Ford Motor Co.

932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD July 22, 1950, respectively, and by refusing thereafter to reinstate them, thereby discouraging membership in Lumber and Sawmill Workers, Local Union No. 598, United Brotherhood of Carpenters and Joiners of America, AFL, and in Inter- national Woodworkers of America, CIO, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommended Order omitted from publication in this volume.] FORD MOTOR COMPANY ( CANTON FORGE DIVISION and INTEP,N.V17ON \I, BROTHERHOOD OF BLACKSMITHS , DROP FORGERS AND HELPERS, AFL, PETITIONER. Case No. 8-RC-935. August 2, 1951 Order Vacating Decision and Decision and Order Upon a petition duly filed, a hearing was held in this case at Canton, Ohio, before John H. Garver, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.' On July 11, 1951, the Board issued a Decision 2 in this case in which it found that the contract of September 28, 1949, entered into by the Employer and the Intervenor, International Union, United Automo- bile, Aircraft and Agricultural Implement Workers of America, UAW-CIO, was no bar to the present proceeding. In that decision the Board also granted the request of the Petitioner for oral argument, limiting the scope of the argument, however, to the appropriateness of the unit sought by the Petitioner. Thereafter, the Intervenor filed a motion for reconsideration of the Board's decision on the contract bar question, and requested enlargement of the scope of oral argument to include that issue. The Board granted the request, and also granted the application of the Congress of Industrial Organizations to appear as amicus at the oral argument on the contract bar issue. On July 23, 1951, all parties participated in oral argument before the Board, the Intervenor, the Employer, and the CIO presenting arguments for holding the contract to be a bar not theretofore considered by the Board. Upon consideration, for reasons set forth in paragraph 3, below, a majority of the Board are of the opinion that the September 28, 1949, 1 The motion to dismiss made at the hearing by the Employer and the Intervenor to granted for reasons set forth in paragraph 3, below. 2 95 NLRB 127. 95 NT RB No. 121. FORD MOTOR COMPANY (CANTON FORGE; DIVISION) 933 contract is a bar to this proceeding. Accordingly, we shall vacate the Decision'of July 11, 1951. Upon the entire record in the case, the Boards finds: 1. The Employer is engaged in. commerce within the meaning of the National Labor Relations Act. 2. The Petitioner and the Intervenor are labor organizations claim- ing to represent employees of the Employer. 3. No 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, for the following reasons: The Petitioner filed its petition herein on June 20, 1950, seeking to represent all employees in the Employer's Canton, Ohio, forging plant. The Employer and the Intervenor maintain, that their collective bar- gaining contract of September 28, 1949, is a bar to this proceeding; in addition, they contend that the unit sought is not appropriate. The Petitioner maintains that the contract is no bar, and urges in support of this contention several grounds, one of which is that the contract contains an unauthorized and unlawful union-security provision. More specifically, the Petitioner argues that the Congress of Industrial Organizations, the parent federation of the Intervenor, was not in com- pliance with the filing requirements of the Act at the time of the union-authorization election at the Canton plant; that therefore the union-security clause in the contract was not properly authorized; and that, under well-settled Board principles,3 the contract containing the clause cannot operate as a bar to a rival petition. Since 1941, the Employer and the Intervenor have entered into a :series of collective bargaining agreements covering all plants operated by the. Employer. In 1948 the Employer started operations in the Canton plant. Pursuant to a Board-directed election, the Intervenor was certified as the bargaining representative of the Canton employees ,on April 6, 1949, and this plant was included in the next master con- tract executed by the Employer and the Intervenor on September 28, 1949. , In 1948, following a company-wide election under Section 9 (e) of the Act, the Board certified the Intervenor as authorized to execute a union-security agreement, and such provision was made in the 1949 ,contract. However, as the Canton employees were not represented by Intervenor at the time of the Section 9 (e) election, the Intervenor filed a separate 9 - (e) petition for the Canton employees. Out of 1,270 eligible voters in this election, conducted" by the Board on October 27, 1949, 795 ballots were cast for, and 125 ballots were cast against, au- 8 C. Hager & Sons Hinge Manufacturing Company, 80 NLRB 163. 4 80 NLRB 1094. 934 DECISIONS:OF-NATIONAL LABOR RELATIONS BOARD thorizing the Intervenor to execute a union-security agreement. On November 3, 1949, the Board issued its certificate of authority to the Intervenor and the Employer, and, by agreement of the parties, the union-security provisions of the September 28, 1949, contract were immediately made applicable to the Canton plant. 'Although the Intervenor was in compliance with the filing require- meats of Section 9 (f), (g), and (h) of the Act at the time it filed, and the Board entertained and acted upon, its petition for a union- authorization election for the Canton employees, the CIO was not in Compliance and in fact did not comply until December 22, 1949. Under its interpretation of the Act,fi the Board did not then require compliance by the parent federations of international unions. On May 14,1951, some 18 months after the parties had extended the union- security agreement to the Canton plant, the Supreme Court of the United States held in the Highland Park case 6 that the Board had erred in its interpretation of the filing provisions of the Act and that these provisions required compliance by the parent federations of affiliated onions. Before the Highland Park .decision, the 1949 contract, containing the union-security clause adopted pursuant to the Board's certificate of authorization, would have been operative as a bar to the pending petition because the Board, adhering to its interpretation of the non- communist affidavit provisions, would have deemed its earlier action as authorized and the union-security agreement as valid despite the noncompliance of the CIO at the time of the 9 (e) proceeding. We now know, however,'as the Board stated in its earlier decision in this case, that the Highland Park decision means that the Board's action in entertaining the 9 (e) proceeding and issuing the certificate of November 3, 1949, was unauthorized. The specific question before us on reconsideration, therefore, is the effect of the Highlands Park decision on the question whether the contract iii this case, embodying as it does a union-security provision adopted under the circumstances already stated, should be a bar to the present petition. , The contract bar' rule is not compelled by the Act or by judicial decision thereunder.. It is an administrative device early adopted by the Board in the exercise of its discretion as a means of maintaining stability of collective bargaining relationships. Following the. 1947 amendments of the Act, the Board, in the Hager Hinge case,' again in the exercise of its discretion, made an exception to this rule by refusing to permit a contract containing an illegal union-security clause to operate as a bar. The exception has been applied in two Northern Virginia Broadcasters, Inc., Radio Station WARL, 75 NLRB 11. e N. L. R. B. v. Highland Park Manufacturing Company, 71 S. Ct. 758. Footnote.3, supra. ' FORD MOTOR COMPANY (CANTON FORGE DIVISION) 935 types of cases: (1) Where the clause failed to incorporate essential provisions of the Act, or went beyond the kind of union-security permitted by the Act; and (2) where the statutory procedures had riot been followed and the proper authorization secured under Sec- tion 9 (e). The Board has considered this exception to have the salutary effect of discouraging unions from flouting the mandates of Section 9 (e)' and the affidavit provisions of Section 9 (h) of the Act. There are sound reasons for not applying the Hager Hinge ex- -ception in this case. Admittedly, the union-security clause in the 1.949 contract conforms strictly to the provisions of the Act as to scope and coverage. What is more pertinent, the Intervenor did not ignore or flout the union-authorisation procedures of the Act. On the contrary, it complied fully with the requirements of Section 9 (e) and with the requirements of Section 9 (h) as interpreted by the Board. Finally, it received an appropriate certificate of authoriza- tion from the Board. Under these circumstances, we see no valid basis for applying the Hager Hinge exception to this case and up- setting the existing bargaining relationship of the Employer and the Intervenor. We are now convinced that our earlier decision did not give enough weight to fundamental equitable principles established by the courts in comparable situations which show a clear disposition to protect and save affirmative action taken in reliance upon erroneous adminis- trative assurance or upon interpretation of a statute later judicially declared to have been incorrect." We find a similar disposition on the part of the courts to refuse to regard as a nullity all action taken in reliance on a statute later held to be unconstitutional. The con- siderations underlying these decisions were stated as follows by the Supreme Court in Chicot County Drainage District v. Baxter State Bank, et'al.: . The actual existence of a statute, prior to such a determina- tion [of unconstitutionality], is an operative fact and may have consequences, which cannot justly be ignored. The past cannot always be erased by a new judicial declaration . . . Questions of rights claimed to have become vested, of status, of prior deter- minations deemed to have finality and acted upon accordingly, , Moser V. United States, 71 S. Ct. 553, decided April 9, 1951 ; Stockstrom v. Commis- sioner of Internal Revenue, decided by the Court of Appeals for the District of Columbia on March 29, 1951. 9 308 U. S.:371, 374 (1940 ). See also : J. A. Dougherty's Sons, Inc. v. commissioner ,6f Internal Revenue, 121 F. 2d 700, 702 (C. A. 3, 1941) ;'where the Court used the. follow- lag significant language : . . . Although it was formerly held that an unconstitutional statute is a nullity ab i .itio . . . more lately it has been recognized that the consequences of action taken or. restricted in obedience to the requirements of a statute which subsequently is declared unconstitutional are to be appraised and adjudged in the light of the com- pulsion exerted by the statute prior to its determined invalidity.. . 936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of public policy in the light of the nature both of the statute and of its previous application, demand examination. . . . [Emphasis supplied.] The principle enunciated in these cases is one which commends itself to us in determining the question now before this Board. The Intervenor and the Employer, relying on the Board's view of the law and on its 9 (e) certificate as official authorization to them to enter into a union-security agreement, included the union-security provi- sion in the 1949 contract with the assurance that their contract would not thereby permit a rival union to unsettle their bargaining relation- ship. Had the Intervenor known it was running the risk urged by the Petitioner, it could have chosen not to adopt the clause and to bar- gain with the Employer on another basis. We do not know what bargaining demands. the Intervenor gave up in order to secure the Employer's agreement on union security, nor what concessions the Employer received in return for granting union security. Nor do we know what steps the Intervenor would have taken to secure the compliance of the CIO with the affidavit provisions of the Act had the Board refused to process the Interveno'r's petition because of the lack of such compliance. But the contracting parties included the union security clause in the contract in reasonable reliance on the accuracy of the interpretation of this Board, the sole agency authorized to make such an initial determination, and on the action taken by the Board in entertaining its petition and issuing to it a certificate. Therein lies the detriment to the contracting parties of treating the union security agreement as though it had been executed under the circumstances present in the Hager Hinge type of case. For the Board to say now that the 1949 contract.is so tainted by the inclusion of the union security clause,. only recently shown to have been improp- erly authorized by the Board, that it cannot be effective for contract bar purposes, is not only harsh and inequitable but a result which, the Board after careful consideration now concludes, is not required by the Act or by court decisions interpreting the Act. In the light of these considerations, and as the Highland Park decision does not compel a contrary conclusion, we find without merit the contention of the Petitioner that the September 28, 1949, contract should not be a bar to the pending petition because of the union security clause. That a legislative remedy, as suggested. by our dissenting colleague, is possible, should not, because of its speculative and delayed charac- ter, deter the Board in exercising its full legal authority in deciding pending cases. .. It is clear from our decision herein that we are concerned in this representation case only with the question of whether the Septem- ber 28, 1949, contract is operative as a bar to defeat the petition for FORD MOTOR COMPANY (CANTON FORGE `DIVISION) 937 investigation and certification of representatives now before the Board in this proceeding. We are not, of course, in any way deciding any issues which might be presented in an unfair labor practice proceed- ing concerning a union-security agreement executed under the circumstances we have here considered. The Petitioner further contends that the 1949 contract is no bar to its petition because (1), the contract was reopened during its term beyond the scope of the reopening clause in the contract, (2) the con- tract contains a ,clause providing for payment to committeemen of the Intervenor for time spent in handling grievances, and (3) there has been a schism in the Intervenor's membership, creating confusion as to the identity of the bargaining representative. We find these contentions also to be without merit. As to (1), the Board has held in Western Electric Company, Inc.10 that a con- tract, which by mutual consent has, during the contract term, been substantially modified beyond the scope of a reopening clause, will nevertheless be a bar to an otherwise prematurely filed petition. As to (2), the Board has consistently held that matters pertaining to unfair labor practices are not litigable in representation proceedings."' With respect to schism, there is evidence in the record of an effort in June 1950 by the 'employees in the Canton plant to disaffiliate from the Intervenor. However, the action taken was promptly rescinded; there has been no interruption in the functioning of the Intervenor under the contract; and the Intervenor has at all times actively repre- sented' the Canton employees under the contract. Finally, there. is no evidence of any confusion as to the identity of the bargaining representative. There is, therefore, no basis for the application of the schism doctrine. In accordance with the foregoing, we find that the contract of Sep- tember 28, 1949, executed by the Employer and the Intervenor, is a bar to a present determination of representatives. We shall, therefore, dismiss the petition. Order Vacating Decision IT IS ORDERED that the Decision of the Board dated July 11, 1951, in this matter be, and it hereby is, vacated. Order IT IS FURTHER ORDERED that, upon the basis of the foregoing findings of fact and upon the entire record in this case, the petition filed herein be, and it hereby is, dismissed. 10 94 NLRB 54. 11 Comwel Company, 88 NLRB 810. 938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD MEMBER . REYNOLDS, dissenting : I concurred in the July 11 Decision, now vacated, because I felt that, after the Supreme Court's decision in. Highland Park, we could not conscientiously do otherwise. I thought then, and I think now; that strong equitable considerations militate against holding the 1949 contract not to be a bar. However, that contract does contain a union- security provision which resulted from proceedings which the Su- preme Court now tells the Board it was "forbidden to conduct." Whatever the equities may be, no matter how clear the Intervenor's or the Employer's reliance upon the Board's 9 (e) certificate, .the fact is that the union-security clause was unlawfully included in the 1949 contract. One of the principal reasons for the Hager Hinge exception to the contract bar doctrine is the justifiable belief that contracts with unlawful union-security clauses exercise an unlawful coercive effect on those employees who do not choose to support the union. The Board quite properly refuses to permit such contracts to bar rival petitions. It seems to me that this is the decisive factor in the instant case. For almost 2 years, the employees in the Canton plant have been subject to the union-security provisions of the 1949 contract. The minority group in the plant, the existence and size of which the Board does not know, has been compelled by the contract now urged as a bar to pay dues and thus support the Intervenor. The Supreme Court says that the proceeding which was a condition precedent to this situation should not have been conducted in the first place. I refuse to join in a decision which gives such a contract any validity. The legal authorities cited by the majority to bolster their decision are not persuasive to me. The Moser, Chidot County, and other cases are all concerned with individuals who relied upon a statute, or inter- pretation thereof, later found invalid. The rights of no third persons were involved. In the. case before us, I think-it-is of paramount im- portance that the rights of those employees who are not adherents of the incumbent union be considered. Finally, I do not think the Board's Decision today effects a practical solution of the problems created by the Highland Park decision. If it did, such practical considerations would undoubtedly be entitled to serious consideration. However, the fact is that the majority decision does not negate the necessity of reholding union-security elections conducted before the CIO complied with the affidavit provisions of the Act on December 22, 1949. It is my view, and I cannot see any escape from it, that the union-security agreement in this case, and others like it, cannot be relied upon as a defense in an unfair labor practice case. In reality, therefore, unions wanting the benefits of union security will have to secure new 9 (e) certificates. I see nothing GLOBE IRON COMPANY 939 to-be gained by giving any semblance of validity to the 1949 contract in this case. On the contrary, it seems to me unwise to lead the con- tracting parties to believe that they can in any way rely upon union- security agreements executed under the circumstances here present. The remedy they seek lies with Congress and not the Board. Accordingly, I would reaffirm the Board Decision of July 11, 1951, hold the 1949 contract no bar to the pending petition, and proceed to a. determination of the appropriate unit question on the merits. CHAIRMAN HERZOG took no part in the consideration of the above Order Vacating Decision and Decision and Order. GLOBE IRON COMPANY, STANDARD SLAG COMPANY, AND THE JACKSON IRON & STEEL COMPANY and UNITED STEELWORKERS OF AMERICA, CONGRESS OF INDUSTRIAL ORGANIZATIONS, PETITIONER GLOBE IRON COMPANY and AMERICAN FEDERATION OF LABOR, PETI- TIONER. Cases Nos. 9-RC-1199 and 9-RC-121.5. August P2,1951. - Decision, Order, and Direction of Election Upon separate petitions duly filed under Section 9 (c) of the Na- tional Labor Relations Act, a consolidated hearing was held before Lloyd R. Fraker, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed Pursuant to the provisiolis of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Houston, Reynolds, and Styles]. Upon the entire record in this case; the Board finds : 1. The Employers are engaged -in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent employees of the Employers.2 3. A question affecting commerce exists concerning the represen- tation of employees of the Employers within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. Steelworkers, the petitioner in Case No. 9-RC-1199, seeks to represent a multiemployer unit consisting of the production and main- 1 American Federation of Labor, -herein called AFL, filed a motion with the Board for rehearing on the ground that the hearing officer erred in excluding certain evidence. See footnote 5, below, for discussion of this motion. 2 International Union of Mine, Mill and Smelter Workers, Local No. 170, herein called Mill Workers, was permitted to Intervene in both instant cases. AFL was permitted to intervene at the hearing in Case No. 9-RC-1199. United Steelworkers of America, CIO, herein called Steelworkers , was permitted to intervene In Case No. 9-RC-1215. 95 NLRB No. 110.