National Container Co.

In the Matter of NATIONAL CONTAINER CORPORATION, KRAFT PULP AND BOARD DIVISION, EMPLOYER and DISTRICT LODGE No. 112, INTERNATIONAL ASSOCIATION OF MACHINISTS, PETITIONER Case No. 10-RC-611.-Decided December 16, 1949 DECISION AND ORDER Upon a petition duly filed, a hearing was held before John C. Carey, Jr., hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. The hear- ing officer referred to the Board for ruling thereupon a motion by the Employer and the International Brotherhood of Paper Makers, A. F. L., to dismiss the petition. For reasons set forth in Section 3, below, the motion is hereby granted. 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 organizations involved claim to represent certain em- ployees of the Employer. 3. International Brotherhood of Paper Makers, A. F. L., herein called the Intervenor, has represented the Employer's production and maintenance employees through a series of collective bargaining agree- ments dating from 1941. In 1944, the Petitioner or its predecessor became a signatory to these agreements apparently as the representa- tive of the machinists and millwrights in the plant. However, in 1948 some dispute arose between the Intervenor and the Petitioner as to the right of the latter to represent any of the Employer's em- ployees. It was agreed in writing by international officers of the Petitioner and Intervenor to resolve this dispute finally by a privately conducted election in a voting group consisting of machinists, mill- wrights, oilers, and certain of the welders.' The Employer was not 'After setting out the, voting group , the agreement stated in part: If the majority of the above mentioned group indicate as a result of their vote that they desire to have the International Association of Machinists represent them, then in the future, the I. A. of Al. will represent all of the above mentioned in collec- tive bargaining with the National Container Corporation in the plant in question at Jacksonville , Florida ; and if a majority of the group indicate they desire to have the 87 NLRB No. 126. 1065 1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a party to this agreement. Before the election was held, this agree- ment was varied by local representatives of the-participating unions to the extent that all welders in the plant were included in the voting group. The election was conducted on November 16, 1948, under the direc- tion of a field representative of the Florida State Employment Service, whom the parties chose to act as an impartial overseer. No charges of irregularity in the conduct of the election were made by either party. The employees - who voted selected the Intervenor as their representative by a count of 36 to 22 . Later, presumably because it had lost the November 1948 election, the Petitioner did not partici- pate in negotiations for the 1949 contract with the Employer. On May 24, 1949, shortly before the 1949 contract between the Intervenor and the Employer -vas executed , the Petitioner filed the petition herein. The Employer and the Intervenor contend that the petition should be dismissed, as in their view the November 1948 election settled the alleged question of representation and the contract executed in June 1949 is therefore a bar to a present determination of representa- tives. We agree. Both labor organizations agreed to settle the ques- tion of the representation of the employees involved herein by an election. The election, which so far as the record shows was free from any irregularities , was conducted by secret ballot under the supervision of a responsible State official . Although, as the Peti- tioner points out in its argument against the motion to dismiss the petition, the original election agreement was amended to add other employees to the voting group, the change was made by, and with the full approval of, representatives of the Petitioner as well as the Intervenor. As amended, this voting group constituted a unit such as we have frequently held may be appropriate . The Intervenor was therefore chosen by secret ballot as the representative of employees in a unit appropriate for purposes of collective bargaining. Had the Intervenor been selected in an election conducted by this Board, we would have certified the Intervenor as the representative 'of the employees in the appropriate unit. To afford a reasonable opportunity for the negotiation of a collective bargaining agreement, the certification would then usually bar a petition by a rival organiza- tion for a reasonable period of time,'ordinarily 1 year from the date . of the certification. There is nothing in the record to indicate that the election was conducted under improper conditions or that the results would have been different had this Board conducted it on November 16, 1948. The Intervenor and the Employer were entitled Paper Makers represent them, then, of course, the Paper Makers Union will represent them in all of their collective bargaining efforts with Management. NATIONAL CONTAINER CORPORATION 1067 to a reasonable period of time from the date of the election to negotiate a contract free from the harassment of a representation petition by the very union that had originally agreed to that election. We believe that the contract entered into by the Intervenor and the Employer on June 24, 1949, was executed within a reasonable period after the ,electioi_, and that this Petitioner's filing of its petition shortly before that date should not remove the agreement as a bar to a present deter- mination of representatives. Accordingly, we find that no question .of representation of employees exists within the meaning of Section 9 (c) (1) of the Act. The agreement of the Intervenor and the Petitioner to resort to the ballot box represented a peaceful approach to the solution of the prob- lem encountered by these labor organizations. We should not now encourage the Petitioner to undo the salutary effect of its own agree- ment, or to evade its obligations because it was displeased with the results of an election which it once desired.2 ORDER Upon the basis of the entire record in Case No. 10-RC-611, the Na- tional Labor Relations Board hereby orders that the petition filed therein be, and it hereby is, dismissed. MEMBERS HOUSTON and REYNOLDS, dissenting : We disagree with the majority decision, and would direct an elec- tion herein. On May 24, 1949, the date on which the petition was filed, the In- tervenor was merely negotiating a contract with the Employer-no -contract had yet been signed. As the Intervenor was an uncertified union, we had thought, until today, that it was well-established that a petition in this situation would create a question concerning repre- sentation which could not be extinguished by the subsequent execu- tion of a contract. As recently as June 1949, the Board stated, "Al- though an uncertified union may prove its majority to the employer's .satisfaction, properly secure recognition and negotiate with the em- ployer 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' the merely recognized union, assert that its majority is dissipated and file a petition with the Board, the employer may not lawfully exe- 2 Chairman Herzog joins in this decision entirely because of the inconsistency of the Petitioner 's own position in attacking a regularly conducted election to which it originally agreed . He continues to believe that the General Box case (82 NLRB 678 ) was correctly decided. a 1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cute a contract until the Board has disposed of the petition." 3 Yet, despite this clear pronouncement of Board policy, the Board now holds, in the face of a prior 'petition, that the contract executed by the Employer with the uncertified Intervenor bars a present deter- mination of representatives. A result of the Board's decision herein is that the uncertified In- tervenor enjoyed, without benefit of a contract, a protected right to recognition as the exclusive bargaining agent from November 1948 to June 24, 1949. We must also presume that the majority of our colleagues would have extended this protection to a full year after the election.! The right is therefore tantamount to the most important right accruing to a union which has been certified as a bargaining rep- resentative by this Board. In effect, therefore, the Intervenor re- quired certification for purposes of representation proceedings through a privately conducted election. Only recently, however, the Board reaffirmed its long-existing policy of "investing its certifications with more certainty and prestige by basing them on free and secret elections conducted under the Board's auspices." 6 The decision of the majority we view as an abnegation of that policy. Moreover, we note that by cloaking the privately conducted election with the official sanction of this Board, the Board attributes to that election greater weight than it does certain representation elections conducted by State labor relations boards. Thus in the Kaiser-Frazer case,' this Board refused to dismiss the petition although an exclusive bargaining agent had already been chosen by an overwhelming ma- jority of the employees in the appropriate unit in a secret-ballot elec- tion conducted by the Utah State Labor Relations Board. The Board held that to give effect to the election "would clearly contravene the National Labor Relations Act" because the provisions of the Utah statute did not impose certain administrative requirements compara- ble to those in the Federal Act, as required by Section 10 (a) of the Act.8 In view of that decision we are of the opinion that the Board 3 General Box Company, 82 NLRB 678 . See also Midwest Piping and Supply Company, Inc., 63 NLRB 1060. 4 See the dissenting opinion of Members Murdock and Gray in Monroe Co-operative Oil Co., 86 NLRB 95, wherein they advocate a 1-year right to recognition for a union following its voluntary recognition by an employer as the bargaining representative of, the latter's employees. In the General Box case, supra, the Board stated : In short, . . . 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. e General Box Company, supra. v Kaiser-Frazer Parts Corp., 80 NLRB 1050. $ Section 10 (a) reads as follows : "The Board is empowered. as hereinafter provided, to prevent any person from engaging in any unfair labor practice ( listed in section 8) affect- 0 NATIONAL CONTAINER CORPORATION 1069 should, for purposes of representation proceedings, adopt the policy of giving effect only to those electiwis conducted either. under the -auspices of this' Board or of sister agencies imposing the comparably admin- istrative requirements of this Board. Only by adopting this policy can the various provisions of Section 9 (c) of the Act I be consistently administered. If, as the majority here holds, a privately conducted election can settle the alleged ques- tion concerning representation under Section 9 (c) (1),10 it would seem that the same privately conducted election must be considered a "valid election" within the meaning of Section 9 (c) (3).11 Yet we feel that the term "election" as used throughout Section 9 (c) should be construed in accordance with its first usage in that section, namely an election directed by the Board. Such a construction was indicated by our decision in the General Box case, supra. There we surveyed the value of a certification under the Act and then held that a union, even though it be the recognized bargaining agent, was entitled to an election conducted by this Board in order to obtain a certification and its inherent benefits. If the Board is to enable the full benefits of ing commerce. This power shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise : Provided, That the Board is empowered by agreement with any agency of any State or Territory to cede to such agency jurisdiction over any cases in any industry (other than mining, manu- facturing, communications, and transportation except where predominantly local in char- acter) even though such cases may involve labor disputes affecting commerce, unless the provisions of the State or Territorial statute applicable to the determination of such cases by such agency is inconsistent with the corresponding provision of this Act or has received a construction inconsistent therewith." Section 9 (c) provides in part : (1) Whenever a petition shall have been filed, in accordance with such regulations as may be prescribed by the Board . . . the Board shall investigate such petition and if it has reasonable cause to believe that a question of representation affecting com- merce exists shall provide for an appropriate hearing upon due notice. Such hearing may be conducted by an officer or employee of the regional office, who shall not make any recommendations with respect thereto. 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. (2) In determining whether or not a question of representation affecting commerce exists, the same regulations and rules of decision shall apply irrespective of the identity of the persons filing the petition or the kind of relief sou--ht and in no case shall the Board deny a labor organization a place on the ballot by reason of ;ill order with respect to such labor organization or its predecessor not issued in conformity with section 10 (c). (3) No election shall be directed in any bargaining unit or any sub-division within which, in the preceding twelve-month period, a valid eleotton shall have been held. Employees on strike who are not entitled to reinstatement shall not be eligible to vote. In any election where none of the choices on the ballot receives it majority, a run-off shall be conducted, the ballot providing for a selection between the two choices receiving the largest and second largest number of valid votes cast in the election. (41 Nothing in this section shall be construed to prohibit the waiving of hearings by stipulation for the purpose of it consent election in conformity with regulations and rules of decision of the Board. [b.mplmsia added.] See footnote 9, supra. " See footnote 9, supra. 1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD certification to accrue to a union which may have been selected within the previous 12-month period as bargaining agent in a privately con- ducted election, as we believe the Board must, the Board cannot hold such a private election as a "valid election" within the meaning of Section 9 (c) (3). Nevertheless this decision portends such a holding.