Baker Ice Machine Co., et al.

In the Matter of BAKER ICE MACH1NE COMPANY, ET AL., EMPLOYER and LOCAL NO. 250 OF THE UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY OF THE UNITED STATES AND CANADA, PETITIONER In the Matter Of REFRIGERATION ENGINEERING COMPANY, ET AL., EM- PLOYER and REFRIGERATION FITTERS PROTECTIVE ASSOCIATION, ALSO KNOWN AS LOCAL No. 508, PETITIONER Cases Nos. 21-RC-603 and 21-UA-811, respectively .Decided October 5, 1919 - DECISION ORDER AND DIRECTION OF ELECTION Upon petitions duly filed, a consolidated hearing was held in these cases before Ben Grodsky, hearing officer of the National Labor Rela- tions Board. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. The motion to dismiss the petition in Case No. 21-RC-603 made at the hearing by Refrigeration Fitters Protective Association and referred to the Board for decision, is denied for reasons stated hereinafter under paragraph numbered 3. 'Upon the entire record in these cases, the Board finds: 1. The Employers are engaged in commerce within the meaning or the National Labor Relations Act.' ' The Individual Employers In each case are : Baker Ice Machine Company, Los Angeles ; Coldew Corporation, South Gate, Calif. ; Modern Refrigerator Works , Glendale, Calif. Petersen Showcase & Fixture Co., Los Angeles ; Refrigeration Engineering Company, Los Angeles ; Dell Smith Manufacturing Co., Los Angeles ; Super-Cold Corporation, Los Angeles ; Vering Manufacturing Co., Los Angeles ; Vico Refrigeration Manufacturing Co., Eagle Rock, Calif. ; Ward Refrigeration & Manufacturing Co., Los Angeles ; Weber Showcase & Fixture Co ., Los Angeles ; and Anderson & Wagner, Inc., Los Angeles. - Following the removal of these cases to the Board for decision, Local 508 filed material in the form of a motion to sever the York Corporation from the proceedings on the ground that the York Corporation has withdrawn from the Employer's Association and is no longer represented in collective bargaining matters by the latter group. Pursuant to an Order to Show Cause, the Board , on September 6, 1949, issued an Order dismissing the instant petitions as to the York Corporation. - 86 N. L. R. B., No. 51. 385 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The Petitioners are labor organizations claiming to represent employees of the Employer.2 3. The question concerning representation : In 1946, the Employers signed a contract with the AFL Los Angeles Building and Construction Trades Council and its affiliated Local Craft 11n1ons.3 In the middle of 1947, this contract was extended by the parties and the termination date set at July 1, 1948. The Trades Council, at the time the contract of 1946 was negotiated,' consisted of the various craft groups which represented employees working in the Employers' shops. One of the signatory craft groups was Local Union No. 508, United Association of Plumbers, Steam Fitters and Refrig- ,eration Fitters of the United States and Canada. During the early -part of 1947, however, Local 508 voted to secede from the United As- sociation and organized "Refrigeration Fitters Protective Association, also known as Local 508." 4 In August 1947, the United Association suspended Local 508 and awarded its jurisdiction to a new union, Local 250. On April 15, 1948, Local 508 filed the petition in Case No. 21-UA- 811, seeking a union-authorization ballot in a multi-employer unit of refrigeration fabricators and apprentices. On April 29, Local 508 sent a notice to the Employers stating its desire to amend the contract of 1946 as extended. Meanwhile, on April 27, the Building Trades Council notified the Employer that it, also, desired to change the contract and added that it would not take part in negotiations to which Local 508 was a party. On May 4, the Employers acknowledged both communications and stated a desire to negotiate with Local 508 as to the refrigeration fabricatorss. On June 11, notices of the election pending in the UA case were sent to the parties named in that petition. Local 250 received no formal notice of the election. On June 15, Local 250 filed petitions for certification covering refrigeration fabricators employed by three of the Employers in single-employer units.5 Sev- eral days later, on June 17, Local 250 made a formal claim to the 2 Local 250 contended at the bearing that Local 508 is now defunct and that its mem- bership has become affiliated with Local No. 986 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. AFL. We find no merit in this contention. The record shows clearly that Local 508 is in present existence as an organization for the purposes of collective bargaining and claims to represent the employees of the Employer. 3 The Employers collectively comprise the "Refrigeration Manufacturers Association of Southern California," for purposes of contract negotiations in the field of collective bar- gaining. The Association conducts negotiations on a multi -employer unit basis through its executive secretary . A master contract Is signed first by the executive secretary and then by the individual Employers. There is apparently no delineation of the exact authority delegated to the Manufacturers Association or its officers by the Employer- members nor is there any provision as to whether or not action by the executive secretary must be ratified by the members. . 4 See Natter of fir Conditioning Company of Southern California, et al., 81. N. L. R. B. 946. 5 Cases Nos. 21-RC-376, 377, 378. BAKER ICE MACHINE COMPANY 387 Employers of successorship rights under the expiring contract. On June 18, the union-security authorization election was held and the ballots were impounded pending disposition of the petitions filed by Local 250. A short time thereafter, the Employer informed Local 250 that its claim to successorship under the contract could only be decided by judicial ruling or administrative directive. On July 1, Local 250 was notified by the Regional Director for the Twenty-first Region that its petitions for single-employer units had been dismissed because the units were inappropriate. This action was appealed to the Board by Local 250. Meanwhile, in July, the Employers and the Trades Council signed a new contract for all the crafts previously represented except the refrigeration fabricators. On September 28, 1948, the Board sustained the dismissal of Local 250's petitions. A week after notification of this action, Local 250 filed the petition in Case No. 21-RC-603, covering a multiple-employer unit. This petition and that in Case No. 21-UA-811 were then consolidated for purposes of hearing. Local 508 contends that the petition in Case No. 21-RC-603 should be dismissed on the ground that the election results in the UA election are conclusive, and it maintains that until these results are ascertained the Board has no jurisdiction to proceed with the representation case. It further argues that the petition in Case No. 21-RC-603 was prematurely filed, and ineffective to nullify the union- security election by raising a question concerning representation. Finally, Local 508 asserts , that Local 250 is guilty of lathes and purposeful delay. Local 250 contends that it was not given proper notice of the union- security petition and that a question concerning representation has existed since a time prior to the filing of the petition in Case No. 21-UA-811. The Employers take no position on any of the issues. We find no merit in the argument of Local 250 that it was not given proper notice of the union-security election or in its contention that a question concerning representation has existed since prior to that election. It was not until June 15, a date shortly before the election and after the parties had been formally notified, that Local 250 evinced any formal claim to represent any of the employees in- volved in that election.' It is the contention of Local 250 that the Trades Council's action in notifying the Employers that it would not participate in negotiations with Local 508 raised a question concern- ° Local 250 asserts, in its brief, that its participation in Matter of Air Conditioning Company of Southern California ., et al.. supra, put both Local 508 and the Employers on notice of its claim to bargaining rights for the refrigeration industry in that area. We do not agree and we find to the contrary . The mere participation in a companion case involving a different class of employees , a different employers ' association , and many different individual employers , does not constitute adequate notice of a claim to represent the employees involved in this case. 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing representation and placed the Employers on notice of a unit dispute as well as of Local 250's interest in the matter. But, as the Trades Council did not claim to represent the refrigeration fabri- cators, this argument, too, is without merit. The petitions for single- employer units involving three of the Employers, filed by Local 250 on June 15, 1948, were dismissed as requests for inappropriate units. As such they cannot be considered to have raised a question or ques- tions concerning representation within the meaning of the Act as of the time of the union-security referendum.? Although we find that no question concerning representation existed at the time of the election in Case No. 21-UA-811, we do not believe that any useful purpose would be served by the opening of the im- pounded ballots at this time. For the reasons explained below, the question decided in that referendum will. be moot unless and until the employees in the bargaining unit now decide to retain Local 508 as their bargaining representative. Therefore, we shall direct that the ballots remain in the custody of the Regional Director of the Twenty-first Region. The contention of Local 508 that the Board lacks jurisdiction in the representation case instituted by Local 250, because of the undisclosed results of the union-security election, is clearly without merit. There is no statutory bar to the entertainment of the petition in Case No. 21- RC-603. The Act prohibits the direction of two elections under Sec- tion 9 (c) or two elections under Section 9 (e) in the same bargaining unit within a 12-month period," but we have held that these restric- tions do not preclude the direction of both a union-security referendum and a representation election within 1 year's time.s The rationale of that interpretation of the relevant statutory provisions is not con- tested herein by the parties or by our dissenting colleagues. However, Local 508 maintains that the referendum conducted in Case No. 21- UA-811 was dispositive of Local 250's petition for an election of representatives, and our colleagues argue that under historic Board policy, we should decline to act on any petition for some reasonable period until Local 508 has had an opportunity to enjoy the "legitimate fruits," of its assumed victory in the referendum. These arguments P However, in view of the unique situation present by the facts herein and the vigorous prosecution by Local 250 of its claim that a question concerning representation Existed prior to the union-security referendum, we To not believe that the action of the Regional Director in impounding the ballots in Case No. 21-UA-Sll was unreasonable. Nor do we believe that the record shows ally laches or such delay on the part of Local 250 as to invalidate its petition. 8 Section 9 (c) (3) provides that No election shall be directed in any bargaining unit or subdivision within which, in the preceding twelve-month period, a valid election shall have been held." Section 9 (e) (3) dealing with union-security elections, provides that "No election shall be conducted pursuant to this subsection in any bargaining unit or any subdivision within which, in the preceding twelve-month period, a valid election shall have been held." See Matter of Gilchrist Timber Company, 76 N. L. R. B. 1233. BAKER ICE MACHINE COMPANY 389` are fallacious, in our opinion, for the precise reason emphasized in the dissenting opinion, i. e., that there was no question concerning rep- resentation at the time of the union authorization election, and it was not a question concerning representation which was resolved in that referendum. As dictated by Section 9 (e) of the Act, the only question submitted to the employees in the referendum was whether or not they desired to confer upon Local 508-which was then their acknowledged bargain- ing agent, as no interested party had effectively claimed otherwise- the specific authority to make a union-shop contract. The employees did not vote, and were not given the opportunity to vote, on the more fundamental question whether or not they desired to invest, or reinvest, Local 508 with the authority to represent them for the purposes of col- lective bargaining generally.10 Because its purpose was so limited, the election conducted last year in the Section 9 (e) case affords no proper basis for application of the Board's policy of protecting the status of certified representatives. This would be true even if we had ascer- tained and "certified" that a majority of the employees voted "yes" in the referendum. The Board's traditional policy of foreclosing ques- tions of representation for a year after a certification applies to certifi- cations issued in Section 9 (c) proceedings, in which employees exer- cise, under Board auspices, their basic statutory right to designate a bargaining representative. Once employees have enjoyed this oppor- tunity, there is ample justification, even aside from the statutory ban on two elections within a single year, for requiring them to abide by their choice for the period of time deemed reasonably necessary to achieve stabilized collective bargaining relationships.h1 But we can perceive no justification for denying employees the opportunity to vote on the issue of their representation merely because they have recently exercised their franchise as to an entirely different subsidiary issue. The employees in this case have not designated a bargaining represent- ative for several years; they have never, so far as the record shows, elected a bargaining representative under Board auspices. Assuming 10 Our dissenting colleagues seem to believe that the lesser authority to make a particular type of contract, which may have been given to Local 508 in the union-shop referendum, included the greater authority to serve as the exclusive bargaining agent of the employees in this unit for other purposes. In our opinion, this assumption is not only refuted by logic, but is also incompatible with the specific provisions of Section 9 (e), and the distinct place and function of that subsection in the statutory scheme. We think that Congress clearly intended, in distinguisling between the general authority to bargain and the special authority to make a union-security contract, to make the latter only supplementary to, and dependent upon, the former. Whether or not a union's authority to make a union-shop contract is "ephemeral," as our dissenting colleagues say, it cannot survive the dissipation of the union's basic authority as a statutory bargaining representative. n See, in addition to the case cited in footnote 14 of the dissenting opinion, Matter of Botany Worsted Mills. 41 N. L. It. B. 218, enfd. 133 F. 2d 876 (C. A. 3) ; Matter of Century Oxford Manufacturing Corporation,, 47 N. L. R. B. 835, enfd. 140 F. 2d 541 (C. A. 2) ; Matter of Appalachian Electric Power Company, 47 N. L. It. B. 821, enfd. 140 F. 2d 217 (C. A. 4). 867351-50-vol. 86 26 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that these employees did authorize Local 508 to make a particular kind of contract for them, in last year's union-shop referendum, it appears from Local 250's petition that they may now desire to change their bargaining agent. We believe that it is our clear duty, under Section 9 (c) of the Act, to resolve that question concerning the representation of these employees, which is before us in Case No. 21-RC-603. We shall, accordingly direct an election in which the employees may choose between Local 508, Local 250, and no union. We find that a question affecting commerce exists concerning the rep- resentation of employees of the Employers within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 4. The following employees of the Employers constitute a unit appropriate for purposes- of collective bargaining within the meaning of Section 9 (b) of the Act: All refrigeration fabricators, and their apprentices, in the shops of the Employers, excluding all other employees, and supervisors within the meaning of the Act. ORDER Upon the entire record in Case No. 21-UA-811, the National Labor Relations Board hereby orders that the ballots impounded in this case remain in the custody of the Regional Director for the Twenty-first Region until such time as the Board directs further action. 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 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 riot been rehired or re- instated 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 No. 250 of the United Association of Journeymen and Appren- tices of the Plumbing and Pipe Fitting Industry of the United States BAITER ICE MACHINE COMPANY 391 and Canada , or by Refrigeration Fitters Protective Association, also known as Local 508, or by neither. MEMBERS MMIuimocic and GRAY, dissenting : We cannot join in the decision of the majority to order an election of representatives in the face of a legitimate claim on the part of Local 508 to the protection of the Act and the established policies of the Board. In our opinion , the majority , by refusal to ascertain the results of the union-security election and to accord any weight to those re- sults, ignores both the equities of the parties and the intent of the Act. There is no dispute as to the facts of this case, but only a sober query as to whether the Board, through the conclusions of the majority, has not largely nullified the intent of Congress to provide labor organiza- tions with a measure of contractual security through the processes of Section 9 (e). Their decision rests upon the grounds that an election under Section 9 (e) does not bar an election under Section 9 (c) and that the latter should now be directed because of the conflict- ing claims of Local 250 and Local 508 as to representation of the employees. While there is no question that elections under both sections of the .Act may be held in the same 12-month period, the majority, in applying that settled doctrine to the instantI facts, mis- interprets its significance. Certainly the Board, in Matter of Gil- christ Timber Com. any,12 did not hold that representatives certified under Section 9 (c) or Section 9 (e) could be challenged at will. On the contrary, the decision in that case merely states that a representa- tion election will not necessarily bar a union-security petition filed several months later. The majority further holds that because Local 250 was not a party to the union-security election, the results of that election cannot be held to be conclusive as to the choice of the employees at the present time. This position evades the admitted fact that Local 250 was not a party to the election because at that time it did not have a claim of representation . The import of the majority decision, therefore, is that the legitimate fruits of victory in an election under Section 9 (e) may be denied a union through the opportunistic tactics of a rival organization which, at the time of that election, had no color of claim to representation of the employees involved. Our colleagues agree that clearly no question concerning representation existed at the time of the union-security election ; in fact the Board had to so find before authorizing it. As the legality of that election was not challenged except upon that ground, it is equally clear that the impounded ballots should have been opened and tabulated. Paradoxically, the majority, 12 See footnote 9, supra. 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD upon finding that there is no merit to the contention that the election! was void, blithely wipes the slate clean on the grounds that to open the ballots at this time would serve no useful purpose. It is sub- mitted that this does violence to the plain intent of Section 9 (e) and the Board's repeated affirmations of the importance of stability in bargaining relationships. The majority opinion, by refusal to open the impounded ballots,. in effect, holds that an organization which wins an election under Section 9 (e) gains no rights or protection other than an ephemeral authority to negotiate a union-security contract. The incongruity of this position in the light of the intent of the statute and the often. enunciated policies of this Board, is easily seen. The Board has, as a matter of long standing precedent, held that a union certified as the representative of employees has a period of 1 year in which it may attempt to secure a contract without being harassed by the claims of other organizations.13 The rationale for this period of protection IS clear. "When employees resort to the administrative processes of the• Act, it is only reasonable to require that the resultant registering of their choice of a bargaining agent not be made subject to immediate- or capricious changes in sentiment. To hold otherwise would not only subject the Board to undue administrative difficulties, but would lead to the establishment of conditions destructive of stability in labor relations." 14 Yet our colleagues would deny this same period or any reasonable period of protected stability to victors in a union-security election even though, in Section 9 (e), Congress made unmistakable- its intent to restrict benefits thereunder to unions whose majority status= was unquestioned. Thus, a petitioner under Section 9 (e) must allege and make an appropriate showing thereof, that 30 percent of the em- ployees in the unit desire the requested authorization. Further, under the provisions of Section 8 (a) (3), the authorization can be granted only upon the affirmative vote of a majority of those eligible to partici- pate in the election, not merely a majority of those voting as required. by Section 9 (e). To deny protection to a representative thus reaf- firmed is to take the position that compliance with the more rigorous. provisions of Section 9 (e) makes ,,t victorious union's majority support. more questionable. Section 9 (e) states flatly that, upon a petitioner's compliance with the prerequisites noted above, "the Board shall, if no question of repre- sentation exists, take a secret ballot of such employees, and shall certify the results thereof to such labor organization and to the employer."' (Emphasis supplied.) The majority opinion offers no adequate jus-- " See Matter of Con P. Curran Printing Company, 67 N. L. R. B. 1419 and cases cited' therein. 14 Matter of Bohn Aluminum and Brass Corporation (Plant #13 and Magnesium- Fabricators), 57 N. L. R. B. 1684, 1686. BAKER ICE MACHINE COMPANY 393 tification for the refusal of the Board to perform this unqualified mandate, but, by giving retroactive protection to this present claim of Local 250, effectively deprives Local 508 of a substantial right extant at a time when the rival claim was only a gleam in an organizer's eye. The action of the majority in ordering the representation election despite the Board's failure to perform its statutory duty and despite its prior policy of encouraging bargaining stability, adds confusion and doubt to the status of a successful petitioner under Section 9 (e). It is a reasonable assumption that Local 508 procured a majority of the -eligible voters in the union-security election.15 If the result of the election now directed by our colleagues shows that Local 508 has lost that majority, the defection is attributable to the actions of the Board and the dilatory tactics of Local 250. If such a loss of majority .support by Local 508 had resulted from the machinations of an em- ployer, the Board would be unanimous in its protest. It is our considered opinion that the decision of the majority consti- tutes a branch of the statute and of Board Policy. For those reasons, we dissent herein. 15 Although, of course, it cannot be determined whether Local 508 actually won the UA -election without counting the ballots, the overwhelming statistical odds would indicate that it did secure a majority of eligible voters, since 96 percent of the union -security ,elections held in the last fiscal year resulted in a union victory.