Allis-Chalmers Manufacturing Co.

National Labor Relations Board - Board Decisions

Oct 3, 1969

179 N.L.R.B. 1 (N.L.R.B. 1969)

ALLIS- CHALMERS MFG. CO.
Allis-Chalmers Manufacturing Company' and
International Union of Electrical , Radio &
Machine Workers, AFL-CIO, CLC, Petitioner:
Case 1-RC-10,338
October 3, 1969
DECISION ON APPEAL AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
JENKINS AND ZAGORIA
On November 22, 1968, International Union of
Electrical, Radio & Machine Workers, AFL-CIO,
CLC, filed a petition seeking to represent certain
employees at the Employer's Boston plant. On
December 18, 1968, the Regional Director for
Region 1 dismissed the petition finding that it was
barred by the current collective-bargaining
agreement between the parties. On December 30,
1968, Petitioner filed an appeal from the Regional
Director's dismissal with the National Labor
Relations Board contending that the contract was
not a bar to the petition.
The Board concluded that the appeal raised
substantial and material issues which could best be
resolved on the basis of record testimony and,
accordingly, on February 19, 1969, reversed the
Regional Director' s dismissal of the petition,
reinstated the petition, and directed that a hearing
be held on the issue raised by the appeal.
Thereafter, the Board issued an Order on March 26,
1969, granting the Employer' s motion that the
hearing be limited to the single issue of whether a
valid bar exists to further proceedings in the case. A
hearing was held on April 15, 1969. On April 24,
1969, the case was transferred to the Board in
Washington, D.C. Thereafter the parties filed briefs
in support of their respective positions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
Board has delegated its powers in connection with
this case to a three-member panel.
Except as indicated hereinafter, the Hearing
Officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed. The
Board has considered the entire record in the case
including the briefs, and makes the following
findings:2
The Petitioner (also called the International) filed
a petition seeking to represent a unit of clerical and
technical employees, including draftsmen,
timekeepers, electrical testers and inspectors at the
Employer's Boston plant. The Regional Director
dismissed the petition on the ground that in a
current collective-bargaining contract between the
Employer and the Petitioner and its Local 279, the
Petitioner agreed not to represent the employees
'The names of the Employer and Petitioner appear as amended at the
hearing.
'As the record, including the briefs of the parties, adequately presents
the issues and the positions of the parties, Petitioner's request for oral
argument is hereby denied.
petitioned for herein during the term of the
agreement, citing Briggs Indiana Corporation3 and
Cessna Aircraft Company." We agree with the
Regional Director's disposition of the petition.
On April 19, 1968, the Employer and both the
International and its Local 279, hereinafter called
the Local, executed a 3-year collective-bargaining
contract covering a unit of some 400 production and
maintenance employees.
The first paragraph of the contract provides that
the Petitioner shall be referred to as the
"International" and Local 279 as the "Union."
Paragraph 3 defines the appropriate unit and
expressly excludes, inter alia, "draftsmen, technical
engineers, powerhouse engineers. . . timestudy men,
timekeepers, clerical employees, electrical testers
" Immediately thereafter, the following provision
appears:
4. Section C The Union shall not , during the term
of this agreement , solicit or accept into
membership any person in the employ of the
Company excluded from the coverage of the
agreement under the provisions of paragraph 3
above.
The Employer, in contending that the 1968-1971
collective-bargaining agreement bars the petition,
relies on the rule announced in Briggs Indiana. In
that case , the Board held that where a union has
promised not to seek to represent certain employees
for the term of an agreement , a petition by that
union seeking to represent such employees during
the contract term will not be entertained. Petitioner
argues, however, that the express language of the
agreement makes it clear that paragraph 4 applies
solely to the Local . Since in paragraph 1, the Local
was identified as the "Union" and only the word
"Union" is used in paragraph 4, Petitioner submits
that it is not bound by that provision.
We find no merit in Petitioner ' s position. It is
unreasonable to assume that the word "Union" was
so literally used . The strict reading urged by
Petitioner would lead to the untenable conclusion
that while the Employer had bargained and executed
a contract with both the International and the
Local, it was concerned with and wished to forestall
future solicitation among unrepresented employees
by the Local alone.
Further , an analysis of other provisions in the
contract establishes that the term "Union" was used
occasionally to refer to both the International and
the Local. For example , article II , section C, of the
contract reads : "The Company declares that it will
pursue the firm policy of not aiding . any
employee . . for the purpose of undermining the
Union ." Narrowly interpreted , this paragraph
obligates the Employer not to undermine the Local
but leaves it quite free to undermine the
International . Similarly , another paragraph relating
'63 NLRB 1270.
4123 NLRB 855,857.
179 NLRB No. 1
2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to checkoff of dues, requires that the authorization
shall be irrevocable for a period of 1 year from the
date of delivery of the authorization "or until the
termination of the collective bargaining agreement
between the Company and the Union ." Clearly,
"Union" again refers to both the International and
the Local since both are signatories to the
agreement.
Petitioner also alleges that it is merely a nominal
party to the agreement ; that it is bound as a joint
promisor with the Local in only two provisions in
the contract where it is individually identified.' In
the past, however , the Board has held petitioning
unions bound by contractual promises not to
represent certain employees even where they were
not themselves parties to the agreement .6 A fortiori,
where, as in the present case , the petitioning union
is a signatory to the contract , we find that the
limitations of paragraph 4 apply to it.
Petitioner further contends that paragraph 4 was
discussed during the negotiations prior to the
execution of the contract and was construed by the
parties as not applying to the International. In
particular , the International maintains that at the
final bargaining session , it waived its demand that
paragraph 4 be deleted only after the Employer gave
assurances that the provision extended solely to the
Local . The Employer on the contrary , insists that it
drew no distinctions between the obligations of the
Local and those of the International.
To corroborate its version of the parties'
understanding regarding the reach of paragraph 4
the Employer offered in evidence written minutes of
the bargaining sessions , which were rejected by the
Hearing Officer. We find that this rejection
constituted error.'
The minutes were prepared by John Barry, a
supervisor , who served as recorder for the Employer
and attended each of the meetings. Barry stated that
he took long-hand notes at the meetings and then
transcribed them into completed minutes as soon as
possible thereafter . He testified that although he did
not record what was said verbatim , he did try to
cover the "high points in the words of the
individual" who was speaking without consciously
censoring their statements.
Under the rule of past memory recorded, such
writings may be received as evidence of the facts
recited therein provided that : ( 1) the witness had
first-hand knowledge of the facts ; (2) the writings
'In article 11 , section H , paragraph 20 dealing with a no-strike clause,
the International and the Local are both mentioned , and in article 11,
section G, paragraph 15, both Unions promise not to intimidate or coerce
employees.
'In Briggs Indiana , supra , the rule was first applied to a newly chartered
local. In Cessna Aircraft, supra at 857, the Board stated that where an
International is party to a contract , the rule will be applied to any locals of
the International as well as to the International itself, or where a local is a
party to the contract , the rule applies to any other local of the same
International.
'Although the Hearing Officer refused to admit the proffered exhibit into
evidence , he placed it in the Rejected Exhibit File, which has been
transmitted to the Board.
were made or recognized by the witness as correct
at or near the time of the events; (3) the writings
were recorded at a time when the events were fairly
fresh in the memory of the witness; and (4) the
witness can attest that he recorded the facts as
accurately as possible.$
In view of Barry's uncontradicted statements as to
the methods he used in taking the minutes, we find
that the guarantees attesting to their reliability have
been met and hereby accept them into evidence as
Employer's Exhibit 12.9
We particularly take notice of excerpts from these
minutes relevant to the discussion of paragraph 4 at
the final bargaining session which are set forth
verbatim in the footnote below.10 In our opinion,
these excerpts establish that the International was
concerned only with the legality of paragraph 4, and
apparently assumed the provision extended it. We
conclude, therefore, contrary to Petitioner's
contention, that the parties understood that
paragraph 4 applied to the International.
'McCormick on Evidence, (1954 ed.) Sec. 277-278.
'See N.L.R.B. v. Tex-Tan, Inc., 318 F.2d 191 (C.A. 5, 1963) where the
court held admissible detailed summaries of bargaining sessions prepared
by the employer's chief negotiator within a day or two after the completion
of each session from notes kept in his own handwriting.
"Mr. Blackman (International representative ] stated, there was subject
matter that the Union had expressed an opinion on and the company
had given no answer , Par 4-Sec C, what does this mean to the company?
Mr. Oliver (Employer 's representative ] replied, it means the Union will
not accept employees into the Union . He added that the paragraph spells
out what it means. Mr. Blackman asked , if this was not a violation of
the labor relations law. Mr. Oliver replied , not to his knowledge.
Blackman stated that it does not mean the Union cannot organize the
unorganized , those spelled out by the act are one thing, also something
else. Mr . Oliver stated there was no problem . Mr. Blackman indicated
the paragraph language had been amended before the labor board. He
added , if the company meant, clericals, draftsmen , testers or technicians
then the paragraph was illegal . Mr. Desmond [Member of Employer's
Negotiating Committee] asked, when the language was amended.
Blackman replied in 1947. Desmond commented the company had
checked with their legal people and there was no problem. Carter
[International representative ] interjected that the Union checked with
their legal people and the company was in violation.
Mr. Blackman stated , it claimed the Union the right to organize
people into an organized group and a violation of the law, cannot be
written into a contract . He added there was no fixed answer to law
changes. He cited that a repetition of the article would allow plant
raiding by other Unions . He continued he didn ' t know whether the
International would sign with this in the contract but he would check the
legality of the paragraph . He commented , if the company was speaking
of people in exclusion , there was no problem and maybe the language
needed clarification . Desmond stated he had discussions with the former
Union president , he checked and agreed it was o.k. Blackman replied it
should be made clear who is excluded , but if it meant the union cannot
accept people who are unorganized and eligible then its wrong. Carter
interjected he recalled a drive among the clerks and now seeks it clearly.
He commented the Teamsters could organize these people, but the
I.U.E. couldn't.
Mr. Blackman asked if it was the companys intent not to accept the
Unions proposals . He added they would give a letter of intent that it
refers to Par . 3. He stated , nothing can be written into the contract that
abrogates the law . He continued that Paragraph 4 applied to Paragraph
3.
Mr. Desmond said , the legality would be checked . Blackman replied,
as he read it, it applied to par. 3 Clericals , he added if presented a card
demanding recognition , and the company says go to the board , then the
board will say it.
ALLIS-CHALMERS MFG. CO.
Petitioner urges us to re-examine the Briggs
Indiana rule on two grounds. First, it is argued that
the rule was initially applied in a case involving
plant guards, employees whose inclusion in bargaining
units was "the subject of doubt and protracted
litigation."" As the 1947 Taft-Hartley amendments
to the Act resolved the status of such employees,''
Petitioner submits that the rationale underlying
Briggs Indiana no longer applies.
We find no merit in this argument,for the Board
has invoked the rule in a number of cases
concerning categories of workers other than plant
guards."
Petitioner also contends that the Briggs Indiana
rule restricts employees in their right to bargain
collectively through representatives of their own
choosing."
We do not view the rule as an undue
encroachment on rights guaranteed by Section 7 of
the Act. Employees excluded by such a provision are
not disenfranchised; rather, their options as to which
unions are available to them are merely diminished
by one. As the Board recognized in Briggs Indiana,
"the exercise of rights of given employees to choose
any representative they desire is never literally
unrestricted...."" We do not interpret Section 7 to
mean, then, that employees have an unqualified
right to membership in a particular labor
organization. Nor does the Act declare unlawful a
3
union's decision not to organize and represent
certain employees.
Moreover, the Board in Briggs Indiana stated that
it was reluctant to "expend its energies . . . to
confirm a result which the Union agreed it would
refrain temporarily, from seeking to achieve."' °
Similarly, we too are unwilling to lend government
sanction to undo the terms of a bargain which the
rties themselves have struck. Such a -result would
be at variance with Board precedent" and contrary
to the statutory policy directed toward stabilizing
the collective-bargaining relationship.
Accordingly, we shall dismiss the petition.
ORDER
It is hereby ordered that the petition filed herein
be, and it hereby is, dismissed.
" Briggs Indiana. supra at 1273.
"Section 9(b)(3) of the Act restricts plant guards to bargaining units
which do not include employees other than guards.
"E.g., Essex County News Co., 76 NLRB 1341; Huron Portland
Cement Co., 115 NLRB 879; Cessna Aircraft, supra.
"See Matter of Packard Motor Car Company, 47 NLRB 932.
"Supra at 1272.
'•Id. at 1273.
"See Budd Company Automotive Division , 154 NLRB 421; Fullview
Industries , Inc., 149 NLRB 427, 429; Montgomery Ward & Co. Inc., 137
NLRB 346; Huron Portland Cement Co.. 115 NLRB 879.