The Budd Co.

1 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Conclusions The Trial Examiner finds merit in the Union's position. Whether Douds actually approved or "consented" to Dealey's withdrawal requests or not4 and whether charges actually remained technically in effect or nots , are not the only points for consideration. Having officially been informed by a responsible agent of the Board that Douds had approved the withdrawal, and having made settlement in accordance with that information, the Union was justified in relying upon it as a fact. Any other conclusion, it appears to the Trial Examiner, must diminish public confidence in the administration of the Act. It is therefore concluded that the complaint in these consolidated cases was improperly issued, and that consideration of the merits of its allegations would not effectuate the purposes of the Act. [Recommendations omitted from publication.] 4 The Board's Rules and Regulations are silent as to any requirement of "signing," by the Regional Director, of the request-for-withdrawal form. Sec 102.9 says, on the point: "Any . . charge may be withdrawn ... only with consent of the regional director , . In this case the Trial Examiner considers that Altman used the word "approval" and Weiss reasonably so accepted it, as synonymous with "consent." S The Trial Examiner is convinced, from the probabilities inherent in the situation as described by Weiss, that Douds consented to the withdrawal of the charges, that Altman correctly informed Weiss of such consent, that the charges were effectively withdrawn within the meaning of the Board's Rules and Regulations, but that the Regional Director mistakenly believed that later events warranted reinstatement of the May 19 charges. (See Square D Company, 105 NLRB 253.) THE BUDD COMPANY and INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT, & AGRICULTURAL IMPLE- MENT WORKERS OF AMERICA, UAW-CIO, Petitioner. Case No. 4-RC-2006. November 20, 1953 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Bernard Samoff, hearing officer. The hearing officer's rulings made at the hear- Ing 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 Act. 2. The labor organizations involved claim to represent certain employees of the Employer. 3. No question affecting commerce exists concerning the representation 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: On September 28, 1951, the Intervenor, the Budd Field Plant Employees Union, herein called the Independent, was certified as the collective-bargaining representative of the Employer's production and maintenance employees.' Thereafter, on May 29, 'The Budd Company, 91 NLRB No. 105 (not reported in printed volumes of Board's decisions). 107 NLRB No. 48. THE BUDD COMPANY 1 17 1952, the Employer and the Independent entered into a 5-year contract, to expire May 29, 1957, and automatically renewable thereafter from year to year unless notice to terminate is given by either party within 60 days of expiration. The Employer and Intervenor contend that this contract is a bar to a present deter- mination of representatives. The Petitioner asserts that the con- tract is not a bar because (1) the unit has expanded causing a substantial and material change in its character; and (2) a schism has occurred creating a doubt as to the identity of the representative of the employees in the unit. The Expanding Unit Prior to the election and certification in September 1951, the instant plant, known as the Red Lion Plant, was engaged in the manufacture of railway cars, aircraft, and other allied steel products. Shortly thereafter, the Employer commenced tomanu- facture two new products, namely, metal parts for jet engines and chassis frames for automobile manufacturing customers. The chassis operation, presently known as Departments 110 and 111, was administratively established in September 1952. The jet engine operation, known as Department 155, was established in December 1951. _ On the date of the election and prior to the establishment of the two new products, there were 1,354 employees in the unit. On May 29, 1952, the date of the contract, there were 2,143 employ- ees. The peak employment was reached January 2, 1953, when there were 3,457 employees.' When the petition was filed on May 19, 1953, there were 3,160 employees in the unit, and on June 12, when the hearings began, there were 3,131 employees. The evidence also shows that from 36 to 39 percent of the present 23-acre main assembly building is devoted to the new products.4 However, the job classifications with very few excep- tions have remained the same. Although such tasks as pressmen perform, together with machine tool work and painting are not the same as in railroad product operation,s the great bulk of over 130 job classifications have not changed fundamentally.6 2 Although the jet engine department was established earlier than the chassis department, the former constitutes only a minor portion of the new operations. 3In April 1953, shortly prior to the filing of the instant petition, some 400 employees were laid off due to a temporary curtailment in the jet engine department. 4 There was testimony to the effect that the Employer is planning on still further expansion in the form of a new plant for the chassis operation. However, such testimony was too in- definite and uncertain to be given substantial weight in the consideration of this issue. 5 Petitioner introduced evidence to the effect that pressmen require the use of greater skill when working on railroad cars than on chassis, that while machine tool operators on the old products used precision instruments, they seldom used such instruments on the new, and that painting on the new products was entirely mechanical in contrast to painting which required manual application on the railroad products. 6 The evidence showed that out of 131 job classifications in use at 5 different dates since the election in September 1951, only 4 titles which were used on the contract date were not listed a year later, and that only 7 others which were listed in May 1953, were not listed in May 1952, the contract date. 1 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Contentions of the Parties As noted above, the Petitioner claims that a subsequent expan- sion of the unit,7 plus a material alteration in the character of the unit itself prevents the existing contract from operating as a bar.9 In support of its contention , that the character of the unit has been changed , the Petitioner points out that the old products, namely railroad cars, are custom built jobs as compared with chassis and jet parts which constitute mainly assembly-line operations , the former requiring much greater skills than the latter and entirely different administrative factors. The Independent , on the other hand, denies the Petitioner's claim regarding a change in the production processes . In sup- port of its contention that the nature of the production process has not changed despite a substantial increase in the number of employees , the Independent maintains that the job classifica- tions have remained the same and have not undergone any fundamental change . The Independent' s position is supported by the Employer who also contends that skills have not changed; that the presses , machine tools and welding equipment employed in the new departments were used in railroad car manufacture; and that transfers between the old and the new operations are relatively constant. The Application of the Expanding Unit Doctrine The Board has held that where the character of the bargain- ing unit has changed during a contract term, such contract is not a bar to a determination of representatives .9 However, in 7 The record discloses that from the date of the contract to the peak of employment, prior to the layoff in April 1953, there was an increase of 60 percent in the number of employees; and that from the date of the contract to May 19, 1953, the date of the filing of the petition or to June 12, 1953, the date nearest the hearing, there was an increase of 46 percent. Although the Petitioner relies on expansion subsequent to the contract date, it also urges that in considering the expanding unit doctrine , the Board should depart from its previous policy and find that in the instant case, the earlier date of the last election rather than the contract date is controlling . However, because of our finding herein on the extent to which the bargaining unit has changed, we find it unnecessary to decide which date is controlling in considering the expanding unit issue. 8 The evidence shows that on August 19, 1950 , the Employer and the independent executed a 2-year contract to expire August 21, 1952 On December 21, 1950, a supplemental agree- ment was entered into extending that contract to August 19, 1955. On May 20, 1952, the present contract expiring May 29, 1957, was executed. As it is evident that the current contract was executed in the current certification year and no issue was raised as to whether this 5-year contract is not a bar because of its 5-year term, we do not find it necessary to determine at this time whether this contract would be a bar after the first 2 years which will expire in May 1954. 9 A contract executed prior to the commencement or establishment of a new plant is not a bar . Scrivner Stevens Co., 104 NLRB 506; Atlantic Refining Co., 96 NLRB 952; Richard Alan Button Co., 94 NLRB 1429; Westinghouse Electric Corporation , 87 NLRB 463; General Electric Company, 85 NLRB 150 ; Santa Fe Trail Transportation Company, 81 NLRB 132; Ball Brothers Company of California , Inc., 80 NLRB 1316; Champion Motors , 72 NLRB 436. The Board has also held a contract not a bar where a reconstructed plant was involved; Michigan California Lumber Co., 96 NLRB 1379, or a reactivated plant, Carbide & Carbon Chemical Division, 98 NLRB 270; Sheets & Mackey, 92 NLRB 179. THE BUDD COMPANY 119 order to invoke the expanding unit doctrine, not only must the size of the unit have changed so that the numbers employed at the date of the contract cannot be said to be representative of those at the time of the filing of the petition or at the hearing, but the nature of the production processes must also have changed to such an ex- tent that the character of the unit has been materially altered.'° We find on the basis of the present record, that although the number of employees have increased substantially, the produc- tion processes have not been materially altered. Thus, it is clear that less than 1 percent of the job classifications have been changed. No new skills have been introduced. On the contrary, the Petitioner conceded that lesser skills or no skills at all are required for the new products. Although the Board has held that, where a contract was executed prior to the es- tablishment of a division or department for the manufacture of a new product and some labor organization seeks to represent the employees in the new operation separately, such contract is not a bar, 11 this is not the situation in the present proceeding. As the Petitioner seeks to represent the entire production and maintenance unit and as the character of such unit has not been fundamentally altered, we find no basis for applying the expanding unit doctrine in this case. The Schism On Monday, April 20, 1953, at about 11 a. m. the employees in the chassis department walked off their jobs when they learned that the Employer had put a wage-rate reduction into effect. The next morning, Clime, the president of the In- dependent, spoke to the strikers, urging them to go back to work, and stating that he would try to get the cut rescinded and that if he could not, the Independent would support the strike. The men returned to their jobs, and at about 11:30 a. m. after an announcement that the cut would not be rescinded, the employees walked out and assembled on the lawns of the plant. Thereafter, Clime announced there would be a meeting of the Independent the next day, April 22. ' Picketing was begun and picket lines established. The evidence shows that numerous employees refused to cross the picket lines. Immediately after the walkout, some 400 striking employees went to the subregional offices of the Petitioner and there signed membership cards, requesting information as to ways and means of affiliating with Petitioner . The strikers were in- formed that acceptance of the group as a local of Petitioner 10 Decker Clothes Inc., 83 NLRB 484. U Armstrong Cork Company (Lancaster Floor Plant), 106 NLRB 1147; Delta Tank Mfg. Co., Inc. (Shell Division), 100 NLRB 364. In such cases, the Board has granted the employees in the new operation an opportunity to decide whether they wish to join the estab- lished unit or to be separately represented. 12 The inferred purpose for the meeting was to discuss the grievance based on the wage cut in the chassis department and the strike resulting therefrom. 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would not take place until the return of the regional director at the end of the week. In the meantime, these employees having discussed an affiliation resolution with Petitioner, met in the Petitioner's building and considered a plan for acting on the affiliation resolution at the scheduled meeting of the In- dependent on April 22, announced by Clime. These employees announced this move to other employees by word of mouth, but there is no evidence of any posted or other public announce, ment that the purpose of the meeting would be to consider the question of affiliation. The Affiliation Meeting of April 22 and Events Relating Thereto Evidence as to the number of employees attending this meet- ing is conflicting, the Petitioner claiming that 700 employees were there, the Independent contending that not over 450 persons could have been accommodated at the premises. Is Clime opened the meeting by referring to the strike, at which so much booing, clapping, and whistling followed that he was unable to maintain order. An effort was made by a CIO adherent to read the affiliation resolution but failed when Clime ruled the resolution out of order. However, in accordance with motions from the floor, the CIO employee, who was the leader of the affiliation movement, read the resolution, which upon a sub- sequent motion from the floor was unanimously adopted. Thereupon, Clime and the officers of the Independent walked out of the meeting. Following the adoption of the resolution, the membership appointed a steering committee consisting of 25 employees representing some 10 departments of the unit. This committee decided to call a meeting for the following day, April 23, to complete and reaffirm the affiliation. Some 3,000 leaflets were mimeographed in the office of the Petitioner and were distributed to employees during that day. The announce- ment of the meeting did not mention the subject of affiliation but declared that it was to organize, stating that "WE NEED REPRESENTATION IN OUR EVERY-DAY WORKING PROB- LEMS." It was signed by "Worker's Committee for Honest Representation." At the April 23 meeting, which Petitioner contends was attended by some 1,200 employees, the resolution to affiliate the Independent with the Petitioner was again unanimously adopted, the steering committee was enlarged and was directed not only to meet with management but also to impound the treasury. 14 Thereafter, because management refused to meet 1sPetitioner contends that only employees showing their badges were permitted to enter the meeting hall., The Independent claims that people rushed in and no badges were shown. The Independent claims that the meeting was intended only for employees of the chassis department; however, it does not deny Petitioner's evidence that employees from several departments did attend. 14 The Petitioner has not taken action to have the employees revoke the checkoff to the Independent, as it is the Petitioner's position that the Independent is the Petitioner. Local 92, and that court action will be instituted with reference to the Independent's treasury. THE BUDD COMPANY 121 with any employees unless the strikers returned to work, the steering committee called another meeting for April 25 to discuss this question . 11 This meeting was also attended by some 1,200 employees, and a vote was carried to return to work. On this occasion, a reactivated charter which had been issued by the International UAW was presented to the group now known as Local No. 92 of the Petitioner. On May 23, 1953 , Local 92 met and elected a completely new slate of officers , following which it requested recognition from management. The latter has, however, refused to recognize Local 92 or any representative of the Petitioner. The Petitioner urges that this is a true schism and not in any sense a raiding expedition , that the Petitioner has been interested in these employees for many years ; that the entire rank-and-file membership of the Independent has gone over to the Petitioner , leaving the Independent only with its Com- mittee of the Whole consisting of the former officers and stewards of the Independent ; 16 that the Petitioner has a complete slate of officers ; is ready, able, and willing to administer the contract ; and that it is solely because of the Employer's refusal to recognize the Petitioner that grievances have not been processed. The Independent contends that it is presently administering the contract through its Committee of the Whole who have remained loyal to the Independent ; that it is a functioning organization ; that it has processed numerous grievances; that it has an active bank account; that the employees have not revoked the checkoff authorizations; and that the Employer has continued to recognize it as the exclusive bargaining representative. It is clear from the evidence that the initial meeting of April 22 was not called or announced as an affiliation meeting; neither was it called for the purpose of considering any affiliation move. The subsequent meetings called for the pur- pose of completing the affiliation of the April 22 action were likewise not announced as being for the purpose of affiliation. We therefore find that notwithstanding the giving of informal notice by leaflets or word of mouth, these meetings and the alleged "affiliation" resolution do not comply with the require- ments of formalized action which the Board has held to be a prerequisite to the recognition of a true schism . 17 We find, ss Leaflets for this meeting were also printed with clerical help of Petitioner , and some 3,000 were again distributed. These went out under the caption of "ATTENTION ALL BUDD FIELD EMPLOYEES," and signed by "BUDD FIELD EMPLOYEES UAW-CIO COMMITTEE " 16 As evidence of the widespread discontent of the rank-and-file membership, the Peti- tioner points out that over 2,400 of the present 3,100 employees have signed application cards to join the Petitioner. It also contends without contradition that no general member- ship meetings have been held by the independent since the "affiliation" move. 17 Lewittes & Sons, 96 NLRB 775; Allied Container Corp , 98 NLRB 580; West Steel Castings Co., 98 NLRB 153. In view of this finding, we find no necessity for passing on the issue raised by the Independent, that the Petitioner improperly participated and directed the affiliation move. For cases in which this issue has been considered , see Rex Curtain Corp. 97 NLRB 899; General Electric Co., 98 NLRB 134. 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD furthermore , that despite the defection in the ranks of the employees , the Independent still remains as a functioning organization , able , ready, and willing to administer the contract . Under these circumstances, we find that there is no confusion as to the identity of the bargaining agent recognized by the Employer. There being no schism or other basis for avoiding the normal consequences of an existing contract, we find that the current contract is a bar to an election at the present time . Accordingly , we shall dismiss the petition. [The Board dismissed the petition.] UNITED STATES GYPSUM COMPANY and LOCAL 278, UNITED GAS, COKE AND CHEMICAL WORKERS OF AMERICA, CIO, Petitioner . Case No . 13-RC-3032 . November 20, 1953 SUPPLEMENTAL DECISION AND DIRECTION On July 28 , 1953 , pursuant to the Board' s Decision and Di- rection of Election ,' an electionby secretballotwas conducted, under the direction and supervision of the Regional Director for the Thirteenth Region, among the employees in the voting group established by the Board, to determine whether or not the said employees wished the Petitioner to represent them for purposes of collective bargaining . Upon the conclusion of the election , a tally of ballots was furnished the parties, in accordance with the Rules and Regulations of the Board. The tally shows that all of the 26 ballots cast were challenged. 2 Thereafter , on August 6, 1953 , the Employer filed objections to the election. On August 19, 1953, after having duly investi- gated the issues raised by such objections and challenges, the Regional Director issued and duly served upon the parties his report on objections and challenges , recommending that the objections be dismissed in their entirety and that all of the challenges be overruled and the ballots be opened and counted. Thereafter , the Employer filed timely exceptions to the Regional Director ' s report. I 1105 NLRB 931. 2 Of the 15 categories of employees, hereinafter generally referred to as key operators, sought by the Petitioner (all of whom the Employer contended were supervisors ), the Board found that the employees in 4 of these classifications were supervisors, and excluded them from the voting group. Of the remaining categories , the perlite tube operators, for reasons discussed below, were permitted to vote subject to challenge , and as to all the other cate- gories of remaining employees sought , hereinafter called key operators, the Board found they were not supervisors and that their interests were similar to those of the production and maintenance employees whom Petitioner presently represents . Accordingly, the Board held that they might appropriately be included in the existing certified production and mainte- nance unit, if a majority of them so desired. 3 In the absence of exceptions thereto, the Board hereby adopts the findings of the Regional Director that employees Bozak , A. Woolard, L. Woolard, and Gibbons , all of whom were challenged by the Board agent, were at the time of the election properly part of the voting group. However, the Employer's exceptions with respect to their alleged supervisory status, appear to cover these 4 employees , as well as the 22 whom it challenged. 107 NLRB No. 39.