American Seating Co.

National Labor Relations Board - Board Decisions

Jul 19, 1949

85 N.L.R.B. 269 (N.L.R.B. 1949)

In the Matter Of AMERICAN SEATING COMPANY, EMPLOYER and UPHOL-
STERERS' INTERNATIONAL UNION OF NORTH AMERICA, A. F. L.,
PETITIONER
In the Matter of AMERICAN SEATING COMPANY, EMPLOYER and LODGE
No. 1907, UNITED TOOL & DIE MAKERS, INTERNATIONAL ASSOCIATION
OF MACHINISTS, PETITIONER
In the Matter of AMERICAN SEATING COMPANY, EMPLOYER and INTER-
NATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT & AGRICIILTURAL
IMPLEMENT WORKERS OF AMERICA (UAW-CIO), PETITIONER
Cases Nos. 7-RC-5.0, 7 RC,521, and 7-RC-525, respectively.-
Decided July 19, 1949
DECISION
AND
DIRECTION OF ELECTIONS
Upon separate petitions duly filed, a consolidated hearing was held
in Grand Rapids, Michigan, on May 4 and 9, 1949, before Harold L.
Hudson, 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 National Labor Relations Act.
2. The labor organizations named below claim to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of certain employees of the Employer within the meaning of Sec-
tion 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The appropriate unit; the determination of representatives:
Upholsterers' International Union of North America, A. F. L.,
herein called the Upholsterers, and International Union, United Auto-
mobile, Aircraft & Agricultural Implement Workers of America
(UAW-CIO), herein called the UAW-CIO, each seeks certification
as the exclusive bargaining representative of all employees of the Em-
ployer regularly paid from the Grand Rapids pay roll on an hourly
85 N. L.. R. B., No. 49.
269
270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or incentive basis, excluding executives, foremen, assistant foremen,
office and clerical employees, timekeepers, rate setters, plant protection
employees, and all supervisors and guards as defined in the Act. Lodge
No. 1907, United Tool & Die Makers, International Association of
Machinists, herein called the IAM, seeks a unit limited to all employees
in the toolroom (Department 29) ; the machinists, tool and die maker,
metal model makers in the research department (Department 91) ; the
machinists in the maintenance department (Department 11) ; and the
machinist in the production machine shop (Department 21) ; but ex-
cluding the houeskeeper and storekeepers in the tool room, "wood
machinists," supervisors as defined in the Act, and all other employees.'
The Employer and United Furniture Workers of America, CIO, Local
415, herein called the Furniture Workers, oppose severance of the
group sought by the IAM from the production and maintenance unit
established in the plant for a period of years, and now sought by the
Upholsterers and the UAW-CIO.
There are approximately 67 employees in the unit requested by the
IAM. All these employees possess the skills of machinists, although
not all are classified as "machinists" by the Employer; and the work of
these employees requires the constant exercise of their skills, acquired
only after long training. These employees, therefore, constitute a
skilled craft group.
The other unions here involved, particularly the Furniture Workers,
and the Employer, object to severing this group from the existing more
comprehensive production and maintenance unit at the plant, prin-
cipally on the ground that the group is not homogeneous, in that it
includes employees from four separate departments, scattered through-
out the plant. However, the bulk of these employees are in one de
partment, the toolroom, and, insofar as the record indicates, the group,
sought by the IAM comprises all the skilled machinists in the plant..
Furthermore, all machinists, including the metal model makers, tool
and die makers, and other classifications who are machinists by trade
and are performing skilled machinist's work, operate under similar
general working conditions, have the same employee benefits, and,
irrespective of the department to which they are assigned, perform
comparable work and receive the same pay for their respective classi-
fications. None of them is paid on an incentive basis, unlike production
employees, who generally do receive incentive pay.
Under these circumstances, we find, contrary to the contentions of
the Employer, the Upholsterers, the UAW-CIO, and the Furniture
Workers, that the employees sought by the IAA[ constitute an identi-
' The IAM 's motion to amend its petition , referred to the Board by the hearing officer,
is hereby granted.
AMERICAN SEATING COMPANY 271
liable, skilled, craft group, and that they may, if they so desire, con-
stitute a separate unit,2 or be included in a larger unit of production
and maintenance employees.
There is no dispute among the parties with respect to the composition
of the unit sought by the Upholsterers and the UAW-CIO. However,
we shall make no final unit determination at this time, but shall be
guided in part by the desires of the employees as expressed in the elec-
tions hereinafter directed. If a majority of the employees sought by
the IAM vote for it, they will be taken to have indicated their desire to
constitute a separate appropriate bargaining unit.
The Furniture Workers has, since the hearing in these cases, com-
plied with the registration and filing requirements of Section 9, and
we shall, in accordance with the Furniture Workers' request, place its
name on the ballot in the elections herein directed.
Our dissenting colleague would not place the Furniture Workers
on the ballot because of a press statement, not part of the record be-
fore us, to the effect that an officer of the United Furniture Workers of
America, CIO, "still believed in the principles and doctrines of the
Communist party." However, the intent of Congress is clear that this
Board should not go behind the affidavits required to be filed under
the provisions of Section 9 (h), in order to ascertain their truthfulness.
As we said in Matter of Craddock-Terry Shoe Corporation, 76 N. L.
R. B. 842:
It is not the purpose of the statute to require the Board to in-
vestigate the authenticity or truth of the affidavits which have been
filed. Persons desiring to establish falsification or fraud have re-
course to the Department of Justice for a prosecution under Sec-
tion 35 (a) of the Criminal Code.
The original bill, as passed by the House and by the Senate in 1947,
contained no provision for the filing of affidavits, but forbade certifica-
tion of a union if one or more of its officers was a member of the Com-
munist party or believed in or supported any organization teaching
the overthrow of the United States Government by force. The af-
fidavit requirement was substituted in the conference bill, and re-
mained unchanged in the final Act. Summarizing the differences be-
tween the original bill and the conference version, Senator Taft said :
In reconciling the two provisions the conferees took into account
the fact that representation proceedings might be indefinitely de-
layed if the Board was required to investigate the character of all
the local and national officers as well as the character of the officers
of the parent body or federation. The conference agreement pro-
2 Matter of E. I. DuPont de Nemour8 and Company, 83 N. L. R. B. 865.
272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vides that no certification shall be made or any complaint issued
unless the labor organization in question submits affidavits ex-
ecuted by each of its officers . . . to the effect that they are not
members or affiliates of the Communist Party or any other pro-
scribed organization. The penal provisions of Section 35 (a)
of the Criminal Code (U. S. C., title 18, sec. 80) are made ap-
plicable to the execution of such affidavits.3
In answer to a querry on the floor of the Senate, Mr. Taft said.:
... The Senate adopted an amendment which provided that
no -union could be certified if any of its officers were Communists.
That seemed to us impracticable. With the agreement of all the
conferees we provided that the union must file an affidavit that
none of its officers are Communists, or whatever the language may
be. Otherwise, the way it was passed by the Senate, the whole
certification might be tied up for months while determination was
made as to whether a man was a Communist. Today it is provided
that officers shall file statements to the effect that they are not Com-
munists. If a man who files such a statement tells an untruth
he is subject to the same statute under which Marzani was con-
victed last week."-
Still another analysis of the Act by Senator Taft contains this
statement :
This provision [Section 9 (h) ] making the filing of affidavits
with respect to Communist Party affiliation by its officers a condi-
tion precedent to use of the processes of the Board has been criti-
cized as creating endless delays . It was to prevent such delays
that this provision was amended by the conferees . Under both
the Senate and House bills the Board's certification proceedings
could have been infinitely delayed while it investigated and deter-
mined Communist Party affiliation . Under the amendment an
affidavit is sufficient for the Board's purpose and there is no delay
unless an offieer of the moving union refuses to file the affidavit
required. [Emphasis supplied.] 5
To adopt the procedure urged by our dissenting colleague would
require us , in every case in which the truth of the affidavit was chal-
lenged, to investigate the truth of that affidavit and allow all parties
opportunity to be heard on that subject . It would subject representa-
tion proceedings to all of the delays from which the conference bill?
3 93 Cong . Rec. 6602.
93 Cong. Rec. 6604.
a 93 Cong: Rec. 7002.
AMERICAN SEATING COMPANY 273,
which finally was adopted, was intended to free them. We cannot
adopt a procedure so clearly contrary to the intent of Congress and
so productive of delay in all of our proceedings . The cases cited by-
the dissent appear inapposite to the question before us. None involve
a determination of the truth or falsity of an affidavit duly filed. In.
each we were only concerned with the identity of the real party in
interest, and whether that party had filed the proper affidavits. Such
determinations, unlike those presented by this issue, must necessarily-
be made by this Board, the agency to which is committed the taking
of the action to which compliance with Section 9 (f), (g), and (h) is a
prerequisite.
We shall direct that separate elections by secret ballot be conducted
among employees of the Employer at Grand Rapids within the voting,
groups described below :
1. All employees in the toolroom (Department 29) ; the machinists,,
tool and die maker, and metal. model makers in the research depart--
ment (Department 91) ; the machinists in the maintenance department
(Department 11), and the machinists in the production machine shop,
(Department 21) ; but excluding the housekeeper and storekeepers in
the toolroom , "wood machinists ," supervisors as defined in the Act, and
all other employees.
2. All remaining production and maintenance employees excluding
executives , foremen, assistant foremen, office and clerical employees,
timekeepers , rate setters , and guards and supervisors as defined in.
the Act.
DIRECTION OF ELECTIONS 6
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with the Employer, elections by
secret ballot shall be conducted as early as possible , but not later than
30 days from the date of this Direction , under the direction and super-
vision of the Regional Director for the Region in which this case was;
heard, and subject to Sections 203.61 and 203.62 of National Labor
Relations Board Rules and Regulations , among the employees in the
voting groups described in paragraph 'numbered 4, above, who were
employed during the pay-roll period immediately preceding the date-
of this Direction of Elections , including employees who did not work
during said pay-roll period because they were ill or on vacation or-
6 Any party which does not desire to participate in the elections herein , upon its prompt
request to and approval thereof by the Regional Director , may have its name removed:
from the ballot.
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
temporarily laid off, but excluding those employees who have since
quit or been discharged for cause and have not been rehired or rein-
stated prior to the date of the elections, and also excluding employees
on strike who are not entitled to reinstatement, to determine :
(1) Whether the employees in voting group 1 desire to be repre-
sented for the purposes of collective bargaining by Lodge No. 1907,
United Tool and Die Makers, International Association of Machinists ;
by Upholsterers' International Union of North America, AFL; by
International Union, United Automobile, Aircraft & Agricultural
Implement Workers of America (UAW-CIO) ; by United Furniture
Workers of America, CIO, Local 415; or none;
(2) Whether the employees in voting group 2 desire to be repre-
sented for the purposes of collective bargaining by Upholsterers' In-
ternational Union of North America, AFL; by International Union,
United Automobile, Aircraft & Agricultural Implement Workers of
America (UAW-CIO) ; by United Furniture Workers of America,
CIO, Local 415; or none.
MEMBER GRAY, dissenting in part :
I cannot agree with the decision of the majority of the Board to
place the name of United Furniture Workers of America, CIO, Local
415, on the ballot in the elections directed in this proceeding.
Prior to June 9, 1949, this union was not in compliance with Sec-
tion 9 (h) of the Act by reason of the failure of certain officers of
United Furniture Workers of America, CIO, including the secretary-
treasurer, to file the affidavit required by that section.7 On June 6,
1949, there was published in the press 8 a statement attributed to the
secretary-treasurer of Furniture Workers that he had resigned from
the Communist party and intended to execute the affidavit required
by the Act, but that he still believed in the principles and doctrines
of the Communist party. On June 9, 1949, the Board received from
the secretary-treasurer and other officers of Furniture Workers affi-
davits executed on June 8, 1949, on a form prescribed by the Board.
The affidavit filed by the secretary-treasurer of Furniture Workers
7 Section 9 (h) reads-
No investigation shall be made by the Board of any question affecting commerce
concerning the representation of employees raised by a labor organization . . . unless
there is on file with the Board an affidavit executed contemporaneously or within the
preceding twelve-month period by each officer of such labor organization and the
officers of any national or international labor organization of which it is an affiliate
or constituent unit that he is not a member of the Communist Party or affiliated with
such party, and that he does not believe in, and is not a member of or supports any
organization that believes in or teaches, the overthrow of the United States Govern-
ment by force or by any illegal or unconstitutional methods. The provisions of
Section 35A of the Criminal Code shall be applicable in respect to such affidavits.
New York Times, June 6, 1949, p. 1.
AMERICAN SEATING COMPANY 275
avers, as the Act requires, that the affiant does not believe in the over=
throw of the United States Government by force or by any illegal
or unconstitutional methods and that he does not believe in , belong
to, or support, any organization that teaches such a doctrine. How-
ever, it is difficult for me to reconcile this averment with the profes-
sion of continued adherence to the doctrines of the Communist party,
mentioned above. If, as I believe to be the case, the public statement
contradicts the affidavit, we are not required to give effect to the affi-
davit. I do not believe that the Act requires the Board to stultify
itself by honoring an affidavit that, in my opinion, has been repudiated
in advance by the affiant. That is not the sort of affidavit contem-
plated by Section 9 (h).
Moreover, even if the affidavit filed by the secretary-treasurer of
Furniture Workers be considered to comply with the statutory re-
quirements, I believe that the Board may, nevertheless, in the exercise
of its discretion, refuse to place Local 415 on the ballot in this case.
Section 9 (h) prevents the Board from investigating a question of rep-
resentation unless the prescribed affidavits are filed; it does not how-
ever require that, upon the filing of the proper affidavits, the Board
proceed with its investigation of the representation question or, as in
this case, place the "complying" union on the ballot. In fact, where
the Board has fotmd that it would not effectuate the purpose of the
Act to place a union on the ballot, it has declined to do so, notwith-
standing technical compliance by that union with Section 9 (h).11
One of the purposes of the Act, as expressed in Section 9 (h), is to
free labor organizations from control or domination by persons who
believe in the overthrow of our Government by force and who adhere
to or support organizations which propagate such a belief. Such con-
trol or domination was thought by Congress to be incompatible with
the major statutory objective of promoting peaceful relations between
labor and management.1° This objective would be defeated by mak-
ing the processes of the Board available to a union, one of whose high-
est officers has publicly affirmed his continuing faith in the doctrines
of Communism. Such a union does not cease to be dominated by un-
democratic elements merely because lip-service has been paid to the
9 Thus, notwithstanding technical compliance by a union with Section 9 (h), the Board
has in a number of cases refused to entertain a petition filed by the complying union or
to place such union on the ballot , where such refusal was deemed necessary to prevent
circumvention of Section 9 (h). Matter of Lane-Wells Company, 77 N. L. R. B. 1051 ;
Matter of U. S. Gypsum Company , 77 N. L. R. B. 1098; Matter of National Automotive
Fibres, Inc., 81 N. L. R. B. 1232; Matter of Southland Paper Mills , 81 N. L. R. B. 330;
Matter of the Empire Furniture Manufacturing Co., 82 N. L. It. B. 427 . It is difficult to
imagine any more open invitation to circumvention of the Act than the position taken
by the majority in the present case.
io See 93 Daily Cong. Rec. 3577 , April 16, 1947.
857829-50-vol. 85-19
276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
statute. The- majority evidently believe that because all other affi-
davits have been accepted as wholesome,-this patently evasive affidavit
must also be accepted. The issue, as I see it, is not whether the Board
is required to investigate the truth of all affidavits whenever chal-
lenged. Rather, the question is whether to lend the processes of this
Government to Local 415 in this case. To me, as a member of this
Board charged with the administration of the Act, the effrontery of
the. Union's officer is too offensive, too subversive of the objectives of
this Act to permit his conduct to go unnoticed. Did Congress intend
us to be automatons on this subject, to accept all affidavits without
question regardless of circumstance, and mechanically to place them
in a file simply because the statute provides for filing? I think not!
If the majority is unwilling to rely on a press account, it can, if it de-
sires, take testimony on the subject in a Board hearing. Accordingly,
it would not, in my judgment, effectuate the purpose of the Act to place
Local 415 on the ballot herein.
The last sentence of Section 9 (h) specifies the criminal sanctions
applicable to false affidavits filed under that subsection. However, I
find no evidence that Congress intended by this reference to criminal
sanctions to preclude resort by the Board to appropriate administra-
tive sanctions, as well.
In view of all these considerations, I would deny Local 415 of Fur-
niture Workers a place on the ballot in the elections directed in this
proceeding.