International Harvester Co.

730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. The Respondent , Celanese Corporation of America , has not engaged in unfair labor practices as alleged in the complaint , within the meaning of Sec- tion 8 ( a) (1), (3), and (5) of the Act. Recommendations 0 Upon the basis of the foregoing findings of fact and conclusions of law, the undersigned recommends that the complaint be dismissed in its entirety. INTERNATIONAL HARVESTER COMPANY, FOUNDRY DIVISION (Louis- VILLE WORKS) and FALLS CITIES CARPENTERS DISTRICT COUNCIL, THE UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, A. F. L., PETITIONER INTERNATIONAL HARVESTER COMPANY and UNITED ELECTRICAL, RADIO &, MACHINE WORKERS OF AMERICA (UE), PETITIONER. Cases Nos. 9-RC-1082 and 9-RC-1106. July 27, 1951 Decision and Direction of Elections Upon petitions duly filed, a consolidated hearing was held before William A. McGowan, hearing 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 labor organizations involved' claim to represent certain employees of the Employer. 3. The Employer and the UAW contend that a contract at present in effect between them is a bar to this proceeding. The Carpenters and the UE assert that such contract contains an unlawful union- security clause and therefore cannot constitute a bar. On January 5, 1950, the UAW was certified in a production and maintenance unit at the Employer's plant. In February 1950, the Employer and the UAW signed a contract which terminated on Au- gust 23, 1950. On July 10, 1950, after an election conducted pursuant to Section 9 (e) (1) of the Act, the Board certified that -the UAW was authorized to make an agreement with the Employer requiring membership in such organization as a condition of employment, in conformity with Section 8 (a) (3) of the Act. On November 6, 1950, i Petitioner In Case No. 9-RC-1082 will be referred to herein as the Carpenters. Peti- tioner in Case No. 9-RC-1106 will be called the UE. The International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, CIO, Intervenor in both cases, will be referred to as the UAW. 95 NLRB No. 80. INTERNATIONAL E ARVESTER COMPANY 731 the Employer and the UAW entered into a contract having a termina- tion date of August 23, 1955. The validity of the union-security provision in this contract is in question. This provision is as follows : Any employee in the bargaining unit who is a member of the Union in good standing on the effective date of Sub-sections (a) to (f) inclusive of this Section 1, as to'such bargaining unit shall be required, as a condition of continuing employment with the Company, to maintain his membership in the Union to the extent of current monthly Union dues, general assessments and initiation fees, if any,'commencing on the thirtieth- (30th) day following the effective date of Sub-sections (a), to (f) inclusive? The asserted vice of this provision is that it requires as a condition of continuing employment the payment to the UAW of general assess- ni nts levied by that organization. The UE and the Carpenters con- tend that such a requirement- goes beyond the permissive language of the second proviso to Section 8 (a) (3) of the amended Act. That proviso states that no employer shall 'ustify any discrimination against an employee for nonmembership in a labor organization "if ,he has reasonable grounds for believing that membership was denied or terminated- 1-or reasons other than the failure of the employee to tender the periodic dues and the ihitiatioir fees uniformly required as a condition of acquiring,or 'retaining nmember'ship." The question raised is whether or,,not the general assessments providedfor in the Employer-UAW contract are encompassed within the term "periodic dues" as used in this section. We believe't'hat they are not.. The constitution -of the UAW, entered as an exhibit in this case, provides that assessments may be levied in the following ways: s (1) By the executive board of the International acting independently, up to 1 dollar per member annually; (2) by the local unions, in certain situations and under specified conditions; and (3) by the.execu- tive board with-the.-approval of a majority of all the union members,. in any amount and at any time. Under each, of the methods, the time and amount of the assessment are variable and not a matter of certain prediction. A standard. dictionary defines periodic in 'its principal meaning as "Characterized by periods, occurring at regular stated times, acting, happening or appearing at fixed intervals." 4 The assess- ments provided for in the contract do not appear to contain any ele- ment of regularity or periodicity. In these circumstances we fail to see any support for the contention that such assessments are included within the phrase "periodic dues" as enacted by Congress in 1947.. 2 The quoted provision refers only to employees then members of the UAW. However, other clauses in the contract impose similar requirements on employees who thereafter become members and also on new employees. Although the contract does not explicitly state that the assessments provided for therein are those referred to in the UAW constitution , we assume that such is the case. Webster's Dictionary (Second Edition Unabridged). 732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD However, the UAW and the Employer assert that the purpose of Section 8 (a) (3) (B) of the Act is-to prohibit the use of the device of nonuniform membership charges as a means of penalizing union members; they argue that Congress was seeking to eliminate dis- crimination among union members. Therefore it is contended that because the contract here in question specifically provides that the assessments shall be levied uniformly among all members,5 the intent of Congress is satisfied.. - While it is true that Congress certainly meant to prohibit discrimi- nation among employees based on nonuniform union membership charges, the legislative history of the Act reveals that Congress also desired to eliminate nonpayment of assessments, even though uni- formly levied, as a basis for such discrimination. This is particularly evident in the 1947 legislative discussions of the Cecil B. De Mille case. In that case the union to which De. Mille belonged had levied a 1 dollar assessment on each member to raise a fund to fight a proposed anticlosed-shop law in California. Because De Mille refused to :pay the assessment, he was expelled from the union and had to give up, his job producing a radio program. - This evoked much com- ment during the discussions in Congress leading up to .the passage of - the amended Act. Among them was the following significant state- ment by Senator Ellender, who was an active member of the labor committee in support- of the Senate Bill : '.One of the cases was that of Cecil B. De Mille, who, as we know, is a producer of motion pictures on the west coast. He is also a radio commentator. Mr. De Mille was forced to join a union'in order to be able to appear on the radio. Soon after he joined the union, he was asked to make a contribution to a cause in which he did not believe: He refused to make such a contribution. Then what happened? The union kicked him out; it said, "We do not want you as a mem-' ber any more." Up to this moment, Mr. President, Mr. De Mille has not been able to make any further broadcasts on the radio, simply because he violated the rules of the union to which he belonged. • Now here was a man called upon to put up a contribu- tion to fight a cause in which he did not believe and because he refused to pay the assessment made on him, he was kicked around and is now unable to pursue his work. . Such a situation is intoler- able and must be corrected. The pending measure as I will show better corrects such. an evil.6 5 Article V, Section 1' (f) of the contract states : - The term "general' assessments" as used in' this Section shall mean assessments uniformly levied by the International Union and/or the Local Union against an'mem- bers, notice of which shall have been given to the Company. 93 Cong. Rec. 4258,; 2 Leg. Hist.1081. INTERNATIONAL HARVESTER COMPANY 733 Senator Ellender then went on to say that the union-shop provisions of the Senate Bill 7 would prevent a union from causing the discharge of an employee as the union had done in the De Mille case. Other Senators also deplored that incident and indicated a desire to prevent such occurrences in the future. It is important to note that the assess- ment in the De Mille case was not discriminatory; that is, it was uniformly required of all members. Hence, it appears that Congress intended to eliminate the nonpayment of assessments, as such, as a basis for discharge of employees. It is our duty to follow that intent. The Employer and the UAW refer the Board to an opinion of the Department of Justice interpreting the term "membership dues" as it appears in Section 302 of the Act to include assessments as well as regular dues.s While the Board, of course, is not bound in its adminis- tration of the Act by the interpretation of the Department of Justice, the Board has always deemed it proper in the interest of consistent and orderly administration to give due weight to the considered opinion of a sister agency. However, the clause in Section 302 interpreted by the Department of Justice to include assessments contains different language and has a different purpose from that used' by Congress in Section 8 (a). (3) (B), with which we are here solely concerned: Here; the words to be construed are "periodic dues"; there they were "mem- bership dues." The latter term' is more susceptible' of a brbadth in= terpretation. Under Section 8(a) (3) (B),Congiess' waslegisl'ating with regard to a collective bargaining agreement making mandatory the payment of periodic dues as a -condition of -employment: Under Section 302 the term'"membership dues" embraces those union charges that may legally be included in'the checkoff provisions of a contract, where the checkoff cannot be' 'effect'ive as, to any- individual `employee unless specifically and voluntarily authorized iii' writing by that em- ployee. For these reasons we do not believe that the cited opinion of the Department of Justice can be controlling. Finally, the UAW and the Employer assert that if the Board finds this.contractnot-to be a bar, it will "disturb a great .body: of American labor-management contracts" containing similar provisions.. ;How- .ever, it,must not be forgotten that, as the agency designated for;that purpose, this Board has the duty to administer the Act in accordance with the letter of the Act and the evident intent of the Congress that T S. 1126. The applicable provision of this bill was almost identical with Section 8 (a) (3) (B) as finally passed. 8 That opinion appears in a letter from the Assistant Attorney General to the Assistant Solicitor General dated May 13, 1948. The section of the Act discussed, Section 302, makes it a misdemeanor for any employer to make payments to the representative of any employees , or for the representative to receive such payments , and then goes onto state: (c) The provisions .of this section shall not be applicable . (4) with respect to money deducted from the wages of employees in payment of membership dues in a labor organization. 734 DECISIONS `OF: NATIONAL " LABOR RELATIONS BOARD passed it. The only possible interpretation of that intent, based upon legislative history , leads us to the conclusion that the assessments in- volved in this case are not encompassed within the term "periodic dues" as used in Section 8 (a) (3) of the Act. As the contract contains an illegal union -security clause we find that' it cannot constitute a bar to these proceedings.e, Accordingly, we find that a question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act 1° 4. The appropriate units : Case No. 9-RC-1106 In this case the UE seeks a unit composed of all production.em- ployees at the Employer's plant and would exclude all maintenance 'employees. As an alternative, the UE' would accept an over-all pro- duction and maintenance unit with certain exclusions. The UAW contends that the latter unit, corresponding to its present contractual unit, is alone appropriate. That contractual unit is the same as the unit previously, found appropriate by the Board 11 in which the UAW was certified on January 5, 1950, except for the exclusion in the con- tract of craft groups for whom bargaining representatives were sub- sequently certified by the Board. The UE has .not presented any reasons to warrant a departure from the Board's usual practice of including production and maintenance employees in one unit. We therefore find such. a unit to be appropriate in this case. However, as we shall direct "Globe" elections among the employees concerned in the other of these consolidated cases, the actual composition of the production and maintenance unit in this case will await. the results of those elections. % Case No. .9-RC-1082 The Carpenters petitioned for a unit composed of millwrights, so- called millwright welders, apprentices-and helpers, and repairmen, all 'working in the Employer's maintenance department. Most of these 0. Hager c6 Sons Hinge Manufacturing Company, 80 NLRB 163. 10 The Employer also takes the position with reference to the petition in Case No. 9-RC- 1082 that Section 9 (c) (3) requires that the petition be dismissed as untimely, in that it was filed less than 1 year after the UAW was certified as the bargaining representative in this unit. Section 9 (c) (3) provides that "no election shall be directed in any bargaining unit or any subdivision within which, in the preceding twelve-month period, a valid election shall have been held." The runoff election as a result of which the UAW was certified N was held on November 22, 1949. It is now over a year since then ; moreover more than a year had elapsed at the time each of the petitions was filed in this case. Consequently we And no merit in the Employer's contention. General Electric Company, 89 NLRB 726. u International Harvester Company, Louisville Works, 85 NLRB 1310. INTERNATIONAL HARVESTER COMPANY 735 employees are in. the category of repairmen, sometimes referred to as maintenance machinists. The job of repairmen is to diagnose trou- ble in machinery and equipment, repair it; and, when necessary, re- pair or make parts. The millwrights do the usual work of their trade, setting up machinery, building foundations for it, making the necessary rigging, assembling the machinery, and preparing it for operation. As the employees in these two groups do highly skilled work of a craft nature iii connection with machinery and equipment and as they work in conjunction with each other, we find that they may jointly comprise an appropriate unit which may be severed. from the production and maintenance unit if they so desire.12 The welders, who are maintenance welders as distinguished from the Employer's production welders, perform their duties throughout. the plant on machinery and equipment and also on structural steel,. and overhead construction. They do both are .and gas welding. It appears that part of their work is..done in aid of the work of the mill- wrights and the repairmen. However, the record does not show that the maintenance welders are regularly assigned to the millwrights and repairmen. The Board has recently held that maintenance welders constitute an identifiable craft group who may compose a separate bargaining unit if they' so desire.13 Accordingly, we will set up the- maintenance welders in a separate voting group to ascertain whether they desire to be represented for the purposes of collective bargaining: as a separate unit or as part of the production and maintenance unit.. We shall direct elections among the following groups of employees at the Employer's plant : Group No. 1-All production and maintenance employees in the foundry at the Louisville Works of the Employer, including the cab crane operators ; but excluding the employees in voting groups 2 and 3, and also excluding all maintenance electricians ('including the helpers and the industrial truck repairmen who do electrical work in the garage and their helpers), all pipe fitters and pipe fitter helpers,'' all employees of the Pattern Shop,15 guards, professional employees,. and supervisors as defined in the Act. Group No. 2-All millwrights, repairmen, apprentices and helpers,. excluding office clericals, guards, and .supervisors as defined in the° Act. 12 A. C. Spark Plug Division, General Motors Corporation (Milwaukee Plant ), 88 NLRB 1214. Is International Paper Company, Southern Kraft Division, (Rayon Plant), 94 NLRB 500'; International Paper Company, Southern Kraft Division, 94 NLRB 483. 14 The. excluded maintenance electricians and pipe fitters are those found to constitute separate appropriate units in International Harvester Company, 88 NLRB 214, and for whom bargaining, representatives were subsequently certified. 25 A bargaining representative was certified for these patternmakers in Case No : 9 -RC=430'_ 736 DECISIONS OF NATIONAL. ,LABOR .RELATIONS BOARD Group No.. 3=All maintenance welders, including apprentices and helpers, excluding office clericals, guards, and supervisors as defined in the Act. [Text of Direction of Elections omitted from publication in this volume.] THE TIMKEN-DETROIT AXLE COMPANY wind INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND., AGRICULTURAL IMPLEMENT WORKERS - OF AMERICA, LOCAL 174, CIO,, PETITIONER. Case No. 7-RC-1223. July 27, 1951 Decision and Direction of Election Upon, a petition duly filed under. -Section 9 (c) of the National Labor Relations Act, a hearing was held before George A. Sweeney, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-mem- ber panel [Chairman Herzog and Members Murdock and Styles]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain em- ployees of the Employer. 3. A question affecting commerce exists. concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. .4- The The appropriate unit: The parties agree generally that the appropriate unit should con- sist of all office and clerical employees employed- at the Employer's Detroit, Michigan, offices.' They, are, in disagreement, however, as to the inclusion of switchboard, operators and certain other specific categories of employees discussed below. The Employer takes the position that the switchboard operators should be excluded as con- fidential employees and that the remaining disputed categories of employees should be included. The Petitioner contends that the switchboard operators are properly' included in an office and clerical unit and that the other, categories ofemployees should be excluded .as either professional or technical employees. The categories of employees whom tiie -parties agreed to include or exclude are listed below. 95 NLRB No. 81. .