J. I. Case Co.

In the Matter of J . I. CASE COMPANY and INTERNATIONAL UNION7 -UNITED AUTOMOBILE, AIRCRAFT, AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW-CIO) Case No. 10-CA-058.-Decided December 16, 1949 DECISION AND ORDER Upon a charge filed on March 10, 1949, by International Union, United Automobile, Aircraft, and Agricultural Implement Workers of America (UAW-CIO), herein called the Union, the General Coun- sel of the National Labor Relations Board, herein called the General Counsel, by the Regional Director for the Tenth Region, issued a com- plaint dated May 23, 1949, against J. I. Case Company, herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (a) (1) and (5) and Section 2 (6) and (7) of the Labor Management Relations Act, 1947, herein called the Act. Copies of the complaint, the charges, and notice of hearing were duly served upon the Respondent and the Union. With respect to the unfair labor practices, the complaint alleges in substance that on or about March 7 and 8, 1949, and at all times thereafter the Respondent refused to bargain collectively with the Union as the exclusive representative of its employees in an appro- priate unit, although the Union had been certified by the Board as the representative of the employees in such unit. On or about June 6, 1949, the Respondent filed an answer, alleging that the certification of the Union in this case was invalid. The Respondent also filed a brief contending that the complaint should be dismissed for various reasons, which are discussed in detail below. I Thereafter, desiring to avoid the need for a hearing, all the parties entered into a stipulation, which set forth an agreed statement of facts. The stipulation provides (1) that the parties have waived their right to a hearing before a Trial Examiner and before the Board or a member thereof, to the preparation and filing of an Intermediate 87 NLRB No. 99. 692 J. I. CASE COMPANY 693 Report and Recommended Order, and to the making and issuance by the Board of proposed findings of fact and conclusions of law; (2) that the parties reserve their right to file briefs and argue orally before the Board; (3) that the Board, without further notice to the parties, may issue a Decision and Order based upon the stipulation and the record described in the stipulation; and (4) that the charge, com- plaint, notice of hearing, order 'indefinitely postponing hearing, the Respondent's answer, the stipulation, certain exhibits attached to the stipulation, and the entire record 1 in the earlier representation pro- ceeding, noted above, shall constitute the entire record in this case and may be filed with the Board in Washington, D. C. The stipula- tion has been accepted and made a part of the record herein, and, in accordance with Section 203.51 of National Labor Relations Board Rules and Regulations, the proceeding is hereby transferred to, and continued before, the Board. Upon the basis of the aforesaid stipulation and the entire record in the case, the Board 2 makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT J. I. Case Company, a Wisconsin corporation, operates a plant at Anniston, Alabama, where it manufactures, sells, and distributes power-drawn tillage implements. During the year ending May 1, 1949, the Respondent purchased for its Anniston plant raw materials valued in excess of $1,000,000, approximately 75 percent of which was shipped from points outside Alabama. During the same period the Respondent manufactured at its Anniston plant fin- -ished products, consisting principally of power-drawn tillage imple- ments, valued in excess of $1,000,000, approximately 75 percent of which was sold and shipped to customers outside the. State of Alabama. The Respondent admits, and we find, that it is engaged in commerce within the meaning of the Act. 'The parties stipulated in this connection that the following portions of the record in the representation case be incorporated in the record in this case : the official report of pro- ceedings, the exhibits received by the hearing officer , the Respondent 's Motion for Dis- closure of Matters of Record, its Supplement to Motion to Dismiss , its brief filed on or about July 23, 1948 , the Board 's Order Denying Motion of December 16, 1948 , the Board's Decision and Direction of Elections , and the Board 's Supplemental Decision and Certifica- tion of Representatives. 2 Pursuant to the provisions of Section 3 (b) of the Act , as amended , the National Labor Relations Board has delegated its powers in connection with this proceeding to a three- member panel [ Chairman Herzog and Members Houston and Gray]. 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE ORGANIZATION INVOLVED International Union, United Automobile, Aircraft, and Agricul- tural Implement Workers of America (UAW-CIO) is a labor organi- zation within the meaning of Section 2 (5) of the Act. III. THE REFUSAL TO BARGAIN A. The appropriate unit and the Union's majority representation herein . On February 2, 1948, the Union filed a petition seeking certification as the representative of the Respondent's employees at its Anniston plant. Within the next few days petitions were filed by three other unions, . each seeking to represent a portion.of the plant-wide unit proposed by the Union. A consolidated hearing was held upon these petitions, and on November 9, 1948, the Board issued a Decision and Direction of Elections,3 in which it directed separate self -determina- tion, or "Globe," elections in four voting groups. In the election for each group the Board placed on the ballot the Union, and the other labor organization seeking to represent such group as a separate unit. As a result of these elections and a subsequent run-off election, the Board 4 certified the Union for one of the four voting groups, in a Supplemental Decision and Certification of Representatives.' . In its brief filed with the Board in the present case, the Respondent attacks the validity of the Board's certifications First, the Respond- 8 80 NLRB 217. 4 Member Murdock dissented. s The group for which the Union was certified , hereinafter called Group 3, consisting of foundry workers, had been sought as a separate 'unit by International Molders and Foundry Workers Union of North America, AFL, hereinafter called the Molders. The election in another of the four voting groups was won by the International Association of Machinists . In the remaining two groups, the majority voted for no union. 81 NLRB 969. In addition to the contentions hereinafter discussed ,. the Respondent renewed several Procedural objections which had been considered and rejected by the Board in our original Decision and Direction of Elections herein. These include : (1) The contention that the Board had no authority to certify the Union because its petition did not allege , and the record of the hearing does not show, that the Re- spondent had declined to recognize the Union as the representative of its employees.. This contention was rejected in the earlier proceeding herein on the authority of Advance Pattern Company, 80 NLRB 29 . This ruling is re-affirmed on the same ground. Moreover , the election in Group 3 was not based on the Union 's petition :alone , but also on the petition of the Molders , which sought to represent Group 3 as a separate unit. Accordingly , even if the Union's petition were defective for the reasons alleged , the election could still have been validly predicated on the Molders' ,petition , the Union being treated as merely an intervenor in the proceeding on the .Molders ' petition. (2) The contention that the Board had no, authority to conduct the election and certify the Union because the record of the hearing in the representation case did -not show that the Union (or any other participating labor organization) had been designated as bargaining representative by a substantial number of the Respondent's ,employees . In re-affirming our rejection of this contention , we rely on the following J. I. CASE COMPANY 695 ent contends that the certification of the Union for the employees in Group 3 is void because issued in violation of Section 9 (b). Section 9 (b) provides that, in deciding the appropriate unit, the Board shall act "to assure to employees the fullest freedom in exercis- ing the rights guaranteed by" the Act. The Respondent urges that one of these rights is the right to refrain from collective bargaining; that our prior action in directing a Globe election for Group 3 reflected a finding that employee preference in regard to bargaining or refrain ing from bargaining in it Group 3 unit would be the controlling factor in the final determination of the appropriateness of such a unit; that the vote against the Molders and for the Union in Group 3 unequivo- cally indicated that the employees did not wish to bargain in such a unit; that when the Board, in disregard of this choice, found a Group 3 unit to be appropriate, it violated its duty under Section 9 (b)• to assure to employees the fullest freedom in the exercise of their right to refrain from collective bargaining. We are unable to agree with the Respondent's assumption, stated above, that the vote in Group 3 for the Union and against the Molders, reasonably construed, constitutes an expression of a desire to refrain altogether from bargaining in a Group 3 unit. In our original Decision a and Direction of Elections, we found that certain groups of the Re- spondent's employees, including Group 3, might, if the employees in each such group so desired, constitute a separate bargaining unit. Accordingly, pursuant to our practice in such cases, we postponed a final unit determination pending the outcome of separate elections among the employees in such groups, placing on the ballot in each such election (1) the labor organization which had petitioned for the right to represent the particular group as a separate unit (in the case of Group 3, the Molders) and (2) the Union, which had asked for a plant-wide unit. In so doing, we stated : "If in these elections a majority of the employees in any of the voting groups votes for the Petitioner seeking to represent such group, they will be taken to have indicated their desire to constitute a separate appropriate bargaining unit." cases, in addition to those cited in our Decision and Direction of Elections : 0. D. Jennings <E Company, 68 NLRB 516; Lion Oil Company, 76, NLRB 565; Colonial Hardwood Flooring Co., Inc., 76 NLRB 1039; N. L. R. B. v. May Department Stores Co., 146 F. 2d 66 (C. A. 8), aff'd 326 U. S. 376. We hold, in line with the foregoing cases, that the question of a petitioner's showing of interest is one for administrative determination by the Board and is therefore not properly a litigable issue. (3) The contention that, in refusing to disclose to the Respondent the report of its Field Examiner, the Board violated Section 9 (c) (1) of the Act. This contention; like the preceding ones, assumes a legal right to litigate a petitioner's showing of interest and the question whether it has been denied recognition by the employer. For reasons indicated in the cases cited above in this footnote, we find no merit in this position. 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD By this, we meant that a vote for the Molders in Group 3, for example, would be taken to indicate a desire on the part of the employees in that group not only to bargain through the Molders but also to bargain as a separate unit. We did not state, however, that a vote for the Union in any of the groups would be construed as a vote against separate rep- resentation. On the contrary; we refrained from indicating in advance what effect we would give to a vote for the Union in determining the scope of the unit, reserving judgment on this point until we had an opportunity to appraise the effect of such a vote in the light of all the pertinent circumstances. The Respondent would now have us construe the vote of the majority in Group 3 for the Union as a vote against separate representation. This contention overlooks the fact that the vote for the Union was an affirmative, not a negative , vote. Accordingly , our first inquiry was concerned with what the majority in Group 3 voted for, rather than what they voted against. There could be no quarrel with the view that a vote for the Union, at least in its ultimate effect, would be a. vote against separate repre- sentation, in the case of the usual self-determination election, held for the purpose of determining whether a particular group of employees should be added to, or subtracted from, an established plant-wide unit represented by an incumbent union. A vote for the incumbent union in such a case would be a vote for inclusion in the established plant- wide unit, and, therefore, of necessity , a vote against separate repre- sentation in the smaller unit. However, in the present case, separate self-determination elections were held in several voting groups com- prising all the production and maintenance employees in a plant in which there was no established unit. In voting for the Union under these circumstances the employees in each group could not know in advance in which one of the other groups, if any, the Union would be successful ; and, so, a vote for the Union could not be interpreted as a vote for inclusion in any particular unit. Such a vote, reasonably construed , constitutes an expression of a desire for a unit comprising all the voting groups in which the Union might eventually win in the elections. In our opinion, that is what the majority in Group 3 voted for-not for a predetermined plant-wide unit which precluded separate bargaining in a smaller unit, but for a unit, the precise outline of which could not be determined until all the votes were counted, and which might conceivably consist of a single voting group if no other group voted for the Union . Accordingly, we are not required to interpret the outcome of the election in Group 3 as a vote against the establish- ment of that group as a separate unit. J. I.. CASE COMPANY 697 Moreover, the Respondent would have us find, notwithstanding that the majority in Group 3 voted for collective bargaining through the Union and rejected the "no-union" choice on the ballot, .that the majority in Group 3, rather than bargain in a Group 3 unit, would prefer not to bargain at all under the protection of the Act. Such a view wholly ignores the realities of the situation, of which we were fully cognizant in construing the result of the election in Group 3, including the rejection of "no union," as indicating a preference for bargaining even in the limited Group 3 unit, as against no bargaining at all under the Act. Under these circumstances we believe that, in granting bargaining rights to the Group 3 employees in a separate unit when the only alternative would be to deprive them of such rights under the Act altogether, we are effectuating, rather than frustrating, the desires of those employees as expressed in the election. For all of the foregoing reasons, we reject the Respondent's con- tention that the certification of the Union was inconsistent with the guarantee of freedom of choice in Section 9 (b). The Respondent also attacks the validity of the Board's certifica- tion on the asserted.ground that the unit determination violated Sec- tion 9 (c) (5) of the Act. Section 9 (c) (5) provides: In determining whether a unit is appropriate for the purposes specified in subsection (b), the extent to which the employees have organized shall not be controlling. In support of its contention, the Respondent cites footnote 3 in the afore-mentioned Supplemental Decision and Certification of Repre- sentatives.7 The Respondent refers particularly to the statement in this footnote that the Union would be certified as the representative of the employees in Group 3 "since there is no other group repre- sented by the [Union] in which such employees may be included." This statement is construed by the Respondent as an admission that extent of organization was the controlling, if not the only, factor considered by the Board in determining that Group 3 was an appropriate unit. In our original Decision and Direction of Election, the Group 3 employees were established as a separate voting group for reasons 7 This footnote reads : Although the UAW-CIO has not petitioned for a separate unit of foundry workers, since a majority of the valid votes cast in this group were in favor of the UAW-CIO as against the petitioning union or no union , we conclude that the employees in this group desire to be represented at this time for purposes of collective bargaining. Accordingly, since there is no other group represented by the UAWW-CIO in which such employees may_ be included , we shall certify the UAW-CIO as the exclusive bargaining representative of all the employees in this group as a separate bargaining unit. 698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other than "extent of organization." These reasons consisted of the fact that this group comprised foundry workers, whom the Board has traditionally found appropriate for purposes of collective bargaining, as well as the long history of separate collective bargaining by this group. In making a final determination that this group constituted an appropriate unit, we relied, as already indicated, on the outcome of the election in that group,* including the rejection of the "no union" choice, as indicating a majority preference for bargaining in that unit as against no bargaining rights under the Act. These were the considerations to which we referred in footnote 3 of our Supplemental Decision and Certification. In there stating that we were certifying the Union for a separate Group 3 unit because there was no other group represented by the Union in which the Group 3 employees might be included, we merely stressed the fact that the Board was employing the only available means to give effect to the manifest desire of the majority of the Group 3 employees for collective bar- gaining, as indicated by the election results. We were not, as the Respondent contends, "accommodating the unit finding to the UAW's unsuccessful efforts to organize the plant"; we were rather accommo- dating the unit finding to the desires of the employees in Group 3 for collective bargaining, as expressed in a Board-conducted election. To the extent that the Respondent's contention assumes that Sec- tion 9 (c) (5) precludes the Board from basing a unit determination on the desires of the employees, as expressed in a self -determination election, or on a union's success or lack of success in such an election, such assumption has no support in the Act or in the legislative history of Section 9 (c) (5). There is clear sanction in the amended Act for self-determination elections." Accordingly, in interdicting the use of "extent of organi- zation" as a controlling factor in unit determinations, Congress in our opinion could have had reference only to the former practice of the Board, in making pre-election determinations of the scope of a unit or voting group, of occasionally giving controlling weight to-the extent to which a petitioner had organized such unit or group, as shown by evidence presented to the Board at the hearing on the peti- tion.9 As already stated, the Board in the present case did not give 8 Subsections 9 (b) (1) and ( 2) of the amended Act, for example , assume that the Board may , and, indeed , in certain cases require the Board to, conduct self -determination elections for professional and craft groups. I e See House Rep. No. 245, 80th Cong ., 1st Sess., p. 37 ; 93 Cong. Rec. 7002 ( June 12, 1947 ). This was usually done before 1947 , moreover , in cases where a more comprehensive unit would have been found appropriate under Board precedents , but representation claims were made only as to a smaller group or groups within such unit. In such cases, the Board sometimes found the employees in the smaller group to be an appropriate unit "so that collective bargaining might start for these employees without waiting until more employees might be organized into a larger unit ." May Department Stores Co. V. J. I. CASE COMPANY 699 any consideration to extent of organization, in this sense, in its pre-election determination that Group 3 might constitute a separate unit, if the employees so desired. Insofar as the Board, in finally establishing the Group 3 unit, relied on the extent of the Union's success or lack of success in the election, such reliance was not, there- fore, barred by Section 9 (c) (5) of the Act, but was consistent with the principle, of self-determination in "Globe elections," 10 approved by the Act. The Respondent's contention that our unit finding violates Section 9 (c) (5) is therefore rejected as without merit. Conclusion We. therefore reaffirm our previous unit determination and find that all employees at the Respondent's Anniston, Alabama, plant, working in the foundry, Department 0, the core room, Department P, the cleaning room, Department N, the material storage room, Department Q, including two inspectors permanently assigned to Departments 0 and N, but excluding clerical employees, timekeepers, watchmen, guards, professional employees, and supervisors, and all other em- ployees of the Employer at its Anniston, Alabama, plant constitute a unit appropriate for purposes of collective bargaining. We also find that, as a result of the elections held pursuant to the Decision and Direction of Elections, and the subsequent run-off elec- tion, the Union was validly certified on February 25, 1949, as, and has at all times thereafter been, the exclusive bargaining representative of all the employees in the above unit for the purposes of collective bar- gaining with respect to rates of pay, wages, hours, and other conditions of employment. B. The refusal to bargain The Respondent admits, and we find, that on or about March 8, 1949, it rejected the Union's request for a bargaining conference on the ground that the certification of the Union as the representative of the Group 3 employees was invalid. We find that the Respondent, on or or about March 8, 1949, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of em- ployees of : the Respondent in an appropriate unit, in violation of Section 8 (a) (5) and (1) of the Act. N. L. R. B., 326 U . S. 376 , 379-80. However, in the present case, a representation claim was in fact made for the more comprehensive plant -wide unit as well as for the smaller units. Accordingly , it is clear for this reason, as well, that the present case did not in- volve the application of the extent -of-organization doctrine to which Section 9 (c) (5) refers. 11 See The Globe Machine and Stamping Co., 3 NLRB 294. 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES The activities of the Respondent set forth in Section III, above, occurring in connection with its operations as described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor dis- putes burdening and obstructing commerce. V. THE. REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order that it cease and desist therefrom and that it take certain affirmative action which will effectuate the policies of the Act. Upon the basis of the above findings of fact and upon the entire record in this case, the Board makes the following: CONCLUSIONS OF LAW 1. International Union, United Automobile, Aircraft, and Agricul- tural Implement Workers of America (UAW-CIO) is a labor organi- zation within the meaning of Section 2 (5) of the Act. 2. All employees at the Respondent's Anniston, Alabama, plant, working in the foundry, Department 0, the core room, Department P, the cleaning roomy Department N, the material storage room, Depart- ment Q, including two inspectors permanently assigned to Depart- ments 0 and N, but excluding clerical employees, timekeepers, watch- men, guards, professional employees, and supervisors, and all other employees of the Employer, constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9 (b) of the Act. 3. International Union, United Automobile, Aircraft, and Agricul- tural Implement Workers of America (UAW-CIO) was on February 25, 1949, certified as, and has at all times thereafter been, the exclusive representative of all employees in the aforesaid unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 4. By refusing on March 8, 1949, and at all times thereafter, to bargain collectively with International Union, United Automobile, Aircraft, and Agricultural Implement Workers of America (UAW- CIO) as the exclusive representative of all employees in the aforesaid appropriate unit, the Respondent has engaged in, and is engaging in, unfair labor practices, within the meaning of Section 8 (a) (5) of the Act. J. I. CASE COMPANY 701 5. By interfering with, restraining, and coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act, the Respondent has engaged and is engaging in unfair labor practices, within the meaning of Section 8 (a) (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of of the Act. ORDER Upon the entire record in the case and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, J. I. Case Com- pany, Anniston, Alabama, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with International Union, United Automobile, Aircraft, and Agricultural Implement Workers of America (UAW-CIO) as the exclusive representative of all em- ployees at the Respondent's Anniston, Alabama, plant, working in the foundry, Department 0, the core room, Department P, the clean- ing room, Department N, the material storage room, Department Q, including two inspectors permanently assigned to Departments 0 and N, but excluding clerical employees, timekeepers, watchmen, guards, professional employees, and supervisors, and all other employees of the Employer; (b) Interfering in any other manner with the efforts of Interna- tional Union, United Automobile, Aircraft, and Agricultural Imple- ment Workers of America (UAW-CIO) to negotiate for, or to rep- resent, the employees in the aforesaid bargaining unit as the exclusive bargaining agent. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act as amended : (a) Upon request, bargain collectively with International Union, United Automobile, Aircraft, and Agricultural Implement Workers of America (UAW-CIO), as the exclusive representative of the employees in the aforesaid bargaining unit, with respect to rates of pay, wages, hours, and other conditions of employment, and if an understanding is reached, embody such an understanding in a signed agreement; (b) Post at its plant in Anniston, Alabama, copies of the notice attached hereto marked Appendix A.- Copies of said notice, to be 11 In the event that this Order is enforced by decree of a Court of Appeals, there shall be inserted in the notice, before the words: "A DECISION AND ORDER," the words. "A DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING." 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD furnished by the Regional Director for the Tenth Region, shall, after being signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent-to insure that said notices are not altered, defaced, or covered by any other material; (c) Notify the Regional Director for the Tenth Region in writing, within ten (10) clays from the date of this Order, what steps Re- spondent has taken to comply therewith. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL BARGAIN collectively upon request with INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT, AND AGRICULTURAL IM- PLEMENT WORKERS OF AMERICA (UAW-CIO), as the exclusive representative of all employees in the bargaining unit described herein with respect to wages, rates of pay, hours of employment, and if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All employees of the .Respondent at its Anniston, Alabama, plant working in the foundry, Department 0, the core room, Department P, the cleaning room, Department N, the material storage room, Department Q, including two inspectors perma- nently assigned to Departments 0 and N, but excluding clerical employees, timekeepers, watchmen, guards, professional em- ployees, and supervisors, and all. other employees of the Re- spondent, within the meaning of the Act. WE WILL NOT engage in any acts in any manner interfering with the efforts of INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT, AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW-CIO), to negotiate for, or represent, the employees in the bargaining unit described above. J. I. CASE COMPANY, Employer. Dated-------------------- By ------------------------------ (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.