R. K. LeBlond Machine Tool Co.

In the Matter of R. K. LEBLOND MACHINE TOOL Co., CINCINNATI ELECTRICAL TOOL Co. and INDEPENDENT EMPLOYEES ORGANIZATION Case No. R-1655 Machine Tool, 17auutacturtng Industry-Supplemental Decaston-Procedure as to Run-off Election: pi evious practice of providing places on the run-off ballot to vote for or against the labor organization which received a plurality at the first election, changed, under the circumstances involved, to providing places to vote for either organization, but no place in which to vote again for "neither"-Election Ordered: run-off. SUPPLEMENTAL DECISION AND SECOND DIRECTION OF ELECTION March 30, 1940 On January 30, 1940, the National Labor Relations Board, herein called the Board, issued a Decision and Direction of Election in this proceeding,' directing that an election by secret ballot be conducted among certain employees of R. K. LeBlond Machine Tool Co. and Cincinnati Electrical Tool Co., herein called the Companies, to de- termine whether they desired to be represented by Independent Em- ployees Organization, herein called the Independent, or by Local No. 1702, Amalgamated Association of Iron, Steel & Tin Workers of North America, herein called Local No. 1702, or by neither, for the purposes of collective bargaining. Pursuant to the Direction of Election, an election by secret ballot was conducted on February 14, 1940, under the direction and super- vision of the Regional Director for the Ninth Region (Cincinnati, Ohio). On February 15, 1940, the Regional Director, acting pur- suant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 2, as amended, prepared and duly served upon the parties an Election Report, setting forth the results of the election but making no recommendation with respect to certifi- cation because of the indecisiveness of the results, and also setting forth a request from Local No. 1702 for a run-off election. As to the results of the balloting, the Regional Director reported as follows : 1 19 N. L R B 1049 22 N. L. R. B., No. 17. 465 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Number of eligible voters----------------------------------- 574 Number of ballots placed in ballot box---------------------- 555 Number of unchallenged ballots for Amalgamated Association of Iron, Steel & Tin Workers of North America, Local No. 1702-------------------------------------------------- 266 Number of unchallenged ballots for Independent Employees Organization- ------------- - i ------------------------------ 236 Number of unchallenged ballots for neither ------------------ 44 Number of challenged ballots-------------------------------- 7 Number of blank ballots------------------------------------ 1 Number of spoiled ballots----------------------------------- 1 Objections to the Election Report were thereafter duly filed both by the Companies and by the Independent, in which they requested, in substance, that the name of the Independent should not be omitted from any ballot thereafter used in any subsequent run-off election.2 In addition, the Independent objected to the Regional Director's failure to rule on the seven challenged ballots, and requested the Board to conduct another election under the same terms and con- ditions as were prescribed in its original Direction of Election. No objections were directed to the fairness and impartiality of the con- duct of the election, nor to the accuracy of the Regional Director's report on the results of the election. On February 23, 1940, the Regional Director, acting pursuant to Article III, Section 9, of said Rules and Regulations, prepared and duly served upon the parties a Report on Objections to Elec- tion Report, in which he found that the objection regarding the seven challenged ballots was without merit because the ballots could have made no difference in the result of the election ; 3 and that none of the objections raised any substantial or material issues with re- spect to the conduct of the ballot. The Board hereby affirms his ruling. The Election Report reveals that neither of the competing labor organizations received a majority of the votes cast, but that a sub- stantial majority of the employees voting desire either Local No. 1702 or the Independent to bargain collectively with the Companies for them. Local No. 1702, the organization which received a plural- ity in the election, has requested a run-off election and both the Independent and the Companies have requested that the Independent be included on a run-off ballot. In the past it has been the Board's practice in such circumstances to direct a run-off election dropping from the ballot the organization receiving the lower number of votes in the initial election and providing a place on the ballot to vote 2 This request is discussed infra. 8 See Matter of Selby Shoe Company, Portsmouth, Ohio and Portsmouth Printing Press- men cC Assistants' Union No 296 of the I P. P cC A. U o; N A, 16 N. L R. B 471. R. K. LFBLOND MACHINE TOOL CO. 467 for or against the labor organization which received the plurality.' For reasons hereinafter stated in the separate opinions of Mr. Smith and Mr. Leiserson, the majority of the Board are of the opinion that the Board's practice in this respect should be changed, and that here- after in run-off elections, under the circumstances here involved, the ballot should contain the names of both organizations but no place in which to vote again for "neither." The organization receiving the higher number of votes in the run-off election will be certified as exclusive bargaining representative. Accordingly the Board will direct a run-off election in which the employees will be given the opportunity to decide whether they desire to be represented by Local No. 1702, Amalgamated Associa- tion of Iron, Steel & Tin Workers of North America or by Inde- pendent Employees Organization for the purposes of collective bargaining.5 The Independent's request for another election under the same terms and conditions as were prescribed in our original Direction of Election is in all other respects denied. SECOND DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National La- bor 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 Na- tional Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation authorized by the Board to determine representatives for the purposes of collective bargaining with R. K. LeBlond Machine Tool Co. and Cincinnati Electrical Tool Co., Cincinnati, Ohio, an election by secret ballot shall be con- ducted 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 Ninth Region, acting in this matter as agent for the National Labor Relations Board and sub- ject to Article III, Section 9, of said Rules and Regulations, among the employees described in the Direction of Election issued January 30, 1940, but excluding those who have since quit or been discharged for cause, to determine whether they desire to be represented by Local No. 1702, Amalgamated Association of Iron, Steel & Tin Workers of North America, or by Independent Employees Organization, for the purposes of collective bargaining. 4 See Matter of Interlake Iron Corpoi ation and Amalgamated Association of Iron, Steel and Tin Workers of North America, Local No. 1657, 4 N L R B. 55, and subsequent cases. See also Matter of Coos Bay Lumber Company and Lumber and Sawmill Workers Union Local No 2573, 16 N L R B 476 5 The New York State Labor Relations Board has adopted a similar form of run-off ballot. See Hotel St George and Hotel & Residence Club Workers Industrial Union of Brooklyn, Local 28, Case No. SE 3353, October 10, 1939, 5 L R. R. 162 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD AIR. EDWIN S. SMITH, concurring : I still adhere to the opinion expressed by the majority in the Coos Bay Leumber case that the holding of a run-off election is unques- tionably within the authority of the Board under Section 9 (c) of the Act.6 I am also still of the opinion, for the reasons there ex- pressed, that the device of holding a run-off election is sound and practical as a matter of policy. In my opinion, however, the Board's past practice with respect to the form of the run-off ballot should be modified.7 The occasion for holding a run-off election arises, as has been pre- viously observed," out of the Board's practice of affording an oppor- tunity on the original ballot to vote for "neither" organization. As a consequence of using such a ballot it may happen that, although an overwhelming majority of the employees vote for one or another of the organizations on the ballot, a small number of votes for "neither" will result in neither organization obtaining a majority. The objec- tive of a run-off election is to permit a further opportunity for the selection of a representative and thus prevent the small number of employees who desire'no representation from thwarting the wishes of the great majority who do desire collective bargaining. It seems to me that a run-off ballot which provides simply for a choice be- tween the rival labor organizations is best adapted to accomplish the objectives of the Act. In the original election 502 of the 555 eligible employees voted for representation by either Local No. 1702 or by the Independent and only 44 voted against such representation. I interpret this vote as meaning that the great majority of voters wish to bargain through some collective representative. In view of this expression of the wishes of the majority in the first election, I would consider that the issue of whether there is to be no collective representative is now determined, and consequently would omit from the run-off ballot opportunity to vote again on that question. It is urged that it is erroneous to assume that those who voted for either Local No. 1702 or the Independent in the original election desire collective bargaining irrespective of the organization selected as representative for such purposes. I do not see the force of such an objection. I am not willing to assume that the rivalry between the membership of two labor organizations is normally so intense that the adherents of each would prefer no collective bargaining to 6 Section 9 (c) provides that, in determining whether representatives have been selected for collective bargaining, the Board "may take a secret ballot of employees, or utilize any other suitable method to ascertain such representatives." 7 Cf. my dissenting opinion in Matter of Interlake Iron Corporation, supra 8 Matter of Coos Bay Lumber Company, supra R. K. Lr;BLOND MACHINE TOOL CO. 469 collective bargaining through the other organization. In any event, in view of the manifest policy of the Act to "encourage the practice and procedure of collective bargaining," I think any doubt should be resolved in favor of the presumption which is more likely to result in the choice of some collective representative. It should be noted, further, that the procedure of dropping one organization from the run-off ballot eliminates the possibility of the employees choosing that organization as their representative and forces upon them the alternative of voting for the other organization or relinquishing all right to collective bargaining. Particularly when the number of votes separating the two organizations on the first ballot is slnall-in this case it amounts to only 30 votes out of 555-such an alternative does not seem to have appealed to labor organizations as a reasonable method of assuring complete freedom in choosing representatives.9 MR. WILLIAM M. LEISERSON, concurring in part and dissenting in part : For reasons explained in my dissenting opinion in the Coos Bay Lumber case 10 I cannot agree with the ruling of the majority direct- ing a run-off election. I am of the opinion that the Board is not authorized by the Act to order a run-off election for the purpose of creating an artificial majority when an election results in no majority for any representative. The fact that the two members of the Board who believe they have authority to order run-off elec- tions cannot themselves agree on which one of .the many kinds of run-off ballots to use seems to me clear evidence that the run-off is a controversial device which the Board should not assume the authority to order. If Congress had intended that run-off elections should be held, it would have prescribed the particular form of run-off ballot. Since the prevailing opinion does order a run-off, however, I favor placing on the ballot only the names of the two organizations which have been designated by employees to represent them for collective bargaining. I would drop the "neither" from the ballot. Those who desire no collective bargaining whatever had their opportunity to I while it is not necessary to determine the issue in this case , I would drop the "neither ' from the run-off ballot in any case where the "neither " votes in the first election constituted less than a majority, whether or not they constituted a plurality Thus , in the hypothetical case cited in the opinion of Chairman Dladden , even though there were 49 votes for neither , the 45 votes for A union and the d votes for B union, totalling 51, show in my view a majority in favor of some form of collective bargaining and settles the issue of whether the employees are against any collective representative. The narrowness of the margin by which the issue would be determined in such a case seems to me irrelevant. Cf. my dissenting opinion in Hatter of Interlake Iron Corpoi ation, supra iO Matter of Coos Bay Lumber Co ., supra 253038-4]-vol 22 81 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD express their opinion in the election, and it was only a small minority, less than,8 per cent, who voted against any representation for col- lective bargaining. I do not think that we have the authority to order the kind of run-off ballot that we happen to favor, and I express an opinion on the matter only because the majority of the Board has directed that a run-off election be held. CHAIRMAN MADDEN, concurring in part and dissenting in part: I concur with Mr. Smith in the view that the holding of a run-off election is within the power of the Board and is sound as a matter of policy. Since these issues were fully discussed in the Coos Bay Lurn- ter case, I do not consider it necessary to deal with them further here. I do not agree, however, with the proposal to eliminate all place on the ballot in which to vote against representation by any labor or- ganizati on. An election conducted by the Board under Section 9 (c) is in some respects quite different from a political election. In the latter it is essential that some representative be designated and the ballot is framed accordingly. The National Labor Relations Act, however, does not compel employees to bargain collectively if a majority do not wish to do so. Consequently the Board provides a place upon the ballot in the original election where the employees may vote "against" the labor organization involved, if only one labor organi- zation appears upon the ballot, or for "neither" or "none" of the labor organizations involved, where two or more appear on the ballot. In the absence of a ballot so framed employees who wished to have no collective representative would have no means of expressing their choice and thus a collective representative might be forced upon the employees despite the wishes of a majority." It seems to me fully as important to provide a place on the ballot in which to vote against all collective representation in a run-off election as in the original election. The majority, however, propose to deny any such opportunity. The result may well be, in many cases, that a particular labor organization will be forced upon the employees although a majority would in fact prefer no collective representation but have had no means of expressing such a choice. This does not seem to me to afford that freedom of choice which is contemplated by the Act. Mr. Smith and Mr. Leiserson argue that the 266 votes cast for Local No. 1702, and the 236 votes cast for the Independent may both be taken as votes in favor of collective bargaining regardless of which 4 "It is tine that the employees desiring no collective representative could refrain from voting However , both the Board and the courts have held that only a majority of those Noting, rather than a majority of those eligible to vote, is necessary to select a iepre- sentative Consequently , refraining from voting would , not be effectual to indicate a desire for no collective iepiesentative R. K. LEBLOND MACHINE TOOL CO. 471 organization is representative for such purposes. I think that "as- sumption unwarranted, particularly in view of the prevalent inter- union rivalry which has frequently engendered a more virile parti- sanship for particular labor organizations than for the general ob- jectives of collective bargaining. It may well be that the persons who voted for either of the labor organizations here involved would prefer to join the 44 persons who voted for neither organization, rather than be represented by an organization not of their primary choice. Yet, by the form of ballot adopted, the opportunity to reg- ister that preference is denied them and the selection of one of the rival organizations as majority representative is assured. The majority, position does not mean that the interest receiving the smallest number of votes in the original election will be dropped from the rim-off. It would equally require that the interest receiv- ing the largest number of votes, or the second largest number, be dropped, if that was the "neither" interest. Thus the result of the first election in a unit of 100 eligible voters might be 49 votes for neither, 45 for A union, and 6 for B union. The theory of the ma- jority would compel it to drop the "neither" on the run-off ballot and permit a vote only for A union or B union. The effect of this is to disfranchise all those employees whose point of view received the highest number of votes in the first election. For the foregoing reasons I think the Board should adhere to its former practice of directing a run-off election which permits the eligible employees an opportunity to vote for or against the labor organization which received a plurality of the votes in the original election.12 iz Where more than two labor organizations ale involved in the first election I would, of course, follow the practice enunciated by the Board in Matter of Aluminum Company of America and Aluminum Employees Association, 12 N L R B 237