Douglas and Lomason Co.

In the Matter of DOUGLAS AND LOMASON COMPANY and INTERNATIONAL UNION, UNITED AIITomoBILE WORKERS OF AMERICA, AFFILIATED WITH THE C. I. O. Case No. R-26'73.-Decided August 9, 1941 Jurisdiction : metal stamping manufacturing industry. Investigation and Certification of Representatives In furtherance of the purposes of the Act to attain stabilized labor relations in industry through collective bargaining agreements held a closed-shop con- tract of reasonable duration constitutes a bar to an investigation and certifi- cation of representatives despite a change of affiliation by a substantial num- ber of members of the contracting union to the petitioning labor organization. Practice and Procedure : petition dismissed where no question concerning rep- resentation exists. Mr. Colonel C. Sawyer, for the Board. Mr. Frederick W. Bauer, of Detroit, Mich., for the Company. MD. Maurice Sugar, by Mr. Ernest Goodman and Mr. N. L. Smokler, of Detroit, Mich., for the UAW-CIO. Mr. Joseph Padway, by Mr. Henry Kaiser, of Washington, D. C., for the UAW-AFL. Mr. Frederic B. Parkes, end, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE On June 9 and 18, 1941, respectively, International 'Union, United Automobile Workers of America, affiliated with the C. I. 0., herein called the UAW-CIO, filed with the Regional Director for the Sev- enth Region (Detroit, Michigan) a petition and an amended petition alleging that a question affecting commerce had arisen concerning the representation of employees of Douglas and Lomason Company, De- troit, Michigan, herein called the Company, and requesting an investi- gation and certification of representatives pursuant to Section 9 (e) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On June 19, 1941, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act, and 34 N. L. R. B., No. 8. 69 451269-42-vol. 34-6 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 2, as amended, ordered an investigation and au- thorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On June 20, 1941, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company, the UAW-CIO, and International Union, United Automobile Workers of America, affiliated with the A. F. L., herein called the UAW-AFL, a labor or- ganization claiming to represent employees directly affected by the investigation. Pursuant to notice, a hearing was held on June 25, 26, and 27, 1941, at Detroit, Michigan, before Mortimer Riemer, the Trial Examiner duly designated by the Chief Trial Examiner. The Board, the Company, the UAW-CIO, and the UAW-AFL were represented by counsel- or official representatives and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of the hearing the Trial Examiner made various rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On July 16 and 17, 1941, respectively, the UAW-AFL and the UAW-CIO filed briefs which the Board has considered. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Douglas and Lomason Company, a Michigan corporation, is engaged in the manufacture of metal stampings for the automobile industry at its plant in Detroit, Michigan. During 1940, the Company pur- chased raw materials valued at approximately $1,000,000, of which approximately 80 per cent were shipped to it from points outside the State of Michigan. During the same period, the Company sold prod- ucts valued at approximately $2,250,000, of which approximately 34 per cent were sold and shipped to points outside the State of Michigan. The Company employs approximately 500 employees. II. THE ORGANIZATIONS INVOLVED Local No. 858, International Union, United Automobile Workers of America, is a labor organization affiliated with the Congress of Indus- trial Organizations, admitting employees of the Company to member- ship. Local No. 669, International Union, United Automobile Workers of America, is a labor organization affiliated with the American Fed- eration of Labor, admitting employees of the Company to membership. DOUGLAS & LOMASON COMPANY 71 III. THE ALLEGED QUESTION CONCERNING REPRESENTATION On June 7, 1941, Local No. 858, UAW-CIO, requested the Company to recognize it as the exclusive bargaining representative of the Com-, pany's employees. The Company refused to grant such recognition for the reason that the Company was in contractual relationship with the UAW-AFL. On June 9, 1941, the UAW-CIO called a strike. On December 5, 1940, the Company and Local No. 669, UAW-AFL, entered into a closed-shop contract, recognizing Local No. 669, UAW- AFL, as the exclusive bargaining representative of all the Company's employees within the unit herein stipulated by the parties to be appro- priate, except the toolroom and die-room employees.' The latter em- ployees were brought under the contract by two supplemental agree- ments which were made part of the original contract. Such agreements were executed on March 12 and April 8, 1941, respectively. The con- tract provided that it should be in effect until April 1, 1942, and that after that date it might be amended or canceled by either of the parties upon 30 days' written notice. Early in 1941, considerable sentiment in favor of the UAW-CIO arose among the Company's employees. On April 2 and May 25, 1941, representatives of the Company's employees requested the UAW-CIO to grant them a charter. The UAW-CIO refused to grant a charter until more definite proof should be shown that an overwhelming ma- jority of the Company's employees were in favor of shifting to the UAW-CIO. On June 6,1941, the UAW-CIO chartered Local No. 858. The UAW-CIO asserts that it did not commence any organizational activities at the Company's plant until after the strike was called on June 9, 1941. On May 23, 1941, the president of Local No. 669, UAW-AFL, sub- mitted his resignation to be effective at once. On the same day a special meeting of the bargaining and shop committees, the shop stewards, and some of the executive officers, hereinafter called the Executive Committee, was called.' At that meeting, the Executive Committee accepted his resignation.' On May 29, 1941, at another meeting, the 1 At the hearing the Company , the UAW-CIO, and the UAW-AFL stipulated that all employees of the Company in the press , molding No. 1, molding No. 2, board , paint, ship- ping, stock, maintenance , tool and die room , inspection , and fire departments, excluding office and clerical help, superintendents, assistant superintendents , foremen , assistant foremen , and plant protection employees , constitute a unit appropriate for the purposes of collective bargaining. 2 The UAW-CIO contends that this committee was in fact the Executive Board and that its subsequent action was within the scope of its authority The UAW-AFL claims that the committee was not the Executive Board, and that its action was based upon usurped power. 'The UAW-AFL constitution provides , "The Executive Board of each local union shall consist of all the elected union officers and such members at large as the local may deem necessary." 3 There is conflicting testimony in the record on this point A witness for the UAW-AFL testified that the Executive Committee deferred the consideration of the president 's resig- nation until the next regular meeting of Local No . 669, UAW-AFL 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Executive Committee elected a president pro-tem.4 On June 5, 1941, the Executive Committee authorized the president pro-tem "to file for an N. L. R. B. election." On June 7, 1941) the president pro-tem in the name of Local No. 669, UAW-AFL, filed a petition for an investigation and determination of representatives. The petition was subsequently dismissed. On June 7, 1941, at a general meeting of Local No. 669, UAW-AFL, attended by 250 to 300 employees of the Company, the membership of Local No. 669, UAW-AFL, by unanimous vote 5 assigned all its interest in the above contract and all its assets to Local No. 858, UAW-CIO." At the same meeting a resolution was unanimously adopted to disband Local No. 669, UAW-AFL, and to return its charter to the UAW-AFL. Immediately upon the adjournment of'that meeting, the employees in attendance convened at a meeting of Local No. 858, UAW-CIO, and voted to carry over the same officers of Local No. 669, UAW-AFL, as officers of Local No. 858, UAW-CIO. At this meeting Local No. 858, UAW-CIO, formally accepted the assignment of the contract. On June 9, 1941, a meeting of Local No. 669, UAW-AFL, was called and was attended by approximately 150 employees of the- Company. The resignation which the president of Local No. 669, UAW-AFL, had tendered on May 23, 1941, was formally rejected. Subsequent meetings of Local No. 669, UAW-AFL, were held on June 12, 19, and 24, 1941, and were attended by 150 to 200 employees of the Company.' The UAW-CIO contends that Local No. 669, UAW-AFL, has been disbanded, that more than two-thirds of its membership desire to change their affiliation to Local No. 858, UAW-CIO," that the 4 The UAW-AFL contends that the election of a temporary president was beyond the authority of the Executive Committee or of the Executive Board, because the constitution of the UAW-AFL provides that all questions of a parliamentary nature shall be decided by Robert's Rules of Order. The latter provides that under any constitution no subordinate body may set aside or modify any action of its superior. The election of officers is specifically granted by the constitution of the UAW-AFL to the local union as a whole 5 Testimony in the record is conflicting on the question of the unanimity of the vote cast for this and other resolutions adopted at the meeting . Witnesses for the UAW-CIO testified that the resolutions were unanimously adopted ; witnesses for the UAW-AFL testified that there were dissenting votes. 6 The meeting was called to order by the president pro-tem, elected by the Executive Committee. The UAW-AFL contends that he had no authority to conduct the meeting, because both Robert's Rules of Order and the constitution of the UAW-AFL provide that either the president or the vice president must conduct the meeting . The UAW-AFL asserts that the regular order of business was set aside at the outset of the meeting by the president pro-tem without submitting such action to vote, thus constituting still another infraction of Robert's Rules of Order. Early in the meeting, the president pro- tem was elected president by acclamation 7 The testimony in the record is conflicting on, the number present at these meetings A witness for the UAW-CIO testified that there were only 35 to 75 persons present at the various meetings. fi The UAW-CIO submitted to the Regional Director 214 authorization cards, of which 15 were undated , 2 were dated in October 1940, and 197 were dated in June 1941. The UAW-CIO also submitted undated petitions ratifying the shift to the UAW-CIO, bearing 13 names. The Regional Director found all the signatures , except 4, to be genuine and 227 DOUGLAS & LOMASON COMPANY 73 1940 contract between the Company and Local No. 669, UAW-AFL, has been assigned to Local No. 858, UAW-CIO, and accordingly, that a question concerning representation exists. It further con- tends that since Local No. 669, UAW-AFL, filed a petition for an investigation and certification of representatives on June 7, 1941, it cannot claim the 1940 contract to be a bar to the petition filed by the UAW-CIO. The UAW-AFL, on the other hand, claims that no question con- cerning representation exists, because of the existence of its 1940 contract with the Company. It further contends that the action taken by the Executive Committee and by the general meeting of Local No. 669, UAW-AFL, on June 7, 1941, was in violation of the UAW-AFL constitution governing Local No. 669 9 and hence that Local No. 669, UAW-AFL, is still in existence and has not changed its affiliation to the UAW-CIO, and that the attempted assignment of the 1940 contract was invalid. It further claims that the peti- tion filed on June 7, 1941, in the name of the UAW-AFL, was not made in good faith, having been filed without the authorization of the membership of Local No. 669, UAW-AFL. The constitution of the UAW-AFL provides, "no Local Union, Ladies Auxiliary, District Council, or subordinate body shall dis- band as long as fifteen members or two Local Unions desire to retain the Charter." From a statement of the Trial Examiner introduced into evidence at the hearing, it is apparent that there are more than 15 members who desire to retain the charter of Local No. 669, UAW-AFL.10 Furthermore, the four subsequent meetings of Local No. 669, UAW-AFL, are a positive indication of the fact that it is a functioning organization. Under the circumstances, without considering the alleged irregularities of the action taken by fie Executive Committee and by the general meeting of Local No. 669, UAW-AFL, on June 7,,1941, we are of the opinion that the adoption of the resolutions to change its affiliation to the UAW-CIO, to assign the 1940 contract to the UAW-CIO, and to disband Local signatures to be the names of persons appearing on the Company's pay roll of June 9, 1941. At the hearing, the UAW-CIO submitted 10 additional cards to the Trial Examiner, who found 2 cards, undated , to bear genuine signatures of persons whose names were on the pay roll of June 9, 1941 , and were not included in the Regional Director's statement There are approximately 333 employees within the alleged appropriate unit. 9 See footnotes 2, 4, and 6, supra. The international president of the UAW-AFL and an international representative of the UAW-AFL, who was a member of Local No. 669, were both denied admission to the meeting of June 7, 1941, in spite of the fact that the constitution of the UAW-AFL authorized them to attend any meeting at any time. 10 The UAW-AFL submitted to the Trial Examiner several petitions bearing the signa- tures of 99 persons, who therein reaffirmed their desire to be represented by Local No. 669, UAW-AFL, for the purposes of collective bargaining. The Trial Examiner found that 97 of the signatures were genuine and 94 were the signatures of persons whose names were on the Company's pay roll of June 9, 1941 . He further found that of the total number of genuine signatures, 34 also appeared on UAW-CIO authorization cards or petitions. 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD No. 669, UAW-AFL, was not sufficient to deprive Local N6. 669, UAW-AFL, of its existence or of its right to enforce the contract it entered into with the Company on December 5, 1940, the term of which is for a reasonable duration.h1 Nor do we find any merit in the UAW-CIO's contention that the UAW-AFL cannot claim its 1940 contract to be a bar to the instant proceeding since it filed a petition requesting an investigation and certification of representatives on June 7, 1941. The record clearly indicates that the petition was filed not in behalf of Local No. 669, UAW-AFL, but rather for its members who were seeking to change its affiliation to the UAW-CIO12 Although. there has been a considerable shift in membership from the UAW-AFL to the UAW-CIO, we are of the opinion that the Board in furtherance of the purposes of the Act to attain stabilized labor relations in industry through collective bargaining agreements should not proceed to an investigation and certification of repre- sentatives during the term of the contract between the Company and Local No. 669, UAW-AFL. In view of the circumstances, therefore, we find that the contract between the Company and Local No. 669, UAW-AFL, executed on December 5, 1940, constitutes a bar to an investigation and certification of representatives at the present' time. We find that no question has arisen concerning the representation of employees of the Company. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSION OF LAW No question concerning the representation of employees of Douglas and Lomason Company, Detroit, Michigan, exists within the meaning of Section 9 (c) of the Act. ORDER Upon the basis of the foregoing findings of fact and conclusion of law, the National Labor Relations Board hereby orders that the peti- 11 Cf. Matter of M. and M. Wood Working Company and Plywood and Veneer Worker. Union, Local No. 102, affiliated with International Woodworkers of America , 6 N. L. R. B. 372, reversed in M. and M. Wood Working Co . at al. v. National Labor Relations Board (C. C. A. 9) 101 F. ( 2d) 938; Matter of J. E. Pearce Contracting and Stevedoring Com- pany, Inc. and International Longshoremen and Warehousemen's Union, Local 2-5, 20 N L. R. B. 1061 12 The UAW-AFL petition was filed by the president pro-tem of Local No . 669 on June 7, 1941, the day he was elected president of Local No . 858, UAW-CIO. Moreover, he was one of the chief advocates for a change in affiliation to the UAW-CIO. Under the circum- stances presented in the instant case, it would hardly be conceivable that a labor organ- ization, having a closed -shop contract with the Company , would desire an- investigation and certification of representatives merely because a rival labor organization claimed to represent some of the Company 's employees. DOUGLAS & LOMASON COMPANY 75 tion for investigation and certification of representatives, filed by International Union, United Automobile Workers of America, affili- ated with the Congress of Industrial Organizations, be, and it hereby is, dismissed. MR. EDWIN S. SMITH, dissenting : I dissent from the decision of the majority that the contract be- tween the Company and Local No. 669, UAW-AFL, executed on December 5, 1940, constitutes"a bar to a present investigation and cer- tification of representatives. I agree with the majority that stability of labor relations is an im- portant objective which this Board should seek to promote through the- proper exercise of an informed administrative discretion. Thus, where employees shift their membership from Union A to Union B during the middle of the term of a valid exclusive bargaining con- tract between the employer and Union A, which is in its first year and is for a -reasonable: term, I would not direct an election on the petition of Union B. Such action would not defeat self-organization, since at the close of the term of the contract, or after 1 year, which- ever occurs sooner, an election may be had and the desires of the em- ployees with respect to representation may be effectuated. However, when the contract asserted as a bar provides for a closed shop and more than a^ majority of the employees have changed their affiliation to a rival labor organization, even though during the original term of the contract, as in the instant case, I am firmly convinced that the policy of the Act to promote stability of labor relations through collective bargaining agreements, if applicable in this situation,13 must yield to the fundamental doctrine of majority rule, enunciated in Sec- tion 9 (a) of the Act. Nevertheless, I would grant employees the opportunity to make such selection only where there was a competent prima facie showing that a majority had shifted from the contracting 13 The policy of promoting stable labor relations through collective bargaining agreements is not in fact applicable in this situation . In my view all the substantive provisions of a labor agreement, including those relating to wages, hours, other working conditions,' and the settlement of employment problems which may arise in the future, continue in full force and effect after a new representative is selected in the election I would direct, and only those provisions become invalid which recognize the repudiated union as representing the employees To suspend the latter provision under such circumstances not only does not disrupt the agreement in any realistic sense or render the results of collective bargaining unstable or uncertain , but is, on the contrary , the only way in which the ultimate congres- sional goal of industrial peace may be achieved ; for it prevents employers from destroying the right of the majority of the employees to organize and select collective bargaining representatives of their own choosing, the denial of which right the Congress found to be a fruitful source of industrial unrest. See my dissents in Matter of Ansley Radio Cor- poration and Local 1221 United Electrical & Radio Workers of America, C. 1. 0., 18 N. L R. B. 1028 ; Matter of - Taylor Milling Corporation and Avery Smith and James L. Wykes, 26 N L R. B 424 ; see also my dissent to the Proposed Findings of Fact , Pob iosed Conclusions of Law, and Proposed Order in Mattei of Rutland Court Owners , Inc and United Building Service Employees Local Union, Local No 695, and Building Service Employees International Union, Local 82 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union to a rival organization. Given such a prima facie majority, I consider it repugnant to the purposes of the Act not to permit the formalizing of such majority by a Board certification following an election. Otherwise, long before the end of the, contract period, when a majority of the Board would permit the question concerning repre- sentation to be opened, the employer, by virtue of the closed-shop con- tract, would be able to destroy the majority by dismissal of those employees who have shifted their affiliation. Such an undermining of the whole principle of self-organization opens the way to a seem- ingly limitless perpetuation as representative of the union which happens to be the employees' initial choice. Self-organization of em- ployees is the primary source from which -flows all the advantages envisioned by Congress in the enactment of the statute. To risk'the frustration of the possibility of free self-organization in the future, as the majority opinion does, accords to contractual stability a posi- tion of such eminence as to defeat the purpose of the Act. With this I cannot agree. Therefore, since the contract between the Company and Local No. 669, UAW-AFL, requires membership in that local as a condition of employment, and since approximately two-thirds of the Company's employees covered by the contract have changed their affiliation to Local No. 858, UAW-CIO,14 I am of the opinion that the contract is^ no bar to a present determination of representatives 1 For the foregoing reasons, I would find that a question has arisen concerning the representation of 'employees of the Company and would order that an election by secret ballot be conducted among the employees in the stipulated unit 16 to determine whether they desire to be represented by Local No. 858, UAW-CIO, or by Local No. 669, UAW-AFL, for the purposes of collective bargaining, or by neither. 14 See footnote 8, supra. 15 In view of the fact that in my opinion the contract between the Company and Local No 669, UAW-AFL, Is no bar to the instant proceeding , I find It unnecessary to consider whether the record discloses that Local No. 669, UAW-AFL has disbanded and trans- ferred its contract and assets to Local No 858.'UAW-CIO. 10 See footnote 1, supra.