Baker Ice Machine Co., et al.

National Labor Relations Board - Board Decisions

Oct 5, 1949

86 N.L.R.B. 385 (N.L.R.B. 1949)

In the Matter of BAKER ICE MACH1NE COMPANY, ET AL., EMPLOYER and
LOCAL NO. 250 OF THE UNITED ASSOCIATION OF JOURNEYMEN AND
APPRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY OF THE
UNITED STATES AND CANADA, PETITIONER
In the Matter Of REFRIGERATION ENGINEERING COMPANY, ET AL., EM-
PLOYER and REFRIGERATION FITTERS PROTECTIVE ASSOCIATION, ALSO
KNOWN AS LOCAL No . 508, PETITIONER
Cases Nos. 21-RC-603 and 21-UA-811, respectively .Decided
October 5, 1919 -
DECISION
ORDER
AND
DIRECTION OF ELECTION
Upon petitions duly filed, a consolidated hearing was held in these
cases before Ben Grodsky, hearing officer of the National Labor Rela-
tions Board. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed. The motion to
dismiss the petition in Case No. 21-RC-603 made at the hearing by
Refrigeration Fitters Protective Association and referred to the
Board for decision, is denied for reasons stated hereinafter under
paragraph numbered 3.
'Upon the entire record in these cases, the Board finds:
1. The Employers are engaged in commerce within the meaning or
the National Labor Relations Act.'
' The Individual Employers In each case are : Baker Ice Machine Company, Los Angeles ;
Coldew Corporation , South Gate , Calif. ; Modern Refrigerator Works , Glendale , Calif.
Petersen Showcase & Fixture Co., Los Angeles ; Refrigeration Engineering Company, Los
Angeles ; Dell Smith Manufacturing Co., Los Angeles ; Super-Cold Corporation, Los Angeles ;
Vering Manufacturing Co., Los Angeles ; Vico Refrigeration Manufacturing Co., Eagle
Rock, Calif. ; Ward Refrigeration & Manufacturing Co., Los Angeles ; Weber Showcase &
Fixture Co ., Los Angeles ; and Anderson & Wagner, Inc., Los Angeles. -
Following the removal of these cases to the Board for decision, Local 508 filed material
in the form of a motion to sever the York Corporation from the proceedings on the ground
that the York Corporation has withdrawn from the Employer's Association and is no
longer represented in collective bargaining matters by the latter group. Pursuant to an
Order to Show Cause , the Board , on September 6, 1949, issued an Order dismissing the
instant petitions as to the York Corporation. -
86 N. L. R. B., No. 51.
385
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Petitioners are labor organizations claiming to represent
employees of the Employer.2
3. The question concerning representation :
In 1946, the Employers signed a contract with the AFL Los Angeles
Building and Construction Trades Council and its affiliated Local
Craft 11n1ons.3 In the middle of 1947, this contract was extended by
the parties and the termination date set at July 1, 1948. The Trades
Council, at the time the contract of 1946 was negotiated,' consisted of
the various craft groups which represented employees working in the
Employers' shops. One of the signatory craft groups was Local Union
No. 508, United Association of Plumbers, Steam Fitters and Refrig-
,eration Fitters of the United States and Canada. During the early
-part of 1947, however, Local 508 voted to secede from the United As-
sociation and organized "Refrigeration Fitters Protective Association,
also known as Local 508." 4 In August 1947, the United Association
suspended Local 508 and awarded its jurisdiction to a new union, Local
250.
On April 15, 1948, Local 508 filed the petition in Case No. 21-UA-
811, seeking a union-authorization ballot in a multi-employer unit of
refrigeration fabricators and apprentices. On April 29, Local 508
sent a notice to the Employers stating its desire to amend the contract
of 1946 as extended. Meanwhile, on April 27, the Building Trades
Council notified the Employer that it, also, desired to change the
contract and added that it would not take part in negotiations to
which Local 508 was a party. On May 4, the Employers acknowledged
both communications and stated a desire to negotiate with Local 508
as to the refrigeration fabricatorss. On June 11, notices of the election
pending in the UA case were sent to the parties named in that petition.
Local 250 received no formal notice of the election. On June 15, Local
250 filed petitions for certification covering refrigeration fabricators
employed by three of the Employers in single-employer units.5 Sev-
eral days later, on June 17, Local 250 made a formal claim to the
2 Local 250 contended at the bearing that Local 508 is now defunct and that its mem-
bership has become affiliated with Local No. 986 of the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America. AFL. We find no merit
in this contention. The record shows clearly that Local 508 is in present existence as an
organization for the purposes of collective bargaining and claims to represent the employees
of the Employer.
3 The Employers collectively comprise the "Refrigeration Manufacturers Association of
Southern California," for purposes of contract negotiations in the field of collective bar-
gaining. The Association conducts negotiations on a multi -employer unit basis through
its executive secretary . A master contract Is signed first by the executive secretary and
then by the individual Employers. There is apparently no delineation of the exact
authority delegated to the Manufacturers Association or its officers by the Employer-
members nor is there any provision as to whether or not action by the executive secretary
must be ratified by the members. .
4 See Natter of fir Conditioning Company of Southern California, et al., 81 . N. L. R. B.
946.
5 Cases Nos. 21-RC-376, 377, 378.
BAKER ICE MACHINE COMPANY 387
Employers of successorship rights under the expiring contract. On
June 18, the union-security authorization election was held and the
ballots were impounded pending disposition of the petitions filed by
Local 250. A short time thereafter, the Employer informed Local 250
that its claim to successorship under the contract could only be decided
by judicial ruling or administrative directive. On July 1, Local 250
was notified by the Regional Director for the Twenty-first Region
that its petitions for single-employer units had been dismissed because
the units were inappropriate. This action was appealed to the Board
by Local 250. Meanwhile, in July, the Employers and the Trades
Council signed a new contract for all the crafts previously represented
except the refrigeration fabricators. On September 28, 1948, the
Board sustained the dismissal of Local 250's petitions. A week after
notification of this action, Local 250 filed the petition in Case No.
21-RC-603, covering a multiple-employer unit. This petition and
that in Case No. 21-UA-811 were then consolidated for purposes of
hearing.
Local 508 contends that the petition in Case No. 21-RC-603 should
be dismissed on the ground that the election results in the UA
election are conclusive, and it maintains that until these results
are ascertained the Board has no jurisdiction to proceed with the
representation case. It further argues that the petition in Case No.
21-RC-603 was prematurely filed, and ineffective to nullify the union-
security election by raising a question concerning representation.
Finally, Local 508 asserts , that Local 250 is guilty of lathes and
purposeful delay.
Local 250 contends that it was not given proper notice of the union-
security petition and that a question concerning representation has
existed since a time prior to the filing of the petition in Case No.
21-UA-811. The Employers take no position on any of the issues.
We find no merit in the argument of Local 250 that it was not
given proper notice of the union-security election or in its contention
that a question concerning representation has existed since prior to
that election. It was not until June 15, a date shortly before the
election and after the parties had been formally notified, that Local
250 evinced any formal claim to represent any of the employees in-
volved in that election.' It is the contention of Local 250 that the
Trades Council's action in notifying the Employers that it would not
participate in negotiations with Local 508 raised a question concern-
° Local 250 asserts, in its brief, that its participation in Matter of Air Conditioning
Company of Southern California ., et al.. supra, put both Local 508 and the Employers on
notice of its claim to bargaining rights for the refrigeration industry in that area. We
do not agree and we find to the contrary . The mere participation in a companion case
involving a different class of employees , a different employers ' association , and many
different individual employers , does not constitute adequate notice of a claim to represent
the employees involved in this case.
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing representation and placed the Employers on notice of a unit
dispute as well as of Local 250's interest in the matter. But, as the
Trades Council did not claim to represent the refrigeration fabri-
cators, this argument, too, is without merit. The petitions for single-
employer units involving three of the Employers, filed by Local 250
on June 15, 1948, were dismissed as requests for inappropriate units.
As such they cannot be considered to have raised a question or ques-
tions concerning representation within the meaning of the Act as
of the time of the union-security referendum.?
Although we find that no question concerning representation existed
at the time of the election in Case No. 21-UA-811, we do not believe
that any useful purpose would be served by the opening of the im-
pounded ballots at this time. For the reasons explained below, the
question decided in that referendum will. be moot unless and until
the employees in the bargaining unit now decide to retain Local 508
as their bargaining representative. Therefore, we shall direct that
the ballots remain in the custody of the Regional Director of the
Twenty-first Region.
The contention of Local 508 that the Board lacks jurisdiction in the
representation case instituted by Local 250, because of the undisclosed
results of the union-security election, is clearly without merit. There
is no statutory bar to the entertainment of the petition in Case No. 21-
RC-603. The Act prohibits the direction of two elections under Sec-
tion 9 (c) or two elections under Section 9 (e) in the same bargaining
unit within a 12-month period," but we have held that these restric-
tions do not preclude the direction of both a union-security referendum
and a representation election within 1 year's time.s The rationale
of that interpretation of the relevant statutory provisions is not con-
tested herein by the parties or by our dissenting colleagues. However,
Local 508 maintains that the referendum conducted in Case No. 21-
UA-811 was dispositive of Local 250's petition for an election of
representatives, and our colleagues argue that under historic Board
policy, we should decline to act on any petition for some reasonable
period until Local 508 has had an opportunity to enjoy the "legitimate
fruits," of its assumed victory in the referendum. These arguments
P However, in view of the unique situation present by the facts herein and the vigorous
prosecution by Local 250 of its claim that a question concerning representation Existed
prior to the union-security referendum, we To not believe that the action of the Regional
Director in impounding the ballots in Case No. 21-UA-Sll was unreasonable. Nor do we
believe that the record shows ally laches or such delay on the part of Local 250 as to
invalidate its petition.
8 Section 9 (c) (3) provides that No election shall be directed in any bargaining unit
or subdivision within which, in the preceding twelve-month period, a valid election shall
have been held." Section 9 (e) (3) dealing with union-security elections, provides that
"No election shall be conducted pursuant to this subsection in any bargaining unit or any
subdivision within which, in the preceding twelve-month period, a valid election shall
have been held."
See Matter of Gilchrist Timber Company, 76 N. L. R. B. 1233.
BAKER ICE MACHINE COMPANY 389`
are fallacious, in our opinion, for the precise reason emphasized in the
dissenting opinion, i. e., that there was no question concerning rep-
resentation at the time of the union authorization election, and it was
not a question concerning representation which was resolved in that
referendum.
As dictated by Section 9 (e) of the Act, the only question submitted
to the employees in the referendum was whether or not they desired to
confer upon Local 508-which was then their acknowledged bargain-
ing agent, as no interested party had effectively claimed otherwise-
the specific authority to make a union-shop contract. The employees
did not vote, and were not given the opportunity to vote, on the more
fundamental question whether or not they desired to invest, or reinvest,
Local 508 with the authority to represent them for the purposes of col-
lective bargaining generally.10 Because its purpose was so limited, the
election conducted last year in the Section 9 (e) case affords no proper
basis for application of the Board's policy of protecting the status of
certified representatives. This would be true even if we had ascer-
tained and "certified" that a majority of the employees voted "yes" in
the referendum. The Board's traditional policy of foreclosing ques-
tions of representation for a year after a certification applies to certifi-
cations issued in Section 9 (c) proceedings, in which employees exer-
cise, under Board auspices, their basic statutory right to designate a
bargaining representative. Once employees have enjoyed this oppor-
tunity, there is ample justification, even aside from the statutory ban
on two elections within a single year, for requiring them to abide by
their choice for the period of time deemed reasonably necessary to
achieve stabilized collective bargaining relationships.h1 But we can
perceive no justification for denying employees the opportunity to vote
on the issue of their representation merely because they have recently
exercised their franchise as to an entirely different subsidiary issue.
The employees in this case have not designated a bargaining represent-
ative for several years; they have never, so far as the record shows,
elected a bargaining representative under Board auspices. Assuming
10 Our dissenting colleagues seem to believe that the lesser authority to make a particular
type of contract, which may have been given to Local 508 in the union-shop referendum,
included the greater authority to serve as the exclusive bargaining agent of the employees
in this unit for other purposes. In our opinion, this assumption is not only refuted by
logic, but is also incompatible with the specific provisions of Section 9 (e), and the distinct
place and function of that subsection in the statutory scheme. We think that Congress
clearly intended , in distinguisling between the general authority to bargain and the
special authority to make a union-security contract, to make the latter only supplementary
to, and dependent upon, the former. Whether or not a union's authority to make a
union-shop contract is "ephemeral," as our dissenting colleagues say, it cannot survive the
dissipation of the union 's basic authority as a statutory bargaining representative.
n See, in addition to the case cited in footnote 14 of the dissenting opinion, Matter of
Botany Worsted Mills. 41 N. L. It. B. 218, enfd. 133 F. 2d 876 (C. A. 3) ; Matter of
Century Oxford Manufacturing Corporation,, 47 N. L. R. B. 835, enfd. 140 F. 2d 541
(C. A. 2) ; Matter of Appalachian Electric Power Company, 47 N. L. It. B. 821, enfd. 140
F. 2d 217 (C. A. 4).
867351-50-vol. 86 26
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that these employees did authorize Local 508 to make a particular kind
of contract for them, in last year's union-shop referendum, it appears
from Local 250's petition that they may now desire to change their
bargaining agent. We believe that it is our clear duty, under Section
9 (c) of the Act, to resolve that question concerning the representation
of these employees, which is before us in Case No. 21-RC-603. We
shall, accordingly direct an election in which the employees may choose
between Local 508, Local 250, and no union.
We find that a question affecting commerce exists concerning the rep-
resentation of employees of the Employers within the meaning of
Section 9 (c) and Section 2 (6) and (7) of the Act.
4. The following employees of the Employers constitute a unit
appropriate for purposes- of collective bargaining within the meaning
of Section 9 (b) of the Act:
All refrigeration fabricators, and their apprentices, in the shops of
the Employers, excluding all other employees, and supervisors within
the meaning of the Act.
ORDER
Upon the entire record in Case No. 21-UA-811, the National Labor
Relations Board hereby orders that the ballots impounded in this case
remain in the custody of the Regional Director for the Twenty-first
Region until such time as the Board directs further action.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with the Employer, an election 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
unit found appropriate in paragraph numbered 4, above, who were
employed during the pay-roll period immediately preceding the date
of this Direction of Election, including employees who did not work
during said pay-roll period because they were ill or on vacation or
temporarily laid off, but excluding those employees who have since
quit or been discharged for cause and have riot been rehired or re-
instated prior to the date of the election, and also excluding employees
on strike who are not entitled to reinstatement, to determine whether
they desire to be represented, for purposes of collective bargaining, by
Local No. 250 of the United Association of Journeymen and Appren-
tices of the Plumbing and Pipe Fitting Industry of the United States
BAITER ICE MACHINE COMPANY 391
and Canada , or by Refrigeration Fitters Protective Association, also
known as Local 508, or by neither.
MEMBERS MMIuimocic and GRAY, dissenting :
We cannot join in the decision of the majority to order an election
of representatives in the face of a legitimate claim on the part of Local
508 to the protection of the Act and the established policies of the
Board. In our opinion , the majority , by refusal to ascertain the results
of the union-security election and to accord any weight to those re-
sults , ignores both the equities of the parties and the intent of the Act.
There is no dispute as to the facts of this case, but only a sober query
as to whether the Board, through the conclusions of the majority, has
not largely nullified the intent of Congress to provide labor organiza-
tions with a measure of contractual security through the processes
of Section 9 (e). Their decision rests upon the grounds that an
election under Section 9 (e) does not bar an election under Section 9
(c) and that the latter should now be directed because of the conflict-
ing claims of Local 250 and Local 508 as to representation of the
employees. While there is no question that elections under both
sections of the . Act may be held in the same 12-month period, the
majority, in applying that settled doctrine to the instantI facts, mis-
interprets its significance. Certainly the Board, in Matter of Gil-
christ Timber Com. any,12 did not hold that representatives certified
under Section 9 (c) or Section 9 (e) could be challenged at will. On
the contrary , the decision in that case merely states that a representa-
tion election will not necessarily bar a union-security petition filed
several months later.
The majority further holds that because Local 250 was not a party
to the union -security election, the results of that election cannot be
held to be conclusive as to the choice of the employees at the present
time. This position evades the admitted fact that Local 250 was not
a party to the election because at that time it did not have a claim of
representation . The import of the majority decision, therefore, is
that the legitimate fruits of victory in an election under Section 9 (e)
may be denied a union through the opportunistic tactics of a rival
organization which, at the time of that election, had no color of claim
to representation of the employees involved. Our colleagues agree
that clearly no question concerning representation existed at the time
of the union-security election ; in fact the Board had to so find before
authorizing it. As the legality of that election was not challenged
except upon that ground, it is equally clear that the impounded ballots
should have been opened and tabulated. Paradoxically, the majority,
12 See footnote 9, supra.
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
upon finding that there is no merit to the contention that the election!
was void, blithely wipes the slate clean on the grounds that to open
the ballots at this time would serve no useful purpose. It is sub-
mitted that this does violence to the plain intent of Section 9 (e) and
the Board's repeated affirmations of the importance of stability in
bargaining relationships.
The majority opinion, by refusal to open the impounded ballots,.
in effect, holds that an organization which wins an election under
Section 9 (e) gains no rights or protection other than an ephemeral
authority to negotiate a union-security contract. The incongruity of
this position in the light of the intent of the statute and the often.
enunciated policies of this Board, is easily seen. The Board has, as a
matter of long standing precedent, held that a union certified as the
representative of employees has a period of 1 year in which it may
attempt to secure a contract without being harassed by the claims of
other organizations.13 The rationale for this period of protection IS
clear. "When employees resort to the administrative processes of the•
Act, it is only reasonable to require that the resultant registering of
their choice of a bargaining agent not be made subject to immediate-
or capricious changes in sentiment. To hold otherwise would not only
subject the Board to undue administrative difficulties, but would lead
to the establishment of conditions destructive of stability in labor
relations." 14 Yet our colleagues would deny this same period or any
reasonable period of protected stability to victors in a union-security
election even though, in Section 9 (e), Congress made unmistakable-
its intent to restrict benefits thereunder to unions whose majority status=
was unquestioned. Thus, a petitioner under Section 9 (e) must allege
and make an appropriate showing thereof, that 30 percent of the em-
ployees in the unit desire the requested authorization. Further, under
the provisions of Section 8 (a) (3), the authorization can be granted
only upon the affirmative vote of a majority of those eligible to partici-
pate in the election, not merely a majority of those voting as required.
by Section 9 (e). To deny protection to a representative thus reaf-
firmed is to take the position that compliance with the more rigorous.
provisions of Section 9 (e) makes ,,t victorious union's majority support.
more questionable.
Section 9 (e) states flatly that, upon a petitioner's compliance with
the prerequisites noted above, "the Board shall, if no question of repre-
sentation exists, take a secret ballot of such employees, and shall certify
the results thereof to such labor organization and to the employer."'
(Emphasis supplied.) The majority opinion offers no adequate jus--
" See Matter of Con P. Curran Printing Company, 67 N. L. R. B. 1419 and cases cited'
therein.
14 Matter of Bohn Aluminum and Brass Corporation (Plant #13 and Magnesium-
Fabricators), 57 N. L. R. B. 1684, 1686.
BAKER ICE MACHINE COMPANY 393
tification for the refusal of the Board to perform this unqualified
mandate, but, by giving retroactive protection to this present claim of
Local 250, effectively deprives Local 508 of a substantial right extant
at a time when the rival claim was only a gleam in an organizer's eye.
The action of the majority in ordering the representation election
despite the Board's failure to perform its statutory duty and despite
its prior policy of encouraging bargaining stability, adds confusion
and doubt to the status of a successful petitioner under Section 9 (e).
It is a reasonable assumption that Local 508 procured a majority of the
-eligible voters in the union-security election.15 If the result of the
election now directed by our colleagues shows that Local 508 has lost
that majority, the defection is attributable to the actions of the Board
and the dilatory tactics of Local 250. If such a loss of majority
.support by Local 508 had resulted from the machinations of an em-
ployer, the Board would be unanimous in its protest.
It is our considered opinion that the decision of the majority consti-
tutes a branch of the statute and of Board Policy. For those reasons,
we dissent herein.
15 Although, of course, it cannot be determined whether Local 508 actually won the UA
-election without counting the ballots, the overwhelming statistical odds would indicate
that it did secure a majority of eligible voters, since 96 percent of the union -security
,elections held in the last fiscal year resulted in a union victory.