Jefferson City Cabinet Co.

JEFFERSON CITY CABINET CO. 327 unit, as well as the unit set forth in the contract, excludes tech- nicians.13 In addition, the Employer asserts that it has groups of technical employees who are not represented, including "employees who assist professional engineers in the mathematical field . . . employees work- ing in the field of chemistry, metallurgy, hydraulics, electricity, nuclear energy, and various fields of that type. . . ." Although these groups were not further identified, and the record does not establish that all of them are technical employees as defined by the Board, the Petitioner did not claim that the employees here involved were the only unrepresented technical employees, and it seems clear, from the entire record, that inclusion of the category here sought would leave other technical employees unrepresented. The Board will not include in any bargaining unit only a segment of the technical employees in an operation.14 The Board likewise will not include such employees in a production and maintenance unit where, as the Employer did here, any party makes a timely objection to the inclusion of such employees." The circumstances that when the operation here involved was first established on an experimental basis, the original employees were transferred from a production department, and temporarily retained their production unit status, cannot alter these well-estab- lished Board policies. For the foregoing reasons, we find that the laboratory electronics technicians A working in the Employer's aerophysics laboratory are not included in the unit of which the Petitioner is the certified collec- tive-bargaining representative." We shall therefore deny the Peti- tioner's motion for clarification which requested such inclusion. [The Board denied the motion for clarification.] 18 See General Electric Company, 119 NLRB 1233. 1{ Allied Chemical & Dye Corporation, 120 NLRB 68 ; Chapman Valve Manufacturing Company, 119 NLRB 935 ; General Electric Company, supra; Solar Aircraft Co., 116 NLRB 200, 202. 18 General Electric Company. supra ; American Potash & Chemical Corporation, 117 NLRB 542, 544. 18 The foregoing is not to be taken as a new certification. Jefferson City Cabinet Co. and Local Union No. 2839, United Brotherhood of Carpenters and Joiners of America , AFL-CIO, Petitioner. Case No. 10-RC-3935. April 8, 1958 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 Hugh Frank Malone, 120 NLRB No. 53. :328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Act. 2. The labor organizations involved claim to represent certain employees of the Employer? 3. Shortly after the petition herein was filed by the officers of Local 2839, a "Supervisor" (trustee) over that Local was appointed by the International. The Supervisor thereupon suspended the Local officers I and appointed new Local officers. Prior to the issuance of the notice of hearing herein, withdrawal requests were filed with the Board's Regional Office by the Supervisor and jointly by the appointed president and secretary-treasurer in the name of the Local. The Regional Director took no action with respect to the Supervisor's withdrawal request, and that of the appointed officers was referred to the Board by the hearing officer as a motion to dismiss. In addi- tion, during the hearing the International moved for dismissal of the petition 4 These requests for withdrawal and dismissal were made 1 United Brotherhood of Carpenters and Joiners of America , AFL-CIO, hereinafter referred to as the International , was permitted to intervene over objections of the Petitioner , hereinafter referred to as Local 2839 , and of International Union of Electrical Radio & Machine Workers, AFL-CIO, hereinafter referred to as the IUE Those objections -were grounded on the failure of the International to make a showing of interest among the employees involved herein We find such objections without merit , inasmuch as the International has placed Local 2839 under its supervisorship and particularly in view of the dispute between Local 2839 and the International , which is discussed more fully below. The International requested that the Board reconsider its General Box Company decision (82 NLRB 678 ), which permits the filing of a petition by a contracting union during its contract term to secure the benefits of certification . This request is denied . The Inter- national took the alternative position, with which Local 2839 agreed, that where a petition is filed as permitted by General Box, the case is not open to intervention by a rival union. They therefore opposed the intervention of the IUE, and Local 2839 also opposed inter- vention by International Brotherhood of Electrical Workers Local Union No . 760, AFL- CIO, hereinafter referred to as the IBEW . However, a union may not raise a question of representation during its contract term and at the same time assert its contract as a bar to intervention by a rival union . Dongan Electric Mfg Co., 116 NLRB 1440 , footnote 3, and cases cited therein. The hearing officer therefore properly permitted the IUE and the IBEW to intervene. 2 The parties stipulated that the IBEW is a labor organization within the meaning of the Act but did not so stipulate as to the other participating unions The record shows that Local 2839, the International , and the IIIE exist for the purpose of dealing with employers , on behalf of their members , concerning grievances , labor disputes, wages, rates of pay, hours of employment , and other conditions of work. We find, therefore, that Local 2839 , the International , and the IIIE are labor organizations within the meaning of Section 2 (5) of the Act . Nyman-Gordon Co., Ingalls Shepard Division, 117 NLRB 75. 3In order to distinguish between the opposing Local officers herein, the original slate is referred to hereinafter as the elected officers and the new slate is referred to as the appointed officers. b The initial- basis on which dismissal is requested is that there is a fatal defect in the petition's execution because the form was signed in blank by the recording secretary and therefore the declaration as to the truth of the statements contained therein is false. It is undisputed that the petition forms were signed in blank after ' all the elected officers had authorized the recording secretary , in writing, to petition the Board for 'certification. On the next working day, the elected president and the Local's attorney visited the Board's Regional Office. The necessary information was inserted in the previously signed forms during that visit. At that time the president 's name was typed at the bottom of JEFFERSON CITY CABINET CO. 329 on the ground that the elected officers had been replaced and were without authority to maintain the petition. The elected officers, on the other hand, contend that the appointments of the Supervisor and of the appointed officers were not in accordance with the provisions of the International's constitution and that therefore they are not authorized to act on behalf of the Local. The Employer supports the position of the International, whereas the IUE supports the position of the elected officers. The background of this dispute is as follows : On August 4, 1956, shortly after the Employer began its opera- tions at the plant involved, the Employer and Local 2839 executed a collective-bargaining agreement, retroactive to June 1, 1956, and effective until May 31, 1961. No board election or certification pre- ceded the recognition of Local 2839. The International is not a party to that contract. From the beginning of its contractual relationship, the Local evi- dently experienced considerable difficulty in securing the support of the employees in the unit. As a result, the elected officers, over a period of about 8 months preceding the filing of this petition, dis- cussed the advisability of seeking Board certification, and it is clear that they believed they were acting on the suggestion of the Inter- national in filing the representation petition. There is no question but that the elected officers, as such officers, had the authority to file the petition at the time they took that action. Moreover, on the evening of the date on which the petition was filed,. a special membership meeting was held at which the officers reported the step taken and stated that if the membership did not approve the action, the petition would be withdrawn. The vote on that ques- tion resulted in unanimous approval by the membership of the main- tenance of the petition. No subsequent vote of the membership was taken on this question. Shortly after the petition was filed, the International, upon noti- fication by the Employer of such filing, placed the Local under supervisorship. The reasons asserted therefor are (1) that there was a rumor that the Local was about to strike in violation of the no-strike clause of the existing contract, and (2) that there had been "common talk" in the community that the elected officers were meet- ing with IUE representatives. The elected officers dispute the truth the form, in his presence, and he was prepared to sign it. However, the field examiner informed him that this was unnecessary , inasmuch as it was already signed We find no merit in the contention that the execution of the petition was fatally defective . General Electric Company Appliance Service Center, 96 NLRB 566 . Moreover, even if the signa- ture was affixed improperly , the Board agent was responsible for the failure of the Local president to sign the form after its completion . We have frequently held , under analogous circumstances, that it would be unfair to penalize a petitioner for acting on the Board agent's advice See, e. g, Montgomery Ward & Go, 118 NLRB 310; Natvar Corporation, 109 NLRB 1278 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of these reasons. As to (1), it is uncontradicted that representa- tives of the International participated in whatever strike discussion did take place ; as to (2), the evidence consists merely of testimony by representatives of the International that reports to this effect had been received.5 With respect to the withdrawal requests by the Supervisor and the appointed officers, it is clear that a resolution of the contention that their appoinments were invalid would require the interpreta- tion and application of the provisions of the International's consti- tution. However, this is an internal union matter into which the Board will not inject itself.6 Therefore, we specifically do not make such a determination and, in accordance with our usual practice, will not interfere here with the right of the parent to control its local. We accept, for purposes of this decision , the International's position that the appointments were validly made under the provisions of its constitution and that the appointed officials are the current repre- sentatives of the petitioning Local with full authority to act for that Local. The only question before us , therefore, is whether the Petitioner herein should be permitted to withdraw its petition . While the Board traditionally permits the withdrawal of a representation peti- tion in the absence of a showing that prejudice will result,' the Board may, in the exercise of its administrative discretion , deny such a request. Exercising such discretion, we believe that under the pe-- culiar circumstances of this case the Act will be best effectuated by the conduct of an election among the employees in the unit herein- after found appropriate." The International's motion for dismissal of the petition must be denied, since the International is not the party which filed the peti- tions In addition, it is not a party to the bargaining relationship between the Employer and Local 2839. 8 Although an IIIE representative appeared at the attorney's office at the time the elected officers executed the written authorization to file the petition and that representa- tive assisted the attorney in phrasing the authorization , the weight of the evidence is to the effect that his appearance at that time was unexpected. We do not believe that his participation in the drafting of the authorization is a sufficient basis for finding that the elected officers were acting in collusion with the IUE in filing the petition , since there is no evidence that the IIIE instigated the petition . Cf. Armco Drainage & Metal Products, Inc., 116 NLRB 1260 ; Southeast Ohio Egg Producers , 116 NLRB 1076. It may be noted, further, that the attorney who was consulted on that occasion did not represent Local 2839 in this proceeding and is not alleged to have acted for Local 2839 or for any other labor organization at any other time 6 See, e g., The Texas Company, Port Arthur Works and Port Arthur Terminal, 112 NLRB 169, and Pollock Paper Corporation ( Waterproof-Ohio Division ), 115 NLRB 231. 7 Underwriters Salvage Company of New York, 76 NLRB 601. e Unlike our dissenting colleagues , we do not construe our decision in this case to en- graft any condition upon the processing of representation petitions under the General Box rule. Rather , we have specifically relied only upon the facts of this case and intend to limit our decision to these facts. 9 Dryden Rubber Division , Sheller Manufacturing Corporation, 110 NLRB 1652. See Section 101 .17 (b) of the Board's Statements of Procedure. JEFFERSON CITY CABINET CO. 331 Accordingly, we deny the International's motion for dismissal and the Supervisor's and appointed officers' requests for withdrawal of the petition, and find that a question affecting commerce exists con- cerning the representation of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. In accordance with the stipulation of the parties, we find that all production and maintenance employees at the Employer's Jefferson City, Tennessee, manufacturing plant, excluding all professional, technical, and clerical employees, supervisors as defined in the Act and other management personnel, plant guards, and over-the-road truckdrivers, constitute an appropriate unit for the purposes of col- lective bargaining within the meaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication.] MEMBERS RODGERS and FANNING, dissenting : We would permit the withdrawal of the petition. There is no doubt that the petition was filed by the proper constituent authority of Local 2839. Neither is there any doubt that had that authority remained in office, it could have withdrawn its petition at any time prior to election. We believe that the right to withdraw the petition necessarily and logically devolves upon the Supervisor and other appointed officers, since they are in fact and law the present and only constituent authority of Local 2839. Unlike the majority, we perceive no unusual or peculiar circum- stance which justifies this agency's intervention in the internal affairs of the labor organization, to the extent of overturning its established constitutional procedures and requiring it to jeopardize its protected status by forcing it to an election which it does not want, which the law does not command, and which both precedent and policy dictate should not be held. The Board has long held that a petition by a recognized union to gain the benefits of certification raises a question of representation.10 By its decision here the majority has engrafted upon this rule a condition not otherwise imposed in the processing of our representa- tion petitions. Thus we interpret the decision to hold that henceforth when a petition is filed as permitted by General Box it is not governed by the traditional policy of the Board which permits its withdrawal in the absence of a showing that prejudice will result." Because such an impediment would work unnecessary hardship upon a recognized labor organization and unduly prejudice it in the contractual rela- tions it already enjoys, we would not promulgate such an exception and would grant the request to withdraw this petition. w General Boa Co., 82 NLRB 678. 21 Underwriter8 Salvage Company of New York, supra.