Boston Machine Works Co.

National Labor Relations Board - Board Decisions

Mar 29, 1950

89 N.L.R.B. 59 (N.L.R.B. 1950)

In the Matter of BOSTON MACH INE WORics COMPANY, EMPLOYER AND
PETITIONER and LOCAL 257, INTERNATIONAL UNION OF ELECTRICAL,
RADIO AND MACHINE WORKERS, CIO and UNITED ELECTRICAL, RADIO
AND MACHINE WORKERS
Case No.1-RL11-67.Decided March 09, 1950
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before Robert E.
Greene, 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. Local 257, International Union of Electrical, Radio and Machine
Workers, CIO, hereinafter called Local 257, IUE-CIO, and United
Electrical, Radio and Machine Workers, hereinafter called UE, are
labor organizations claiming to represent certain employees of the
Employer.
3. The question concerning representation :
On August 20, 1948, the UE, as an affiliate of the CIO, together
with its then Local 257, executed an agreement with the Employer,
covering the employees involved in this case, to be- in effect until
August 21, 1949. On that date, pursuant to its terms, the contract
was automatically renewed for 1 year to August 21, 1950. The UE
contends that this contract is a bar to a present determination of
representatives. Local 257, IUE-CIO contends, on the other hand,
that the facts in this case reveal a schism in the contracting union
and that under well-established principles of the Board an immediate
election should be directed. The Employer, as the Petitioner, takes
a similar position, asserting that it does not know which union repre-
sents its employees, and is therefore unwilling to bargain with either
until one or the other has been certified by the Board as the exclusive
bargaining representative.
The record reveals that on November 8, 1949, at a regular meeting
of Local 257, then affiliated with the UE, a motion was proposed that
89 NLRB No. 17.
59
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 257 disaffiliate from the UE and affiliate with the IUE-CIO.
The motion was approved unanimously by the members present. The
November 8 meeting was publicized several days in advance by notices
on the plant bulletin boards and by oral notification through the shop
stewards to individual members. Approximately 118 members out
of a total membership of about 1.98 attended the meeting. After- the
meeting Local 257 applied for and received a charter from the IUE-
CIO. The president and vice president of ' the former UE Local 257
were elected by the membership of the new local and have continued
to serve in their respective capacities as officers of Local 257, IUE-
CIO. Uncontroverted testimony indicates that all of the membership
of the former UE Local 257 have signed membership cards in Local
257, IUE-CIO, that UE Local 257 in fact has no members, has held
no meetings since November 8, 1949, and has processed no grievances.
For all practical purposes UE Local 257 is a defunct organization..
On the basis of facts substantially similar, the Board traditionally
has held that a current contract between the Employer and a pre-
existing bargaining representative of its employees cannot operate to
bar an immediate election for the purpose of resolving the question
concerning representation.' As a result of the intraunion split re-
vealed by the record in this case, each of two contending unions
challenges with some show of right the other's claim to a representative
bargaining status. The Employer reasonably asserts that it does not
know with which union to bargain and requests the Board .to rede-
termine the employees' desires with regard to a bargaining representa-
tive. It is apparent that the normal bargaining relationship between
the Employer and the heretofore exclusive bargaining representa-
tive of its employees has become a matter of such confusion, because
of the events described above, that the relationship between them no
longer can be said to promote stability in industrial relations. Under
these circumstances, as we have previously said,' to treat the contract
as a bar to a present redetermination of representatives would seriously
impede rather than encourage the practice of collective bargaining
which the Act was designed to foster and protect. We therefore
believe that the conflicting claims to representation of the two labor
organizations involved can best be resolved by an election.
1 Brewster Aeronautical Corporation , 14 NLRB 1024 ; National Tea Company , 35 NLRB
340 ; Gelatin Products Company, 49 NLRB 173 ; Brenizer Trucking Company , 44 NLRB
810; I3rightwate.r Paper Company, 54 NLRB 1102 ; Foley Lumber & Export Corporation,
70 NLRB 73 ; Carson Pirie Scott & Company, 69 NLRB 935 ; Jasper Wood Products Com-
pany, Inc., 72 NLRB 1306; Elizabethtown Water Company Consolidated, 84 NLRB 845;
Hackensack Water Company , 84 NLRB 842 ; Sun Shipbuilding and Dry Dock Company, 86
NLRB 20.
2 See Container Corporation of America , 61 NLRB 823.
BOSTON MACHINE WORKS COMPANY 61
The unusual circumstances of this and similar cases raise, in addi-
tion to the question of representation here considered , other questions
relating to the property rights of the parties as well as collective bar-
gaining obligations with reference to the current contract . So far as
the property rights of the parties are concerned , that is a matter prop-
erly for the courts rather than this Board to decide . With regard to
the duty of the Employer and the representative of its employees to
bargain now or in the future upon the basis of the current contract
or for a new contract , we do not believe it to be this Board's function,
in a representation proceeding, to pass upon this issue . We find it
necessary to determine here only the question of representation as re-
quired by Section 9 (c) of the Act. The impact of the resolution of
that question upon the collective bargaining duties and rights of the
Employer, the employees , and the labor organizations must be de-
termined by the application of other provisions of the Act, in the light
of a factual situation not now before. us.
Generally , in cases of this nature the Board has not attempted
to rule upon the validity or invalidity of the current contract. It has
decided only that the employees should be permitted to determine
through an election the identity of the labor organization which they
desire to have represent them.3 In several cases,' however, it has held
that the election would be for the restrictive purpose of determining
the representative to administer the current contract . We need not
now decide whether the representative to be certified herein must
assume the existing contract . To the extent these cases purport to
decide that question and are inconsistent with our decision and direc-
tion of election herein, they are hereby overruled.
In his separate opinion Member Reynolds argues that the interven-
ing certification by the Board of another labor organization during
the term of a contract otherwise valid between the Employer and the
former bargaining representative of its employees can in no manner
affect the continued validity of that contract . Under his view the
Employer and the union certified as the representative of the em-
ployees would be required to engage in collective bargaining on the
basis of the preexisting contract . Should the employees vote for no
union in the forthcoming election , presumably Member Reynolds
would take the position that the contract nevertheless continued in
existence between the Employer and the employees . As indicated
above, we think it neither necessary nor proper in a representation
proceeding to rule upon the collective bargaining duties of the parties
3 See General Motors Corporation, 88 NLRB 450, where Chairman Herzog, on the
authority of cases cited in footnote 1, supra, relied upon this rationale.
4 Harbison-Walker Refractories Company. 43 NLRB 1349 ; The Register and Tribune
Company, 60 NLRB 360.
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or on other issues not before us. The best traditions of Anglo-Ameri-
can law suggest that this Board should neither discuss nor decide
matters which are not necessary to resolve the issues presented for
specific decision at the time. To the extent we might do so we would
be merely stating dictum.
However, to the extent that our colleague's argument goes beyond
the expression of a theory that the union is merely the agent of the
employees,s and may be taken to mean that our certification of any
union in this case should be conditioned by the requirement that it
adhere to the terms of the unexpired contract, it should be noted that
this very procedure in representation cases was considered and rejected
by the franlers of the amended Act.
In reporting to the House the House conferees explained the deletion
of such a provision as follows :
Under the House bill, in section 9 (f) (8), it was provided that
if a new representative were chosen while a collective bargaining
agreement was in effect with another representative, certification
of the new representative should not become effective unless such
new representative became a party to such contract and agreed to
be bound by its terms for the remainder of the contract period.
Since the inclusion of such a provision might give rise to an
inference that the practice of the Board, with respect to conduct-
ing representation elections while collective bargaining contracts
are in effect, should not be continued, it is omitted from the
conference agreement.6
We do not believe that this Board should qualify its certification
of the employees' bargaining representative by imposing restrictions
riot to be found in any provisions of the Act and, indeed, deliberately
emitted therefrom.
6 This theory has not been expressed in Board decisions since the early cases of New
England Transportation Company, 1 NLRB 1.30, and Swayne