Coos Bay Lumber Co.

In the.Matter of Coos BAY LUMBER COMPANY and LUMBER AND. SAW- MILL WORKERS UNION LOCAL No. 2573 Case No. R-1344 Election Ordered: majority orders a run -off election following the previously established policy of the Board stating the reasons for ' such practice and discussing the contentions urged in the dissenting opinion against the run-off election procedure. SECOND DIRECTION OF ELECTION: October 26, 1939 On •August -30, 1939; the National Labor Relations Board, herein called the Board, issued a Decision and Direction, of Election in. the above-entitled proceeding.' The Direction of Election provided that an election by secret ballot be conducted within twenty (20) days from the date of the Direction among all the employees of'-Coos Bay Lumber Company, herein called the Company, engaged in occupa- tions within its manufacturing departments listed in Schedule A, annexed thereto, exclusive of executives, supervisory foremen, and clerical force, who were employed by the Company as of March 15, 1939, including employees who did not work at such time because they were ill or on vacation, and also any employees who had been employed by the Company between March 15, 1939, and the date of the Direction, but excluding employees who had since quit or been discharged for cause, to determine whether they desire to be repre- sented by Lumber and Sawmill Workers Union, Local No. 2573, affiliated with the United Brotherhood of Carpenters and Joiners of America, which in turn is affiliated with the American Federation of Labor, herein called the United, or by Lumber and Sawmill Work- ers, Local No. 116, affiliated with the International Woodworkers of America, which in turn is affiliated with the Congress of Industrial Organizations, herein called the I. W. A., for the purposes of collective bargaining, or by neither. Pursuant to the Direction, an election by secret ballot was held on September 15, 1939, .it Marshfield, Oregon, under the direction and supervision of the Regional Director for the Nineteenth Region, 114 N. L. R. B. 1206. 16 N. L. R. B., No. 50. 476 COOS BAY LUMBER COMPANY 477 Seattle, Washington. On September 19, 1939, the said Regional Director, acting pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 2, issued and duly served upon the parties an Election Report on the election. As to the balloting and its results, the Regional Director reported- as follows : Total No . Eligible Voters____________________________________ 456 Total No. of Valid Ballots Cast------- ----------------------- 419 Total No. of Votes in Favor of Lumber and Sawmill Workers Union, Local No. 2573, affiliated with the United Brother- hood of Carpenters and Joiners of America , AFL ----------- 195 Total No. of Votes in Favor of Local No . 116, International Woodworkers of America, afflliated with the CIO ----------- 188 Total No. of Votes in Favor of Neither_________ ______________ 36 Total No. of Blank Ballots______ ____________________________ . 0 Total No. of Void Ballots___________________________________ 0 Total No. of Challenged Votes_______________________________ 1 Total No. of Eligible Voters Not Voting ______________________ 36 The Regional Director recommended in. the Election Report that the petition in the proceeding be dismissed since neither union re- ceived a majority of the valid votes cast. Thereafter, the United, which had received the greater number of votes, filed exceptions to this recommendation, dated September. 22, 1939, including a request for a run-off election to determine whether or not the employees desired to be represented by it. No other exceptions or objections were made. On October 4, 1939, the Regional Director filed a Report on Objections Raised to Election Report, recommending merely that the exceptions be referred to the Board for action. In accordance with our usual policy we shall direct a run-off elec- tion to determine whether or not the employees in the unit desire to be represented by the United. In view of the objections raised by the dissenting opinion to the holding of run-off elections, we shall first set forth in some detail the considerations which have seemed to us controlling in the determination of these issues. Section 9 (c) provides that in any proceeding by the Board for the certification of representatives, the Board "may take a secret ballot of employees, or utilize any other suitable method to ascertain such representatives." The Act does not prescribe what particular form of ballot shall be used in Board elections; nor does it attempt to provide for any of the other details of the method used for ascer- taining representatives. In establishing election procedure the first problem which arises is whether or not opportunity should be afforded on the ballot for registering a voice against the particular labor or- ganization or organizations which appear on the ballot. It has been the policy of the Board to allow for such an expression of opinion by providing a place upon-the ballot in which an employee may vote 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD against representation by any of the organizations participating in the election. Thus, in elections where only one labor organization is involved, the ballot contains a place in which to vote for or against such organization. In an election where two or more labor 'organizations are involved the ballot contains a place in which- an .employee may vote for neither or none of the enumerated candidates. The reasons for the adoption of this form of ballot have been set forth in Matter of Interlake Iron Corporation ,2 and, need not be repeated here. , ` The practice of affording an opportunity to vote against the labor organizations appearing upon the ballot gives rise to a second,prob- lem.. In elections where two labor organizations are involved-it may, and rather frequently does, happen that the votes for neither organization, while less than a majority, are sufficient to deprive either organization of a majority. Such was the outcome in the instant case- where the United.received 195 votes, the I. W. A. 188 votes, and 36 votes were cast for neither. If the petition for cer- tification is thereupon dismissed, as the dissenting opinion urges, the result may be that a small minority of employees who desire no representation are able to.deprive the greater majority of employees of all opportunity for collective bargaining. The same issue arises where three or more labor organizations appear on the ballot and one obtains a plurality but not a majority.3 It may well be that a majority of the employees desire collective rep- resentation and can agree upon a single organization. To dismiss the petition for certification of representatives, under such circum- stances, is to frustrate collectiVe bargaining despite the wishes of a majority of the employees. In our opinion the most satisfactory solution of this problem is the device of a run-off election. Such an election eliminates the pos- sibility that an insignificant minority of employees, which happens to hold the balance between two or more competing organizations, can indefinitely forestall the selection of a collective bargaining agent. If a majority of the employees desire collective bargaining, and can unite upon a common representative, we see no reason to deny them the right to select such a representative. On the contrary, the hold- ing of a run-off election will, in our opinion, most nearly effectuate the express policy of the Act of "eizcoura.ging the practice and pro- cedure of collective bargaining." The dissenting opinion urges that the Board should not establish a procedure of run-off elections without express authority from 2 Matter of Interlake Iron Corporation and Amalgamated Association of Iron, Steel and Tin Workers of North America, Local 1677, 4 N. L. R. B. 55. See Matter of Aluminum Company of America and Aluminum Employees Association, 12 N. L. R. B. 237. COOS BAY LUMVER COMPANY 479 Congress. As - stated above, Congress in passing the Act made no attempt to embody in the statute any of the forms or details of the "secret ballot" or "other suitable method" of determining repre- sentatives. It was clearly the intention of Congress to leave such matters to the discretion of the agency charged with the adminis- tration of the Act. The device of a run-off election is not an un- common one; nor does it involve a fundamental issue of policy in labor relations. And, while there have been differences of opinion regarding the form of the ballot in run-off elections, the propriety of determining, collective bargaining representatives through the run- off procedure has never, so far as we are aware, been seriously questioned.4 . It is said that the run-off election "is a form of preferential voting to . create a second-choice majority where the first choice resulted in no majority." We do not see the significance of the fact that a majority resulting. from a run-off election can, in one sense, be characterized as a "second-choice' majority." The alternative to bar- gain through such a "second-choice majority" is to permit a small minority, in this case 36 votes, to thwart all collective bargaining despite the wish of a majority for that form of-dealing with the employer. Again, the objection that a run-off election results in an "artificial majority" seems to us without substance. There is no magic about a run-off election by which there is "created" a majority where none in fact exists. On the contrary, the employees have full freedom of choice and any majority which results is plainly a genuine majority. Again, it is argued that "it is not for the Board to say that [em- ployees] should vote for a competing organization rather than wait until they can win a few more adherents [for their own union] to make a majority." But nothing in the Board's practice requires employees to do any such thing: On the contrary, the run-off pro- cedure, as utilized by the Board, leaves the employees just as' free to vote against the competing organization as to vote for it. Finally, objection is 'made that the Board's practice of holding a run-off election only upon request'of the Union obtaining the higher number of votes is arbitrary. However, if the labor organization entitled to appear on the ballot in a run-off election does not wish to participate in such an election, it is difficult to see wherein it 4 See the decision of the New York State Labor Relations Board in Matter of Hotel St. George Corporation and Hotel & Residence Club Workers Industrial Union of Brooklyn, Local 28, Decision No. 055-B, October 10, 1939; International Brotherhood of Electrical Workers et al. V. National Labor Relations Board, decided June 28, 1939, by the Circuit Court of Appeals for the Sixth Circuit ; Run-offs in National Labor Relations Board Elec- tions, 8 International Juridical Association Bulletin, No. 3, p. 25 (Sept. 1939) ; testimony of Joseph A. Padway, Counsel for the American Federation of Labor, Hearings before the Senate Committee on Education and Labor on Proposed Amendments to the National Labor Relations Act, 70th Cong., 1st Sess., pp. 762 et seg. 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would effectuate the policies of the Act to compel it to do so. An election under such circumstances would almost certainly not result in the choice of a bargaining representative and would be futile. For all of the foregoing reasons we are impelled to adhere to the Board's past practice in conducting run-off elections. SECOND DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, and pursuant to Article III, Sections 8 and 9, of National Labor Relations Board Rules and Regulations- Series 2, it is hereby DIRECTED that, as part of the investigation authorized by the Board to determine representatives for the purposes of collective bargain- ing with Coos Bay Lumber Company, Marshfield, Oregon, an elec- tion by secret ballot shall be conducted as early as possible but not later than thirty (30) days from the date of this Second Direction of Election, under the direction and supervision of the Regional Director for the Nineteenth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Section 9, of said Rules and Regulations, among all the employees of Coos Bay Lumber Company, who were eligible to vote in the election of September 15, 1939, excluding those who have since quit or been discharged for cause, to determine whether or not they desire to be represented by Lumber and Sawmill Workers Union, Local No. 2573, affiliated with the United Brotherhood of Carpen- ters and Joiners of America, which in turn is affiliated with the American Federation of Labor, for the purposes of collective bargaining. MR. WILLIAM - 1M. LEISERSON, dissenting: I •cannot agree with the ruling of the majority directing a run-off election. A secret ballot has clearly shown that neither of the contesting organizations has been chosen by a majority of the employees. The allegiance of the employees is almost equally divided, 195 having designated one organization and 188 the other. It seems to me stretching the discretion of the Board beyond proper bounds to order now another election in which the choice of .the employees is to be limited to the one organization which received the 195 votes.and to deny the employees an opportunity to vote for the other organization which had only 7 votes less. The so-called run-off election here ordered is a form of prefer- ential voting to create a second-choice majority where the first choice resulted in no majority. Section 9 (c) of the Act authorizes the Board to certify the representatives that have been designated or selected by the majority of the employees. in a unit appropriate for COOS BAY LUMBER COMPANY 481 collective bargaining. When an election results in no majority, it is plain that the Board may not issue any certification , and accord- ingly the Board dismisses petitions for certificates in many cases where no representative receives a majority vote. It should do so in all cases and should not inaugurate a controversial system of second-choice voting without express ' authority from Congress. Whenever there are more than two candidates on a ballot, there is a possibility that the election will result in no majority.b Con- gress might have provided that in all such cases a plurality shall prevail , but it saw fit not to authorize certification on a plurality vote. .Congress might also have provided that whenever there are more than two candidates the voters shall indicate their- first and second choices and that a majority should be calculated on the basis of the second-choice votes. If this were done no run-off election would be necessary . But Congress did not see fit to adopt this device. The so-called run-off election is merely an alternative method of indicating second choices. If Congress did not authorize the first method, I cannot see how it can be assumed that the alterna- tive method is justified. The so-called run-off election itself offers various methods of arriving at a majority. A most common form of run-off ballot gives the -voters a choice between the two highest candidates in the first election . Instead of using this form, the Board in the present case places the name of only one organization on the ballot and requires the employees to vote for or against this representative. There. .are -,als.o other methods of balloting in run-off elections which people consider preferable in indicating second choices. Whether elections should be conducted on the basis of simple majorities, second choices, or other forms of preferential voting are political questions on which the people of the country have strong differences of opinion. I think the Board should refrain from adopting any of the systems of second-choice voting to create an artificial majority where the first; choice results in no majority. The majority opinion argues that "if a majority of the employees desire . collective bargaining, and can 'unite upon a common repre- sentative, we see no reason to deny them the right to select such a representative." . The Board does not know , however, that they. desire to . unite upon such a representative. It creates a condition under which they must vote for or against one representative, and the effect of this is to force those who are opposed to this repre- sentative, but want another, to. vote against any collective bargain- 5 To a large extent the elections which produce inconclusive results are caused by the policy of addinn on every ballot a p'ace for voting against any collective bargaining rep- resentative . The question whether this should be done or not is not involved in the present ease. 482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing. I think that this kind of a run-off election thwarts rather than effectuates the collective bargaining policy of the Act. The essential dispute that the election is designed to settle is between the two labor organizations, one of which received 19,5 votes and the other 188. To say that they can unite upon a common representative is the same as saying that the members of one organi- zation should transfer their allegiance to the other. Employees have many and strong reasons for remaining loyal to their unions even though they do not receive a majority vote in an election. It is not for the Board to say that they should vote for a competing organi- zation rather than wait until they can win a few more adherents to make a majority. We are told also that if the petition is dismissed " a small minority of employees who desire no representation are able to deprive the greater majority of employees of all opportunity for collectives -bargaining." But this is exactly what the run-off election , accom= plishes when the employees vote against all collective bargaining rather than for the one representative on the ballot. Approximately half the run-off elections thus far held by the Board have brought this result. Further, the Board does not order a second election in all cases where the first results in a plurality. The actual practice is to dismiss all such cases except where the request is made for a run-off election by the organization which received the highest number of votes.6 It seems to me arbitrary to order a run-off election in a case like the present one at the request of the organization which had seven more votes than the other, and not to order such an election if a request is not made. Collective bargaining is pre- vented in all cases where elections result in no majority. If Con- gress intended that no representative should be certified in some of these cases; I cannot understand how it can be assumed that a portion of the cases should be otherwise treated. In any case, it does not seem to me to be within the province of the Board to seek ,second or third choice majorities by one of the questionable methods of preferential voting. The petition for certification of representatives should be dis- missed without prejudice to the right of either organization to file a new petition whenever it can make a prima facie showing that it is the designated representative of a majority of the employees. 9 See Matter of Interlake Iron Corporation and Amalgamated Association of Iron, Steel and Tin Workers of North America, Local 1657, 4 N. L. R. B. 55, 62: Matter of Waggoner Refining Company, Inc. and International Association of Oil Field, Gas Well and Refinery Workers of America, 8 N. L. R. B. 789.