General Electric X-Ray Corp.

In the Matter of GENERAL ELECTRIC X-RAY CORPORATION and UNITED ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA, C. I. O. Case No. 13-B-3377.-Decided April 30, 1946 Mr. Otto A. Jaburek, of Chicago, Ill., for the Company. Messrs. Leonard C. Lewin and T. Louis Major, both of Chicago, Ill., and Mr. Henry A. Silver, of New York City, N. Y., for the C. I. O. Mr. Daniel D. Carmell, by Ylr. Lester Asher, of Chicago, Ill., and Messrs. Russell R. Oddo and E. J. Reid, both of Chicago, Ill., for the I.A.M. Mr. David V. Easton, of counsel to the Board. DECISON AND ORDER Upon a petition duly filed by United Electrical, Radio & Machine Workers of America, C. I. 0., herein called the C. I. 0., alleging that a question affecting commerce had arisen concerning the representation ,of employees of General Electric X-Ray Corporation, Chicago, Illi- nois, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before William °O. Murdock, Trial Examiner. The hearing was held at Chicago, Illinois, on February 26, 1946. The Company, the C. I. 0., and International Association of Machinists, District 8, Ray Point Local #1696, herein called the I. A. M., appeared and participated. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. At the hearing the Company and the I. A. M. each moved for dismissal of the petition. The Trial Examiner reserved ruling on these motions for the Board. For reasons set forth in Section III, infra, the motions are hereby granted. The Trial Examiner's rulings made at the hearing are free from prejudicial error, and are hereby affirmed. All parties were afforded opportunity to file briefs with the Board. On March 19,1946, the I. A. M. filed a written motion with the Board, seeking to reopen the record "for the purpose [inter alia] of adducing ... facts concerning the exact dates appearing upon the proof of membership submitted to the Board by the [C. I. 0.]." If 67 N. L. R. B., No. 121. 997 998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD we believed it necessary to pass upon this motion, we would deny it. The showing of a petitioning union is not subject to direct or collateral attack, inasmuch as it is an administrative matter entirely within our province to evaluate for the purpose of determining whether or not to set our election machinery in motion., Since, however, we are dismissing the petition for the reasons stated in Section III, infra, we find it unnecessary to dispose of the I. A. M.'s application. On April 3, 1946, oral argument was held before the Board in Washington, D. C. The C. I. O. and the I. A. M. appeared and participated 2 Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY General Electric X-Ray Corporation, a Delaware corporation with its principal place of business located at Chicago, Illinois, is engaged in the manufacture and sale of x-ray equipment. A substantial amount of the raw materials used by the Company and a substantial amount of its finished products, both of which exceed an annual value of $1,000,000, are transported in interstate commerce. The Company admits that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATIONS INVOLVED United Electrical, Radio & Machine Workers of America, affiliated with the Congress of Industrial Organizations, and International Association of Machinists, District No. 8, Ray-Point Local #1696, are labor organizations admitting to membership employees of the Company. M. THE ALLEGED QUESTION CONCERNING REPRESENTATION The Company has, in effect, refused to recognize the C. I. O. as the representative of certain of its employees because of its contractual obligations to the I. A. M. On May 18, 1943, the I. A. M. was designated, after a consent elec- tion, as the representative of the Company's hourly paid production and maintenance workers.3 A collective bargaining agreement exe- cuted by the Company and the I. A. M. terminated on September 20, 1945. At that time the parties began negotiations for a new contract. ' See Matter of Buffalo Arms Corporation, 57 N. L. R. B. 1560. 8 Although duly notified , the Company did not appear at the oral argument . It did, however, inform the Board of its position on the issues in this case 8 Case No. 13-R-1724. GENERAL ELECTRIC X-RAY CORPORATION 999 During the course of these negotiations they reached an impasse, which was followed by a strike lasting until October 22, 1945. Negotiations were thereafter resumed, and, by October 29, 1945, the parties agreed upon, but did not reduce to writing, all of the terms of a new contract. On November 211945, the C. I. O. addressed a letter to the Company, advising it that "a majority of [its] production and maintenance workers have indicated their desire to be represented by [the C. I.0.]," and requesting the Company not to enter into any agreement with any other labor organization claiming to represent these employees. It filed no petition at that time. On November 22, 1945, the Company and the I. A. M. signed a col- lective bargaining agreement covering the production and mainte- nance employees. This agreement is to continue in operation until October 21, 1946, and is-automatically renewable for yearly periods thereafter in the absence of notice of a desire to modify or terminate given by either party to the other at least 30 days before any anni- versary date. Five days later the Company addressed a letter to the C. I. O. wherein it stated : Since the Board has not certified to us that [the C. I. O,] has displaced the J. A. M.] as the bargaining representative and has not, even though twenty days have passed since the receipt of your letter [of November 2, 1945], notified us that the matter of repre- sentation is in dispute, we had no alternative . . . but to enter into an agreement with [the I. A. M.] in respect of which the parties had been in substantial agreement since October 22, 1945. The C. I. O. did not file its petition herein until November 30, 1945. It is the position of the C. I. O. that the agreement of November 22, 1945, cannot bar an immediate determination of representatives, because it was executed after the Company had been notified of the C. I. O.'s claim of majority representation. The Company and the I. A. M. contend that their agreement does bar a present election, because the C. I. O. did not promptly follow up its timely but informal claim by filing a petition with the Board. At the oral argument the I. A. M. argued that only a formal petition should be permitted to prevent a subsequent collective agreement.from becoming a bar. Our precedents support the C. I.O.'s position. We have not applied the contract bar rule in situations in which a rival claim antedates the execution or automatic renewal of the agreement. Until now, more- over, our decisions have made no distinction between informal claims and formally filed petitions.' But the record and oral argument in ' See, for example, Matter of Utica Knitting Company, 23 N. L. R. B . 55; Matter of Colonic Fibre Company, Inc., 9 N. L. R B. 658. 1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this and a companion case 5 persuade the Board that it is no longer desirable to accord a mere naked assertion of majority equal dignity with that accorded a petition. By filing a formal representation petition with a Regional Office of the Board, a claimant submits its claim to the Board's adminis. trative process, including a prompt investigation of the substantiality of the petitioner's prima facie showing of interest. The issuance of a notice of hearing constitutes a preliminary but official recognition that the claim has color. Conversely, where substance is found want- ing, the Regional Director refuses to proceed. By subjecting the pe- tition to this preliminary scrutiny, and risk of rejection, the Board's processes serve to discourage baseless claims. The Board may reason- ably require restraint on the part of an employer and a labor organi- zation, engaged in negotiations, during the relatively short period necessary to conclude these preliminary investigations, and hold that they act at their peril in consummating an agreement with knowl- edge of the pendency of the proceeding before the Board.,' But the presentation of a mere naked claim of representation, such as was here advanced, places no onus on the claimant to substantiate its claim and thus gives rise to no inference of substantial interest. To permit such a claim to defeat, without limitation as to time, a subsequent but otherwise valid collective agreement appears to us to place too great burden and impairment upon the bargaining process. The now great and growing familarity on the part of labor organiza- tions and their advisers with the Board's policies and practices enables abuse, inviting claimants without representation strength to play the role of dog-in-the-manger, and indefinitely to frustrate collective bargaining.? For the foregoing reasons we have concluded that where a petition is filed more than 10 days after the assertion of a bare claim of repre- sentation, and no extenuating circumstances appear, an agreement, otherwise valid, which is executed in the interval should be held to constitute a bar. Here, the C. I. O. delayed in filing its petition until as much as 28 days had passed from the time it notified the Company of its conflict- 5 Matter of Olin Industries, Inc. (Western Cartridge Company Devieion, East Alton, Illinois ), 67 N. L R B 1043 , decided on other grounds and issued this day. Cf. Matter of Midwest Piping & Supply Co., 63 N. L. R. B. 1060. ' We are not unmindful that the employer and the recognized union are able, under the Rules, to seek settlement of the situation by filing their own petition But to require parties to whom no showing of substance has been exhibited to assert the existence of a question concerning representation encourages groundless claims and places the burden of resolving them upon the wrong parties . These considerations apply with particular force in situations wherein , as here, the previous relationship between the employer and the recognized union was initiated by the union's designation in an election conducted by the Board and has been implemented through a prior collective agreement. GENERAL ELECTRIC X-RAY CORPORATION 1001 ing claim to representation. In explanation of this unreasonable time lapse, the C. I. O. avers that it was incumbent upon the Company to respond to its letter of November 2, 1945. Until this was done, it argues in effect, it was not in a position to file a petition. But when it sent its letter the C. I. O. was undoubtedly aware of the I. A. M.'s past status as bargaining agent and that organization's continued presence on the scene and must therefore have been aware of the pos- sibility that the Company might refuse to accord it recognition. And, after several days had gone by without a reply from the Company, any expectation that the C. 1. 0. had that the Company would promptly recognize it as bargaining representative should have been eliminated. It is well settled that failure to demand recognition before the filing of a petition is not fatal if it appears at the hearing that the employer refuses to recognize the petitioner as the representative of the em- ployees concerned." Consequently, the C. I. O. should have known that a reply from the Company was not required before it could file a petition. We find that the 1945 agreement between the Company and the I. A. M. constitutes a bar to a present determination of representa- tives.9 Accordingly, we shall dismiss the C. I. O.'s petition. ORDER Upon the basis of the above finding of facts, the National Labor Relations Board hereby orders that the petition for investigation and certification of representatives of employees of General Electric X-Ray Corporation, Chicago, Illinois, filed by United Electrical, Radio & Machine Workers of America, C. I. 0., be, and it hereby is, dismissed. 8 See Matter of Houston Blow Pipe and Sheet Metal Works, 53 N. L. R. B. 184. 6 We have fully considered all other contentions advanced by the C. I. O. and find them to be without merit.