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 Petitioner in the decertification case, an employee of the Employer, asserts that Local 299, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, AFL, here- in called Local 299, is no longer the bargaining representative of the Employer's employees within the meaning of Section 9 (a) of the Act. United Brewery, Flour, Cereal, Soft Drink & Distillery Workers of America, CIO, herein called Brewery Workers, is a labor organization claiming to represent certain employees of the Employer. 3. Questions affecting commerce exist concerning the representation of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 1 At the hearing, Local 299, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America , AFL, moved to intervene in this proceeding. Without objection the motion was granted. 86 N. L. R. B., No. 20. 95 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On April 19, 1949, the Petitioner filed a petition for decertification in Case No. 7-RD-50. Two days later, on April 21, 1949, the Em- ployer and Local No. 299 executed a collective bargaining agreement for 1 year, retroactive to November 1, 1948, and thereafter automati- cally renewable from year to year.2 Subsequently, on June 3, 1949, Brewery Workers filed their petition for certification of representa- tives in Case No. 7-RC-580. Local 299 apparently contends that the contract is a bar to both the RD and RC petitions. Our dissenting colleagues would hold that the Employer's recognition of Local 299 should operate to bar a petition for 1 year exactly as though a Board certification had issued. Therefore they would find a contract signed within that first year, regardless of the pendency of a prior petition, to be a bar for its term. They assert that the majority is penalizing Local 299 for its with- drawal of the petition in the earlier Case No. 7-RC-75 because of the Employer's voluntary recognition; is discouraging voluntary collec- tive bargaining between employers and unions; and is insisting that unions submit to Government intervention in order to-achieve success- ful collective bargaining. Such is not our intention. All we are saying is that a union and an employer who have a relationship based only upon voluntary recognition must bring that recognition to frui- tion by a timely collective bargaining agreement, if they are to expect this Board to honor it as a bar to a petition by others. What our colleagues in effect propose is certification based on mere recognition. We cannot agree to such dilution of the special effect of Board action following an election by secret ballot. As we said in the General Box case, when the same dissenters proposed that the peti- tioner there be certified without an election,3 "... such a procedure might well stimulate collusion and raise more problems than it would solve. . . ." Moreover, as we further said, "Employers and unions do not require Board certification as a prerequisite to collective bar- gaining if recognition of a majority representative suffices for their purposes. But if a certification is deemed desirable because of its special advantages, the use of the ballot box is not too high a price to pay. " Our dissenting colleagues also suggest that the fact that Local 299 won a union-authorization election after its recognition by the Em- ployer buttresses their view. We cannot agree. The purpose of the 2 The agreement 's execution was the result of negotiations commenced after the filing of a petition by Local 299 in an earlier case ( Case No. 7-RC-75 ), and the withdrawal thereof as the result of recognition of its majority status by the Employer on April 28, 1948. Subsequently, Local 299 filed a petition for union -shop authorization. As a re- sult of a consent union -shop election conducted and won by it on July 13, 1948 , the Union ultimately negotiated the April 1949 agreement now urged as a bar. 8 82 N. L. It. B. 678, Members Murdock and Gray concurred specially. MONROE CO-OPERATIVE OIL COMPANY 97 two types of elections are widely different. We have already held that the 1-year rule regarding elections 4 is not applicable to them taken together.5 The provisions for the conduct of these elections are not only physically separated in the statute, but the issues before the voters, the ends to be achieved, and the conditions precedent to con- ducting them are entirely different. With regard to Case No. 7-RD-50, we have frequently held that a contract executed after the filing of a timely petition does not con' stitute a bar.6 Similarly we find that, as the petition in the RD case raised a timely question concerning representation, which was unre- solved when the RC petition was filed, the contract does not constitute. a bar to the RC petition.? As the questions of representation involved in Cases Nos. 7-RD-50 and 7-RC-580 can best be resolved in a single election, we shall not direct separate elections. 4. We find that the following employees of the Employer at its Monroe, Michigan, plant, constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act : All employees of the Employer's beverage department, excluding office and clerical employees, guards, and supervisors as defined in the Act. DIRECTION OF ELECTION 8 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 supervision of the Regional Director for the Region in which this 4 Section 9 (c) (3), and Section 9 (e) (3) of the Act. 5 Matter of Gilchrist Timber Company, 76 N. L. R. B. 1233 , where the Board held that a union-authorization election could properly be held within 12 months of one to select a bargaining representative. 6 Matter of Mathieson Chemical Corporation, 81 N. L. R. B. 1355 ; Matter of New York and Pennsylvania Company, Inc., 81 N. L. R. B. 1326; Matter of Sprague Electric Com- pany, 81 N. L. R. B. 410 ; Matter of C. A. Swanson and Sons , 81 N. L . R. B. 321 ; Matter of International Harvester Company ( Fort Wayne, Indiana, Plant), 80 N. L. R . B. 1451. 7 Matter of Humble Oil & Refining Company, 53 N. L. R. B. 116, 119 ; ef. Matter of ' Merchants Refrigerating Company, 78 N. L. R. B. 528 , in which a timely RC petition was withdrawn and we dismissed an RD petition filed after the automatic renewal data of the contract , on the ground that the withdrawn petition no longer raised a question concerning representation, and the renewed contract constituted a bar to the subsequent untimely petition. Although a letter written by the Petitioner in Case No. 7-RD-50 was submitted in evidence requesting the withdrawal of the petition in that case , at the hearing the Petitioner stated that the employees desired that an election be held in that proceeding . Accordingly, we find that the question concerning representation raised by the RD petition remains pending. 8 Either participant in the election herein may , upon its prompt request to , and approval thereof by, the Regional Director, have its name removed from the ballot. 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD case was heard, and subject to Sections 203.61 and 203.62 of National Labor Relations Board Rules and Regulations , 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 rein- stated prior to the date of the election , and also excluding employees on strike who are not entitled to reinstatement , to determine whether they desire to be represented , for purposes of collective bargaining, by Local 299, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL; or by United Brewery, Flour, Cereal, Soft Drink & Distillery Workers of America; or by neither. MEMBERS MuxnocK and GRAY, dissenting : In our opinion, the decision of the majority refusing to hold Local 299's contract to be a bar, and directing an election in this proceeding, is unjust to Local 299 and a blow to voluntary collective bargaining and stable labor relations. Shortly before April 28 , 1948, Local 299 filed a petition for certifi- cation as bargaining representative of the employees in the Employer's beverage department. On that date the Employer granted recognition in writing to Local 299 . Local 299 thereupon withdrew its represen- tation petition, and a month later filed a petition for authorization to negotiate a union-security contract . Pursuant to this petition the Regional Director conducted a UA election on July 13 , 1948, as a re- sult of which a certificate of authority to negotiate for a union-security contract was issued to Local 299. The Union and the Employer there- after negotiated a contract, retroactive to November 1, .1948, on which agreement was apparently reached in December 1948, but for some reason it was not actually signed until April 21, 1949. The execution of the contract was within 1 year of recognition of the Union by the Employer on April 28, 1948; it was 2 days .after the decertification petition herein was filed, and several weeks prior to the filing of the petition for certification by Brewery Workers. On the foregoing facts we would hold that Local 299 was entitled to protection from rival petitions for a period of 1 year from the date it was recognized as collective bargaining representative by the Em- ployer on April 28, 1948; and that the contract executed by the Em- ployer and Local 299 on April 21, 1949, within the 1-year period, accordingly stands as a bar to the decertification and rival petition MONROE CO-OPERATIVE OIL COMPANY 99 .before us in this proceeding. This result would indisputably follow under well-established principles if Local 299 had proceeded with its original petition for certification to the certification stage. But be- cause the Employer voluntarily recognized Local 299's representative status and Local 299 withdrew its petition, sparing the Board expense and trouble of conducting an election to establish the existence of a fact which the parties recognized, our majority colleagues now penal- ize Local 299 by refusing to accord it a protected period in which to exercise its representative status. In other words, this is one more situation in which our majority colleagues make a decision which necessarily operates to discourage voluntary collective bargaining and to force employers and unions to submit to Government interven- tion in order to achieve successful collective bargaining. But as we have had occasion to point out previously,9 "There are thousands of employers who have voluntarily recognized and bargained with repre- sentatives of their employees. The Act does not contemplate that collective bargaining under voluntary recognition shall not take place, that intervention by the government is necessary to good collec- tive bargaining." Indeed, for the very purpose of encouraging volun- tary collective bargaining the Board long ago adopted its well known policy of refusing to conduct an election and certify a new representa- tive during the effective term of a valid collective bargaining contract even though the contracting union thus accorded protection from rival petitions is a voluntarily recognized representative and has not been elected and certified by the Board under Section 9 (c). We perceive no valid reason why a voluntarily recognized union is any the less en- titled to protection of its status for a reasonable period before achiev- ing a contract than it is accorded after it has obtained a contract; nor do our majority colleagues give any reason. The only argument made against according such protection is that the Board cannot be sure that a voluntary recognition is free from collusion; therefore it should not extend the same protection to voluntarily recognized representative status as it does to unions certified after an election. But if that is to be the controlling consideration, then the Board logically should with- draw its contract bar protection accorded to voluntarily recognized unions. For the mere making of a contract adds absolutely nothing to show the bona fide character of the voluntary recognition. Indeed, hasty entry into a contract is a common element in many of the cases in which the Board has found employer domination of labor organiza- tions in violation of Section 8 (2) of the Act. 'Matter of Advance Pattern Co., 80 N, L. It. B. 29, dissenting opinion. See also our dissenting opinions in Matter of General Box Company, 82 N. L. It. B. 678. 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It may also be noted that in the case at hand we have convincing evidence of the bona fide character of the voluntary recognition which should be of far greater significance than the mere making of a con- tract. Three months after the voluntary recognition, a majority of the employees in the unit (not simply of those voting) voted in a Board-conducted secret ballot election to authorize Local 299 to make a union-security contract. We submit that this partakes of the char- acter of a reaffirmation of their choice of Local 299 as their bargaining representative. It is wholly unrealistic not to recognize that em- ployees would not vote to confer authority on their representative to bind them to a union-shop contract if they did not want representa- tion by such union.10 Yet our majority colleagues refuse to recognize this fact and adhere to a decision which operates to subvert a policy of encouraging stable voluntary collective bargaining in favor of pro- moting elections under Board auspices. 10 See our dissent in Baker Ice Machine Company, 86 N. L . R. B. 385 , in which we object to the refusal of the majority to recognize any protected period in which authoriza- tion to negotiate a union-security contract may be exercised after being granted.