Briggs Indiana Corp.

National Labor Relations Board - Board Decisions

Oct 1, 1945

63 N.L.R.B. 1270 (N.L.R.B. 1945)

Tn the Matter of BRIGGS INDIANA CORPORATION and INTERNATIONAL
UNION, UNITED AUTOMOBILE, AIRCRAFT & AGRICULTURAL IMPLEIIENt
WORKERS OF AMERICA, CIO, LOCAL 473
Case No. 11-R-781.-Decided October 1, 194i
Beaumont, Smith d Harris, by Mr. Percy J. Donovan, of Detroit,
Mich., for the Company.
Messrs. William F. Harrington and Russell J. Merrill, of Indianap-
olis, Ind., and Mr. Joe Witt, of Evansville, Ind., for the Union.
Mr. Philip Licari, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF TIIE CASE
Upon a petition duly filed by International Union, United Automo-
bile, Aircraft & Agricultural Implement Workers of America, CIO,
Local 473, herein called the Union,- alleging that a question affecting
commerce had arisen concerning the representation of employees of
Briggs Indiana Corporation, Evansville, Indiana, herein called the
Company, the National Labor Relations Board provided for an appro-
priate hearing upon due notice before Clifford L. Hardy, Trial Exam-
iner. Said hearing was held at Evansville, Indiana, on May 15, 1945.
The Company and the Union appeared and participated. At the hear-
ing, the Company moved to dismiss the instant petition. For reasons
stated in Section III, infra, the motion is granted. All parties were
afforded full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues. The Trial
Examiner's rulings made at the hearing are free from prejudicial error
and are hereby affirmed. All parties were afforded an opportunity to
file briefs with the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
.o
1. THE BUSINESS OF THE COMPANY
Briggs Indiana Corporation, an Indiana corporation and •a wholly
owned subsidiary of Briggs Manufacturing Company, Detroit, Michi-
63 N. L. It. B., No. 201.
1270
BRIGGS INDIANA CORPORATION 1271
gan, is engaged in Evansville, Indiana, in the manufacture of airplane
parts and other war materials. During the year 1944, all of the raw
materials used by the Company were shipped to its Evansville plant
from points outside the State of Indiana. During the same period,
the Company sold products valued in excess of $1,000,000, most of
which was shipped from its Evansville plant to points outside the State
of Indiana.
The Company admits, and we find, that it is engaged in commerce
within the meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
International Union, United Automobile, Aircraft & Agricultural
Implement Workers of America, Local 473, affiliated with the Con-
gress of Industrial Organizations , is a labor organization admitting
to membership employees of the Company.
III. THE ALLEGED QUESTION CONCERNING REPRESENTATION
On November 13, 1942, the Company, on the one hand , and both
the International Union, United Automobile , Aircraft & Agricultural
Implement Workers of America, CIO ,' and its Locals No. 212 and No.
265 on the other, entered into a collective bargaining agreement. This
contract , presently in effect but soon to reach its anniversary date,2
covers all production and maintenance employees in the Company's
Evansville and Detroit plants, and provides in part as follows :
... That it [the contracting unions] will not accept for mem-
bership direct representatives of the management , such as super-
intendents , foremen, assistant foremen, or supervisors in charge
of any classes of labor, time study men, plant protection em-
ployees, or confidential salaried employees (Article 1, para-
graph (d)).
The petitioning union in the present case was later chartered specifi-
ically to attract the allegiance of this Company 's plant-protection
employees . It is an affiliate of the ' International and is subject to
the provisions of the International 's constitution .' Despite this, the
UAWT now seeks to represent 4 Briggs plant-protection employees,
I Hereinafter called the "International ," as contradistinguished from its Local No. 473.
2 The text of the duration clause is as follows :
This AGREEMENT shall continue in full force and effect until November 13, 1943, and
from year to year thereafter , unless thirty ( 30) day ,3 prior to November 13th of any
year, proposed amendments shall be submitted by either the Company or the Union
The constitution of the International ( Article VI, Section 13) provides that "all mem-
bers of the local union are also members of the International Union and subject to orders,
rulings , and decisions of this International Union and the properly constituted authorities
of the same."
* No reason appears not to assume here, as the former majority was ready to assume in
the Briggs Manufacturing case, "that the contractual provision proscribes representation
by, as well as membership in" the union . 49 N. L. R B. 57.
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and asks the assistance of this Board to accomplish indirectly what
it has agreed not to do directly.
In the Packard case,5 the Board was confronted with the same
issue . The majority held that a similar provision constituted an
invalid restriction upon the right of employees guaranteed by the
Act, to "bargain collectively through representatives of their own
choosing." In a long line of cases s presenting similar issues, the
Board followed the rationale set forth in, the Packard case and directed
elections. To the extent that those decisions are inconsistent with
the conclusions reached herein, they should not govern future rulings
of the Board.7 The fundamental policies of the Act can best, be
effectuated by dismissing the present petition.
In reaching this result on these particular facts, however, the Board
does not depart from the earlier view that rights guaranteed em-
ployees under the Act cannot themselves be bargained away.5 Yet it
remains true that the exercise of the right of given employees to
choose any representative they desire'is never literally unrestricted;
the field of choice is necessarily limited by the number of labor
organizations willing to undertake collective bargaining on their
behalf. These particular employees affiliated voluntarily 9 with a
union which had previously imposed a similar limitation by agreeing
not to make itself available to them for the brief span of 12 months.
The agreement when made was therefore for a reasonably short
period. Although it has twice been automatically renewed, if could
have been (and may yet be) terminated at the end of any contract
year. Although this Board has not regarded plant-protection em-
5 Matter of Packard Motor Car Company, 47 N. L. R . B. 932. This is not to be confused
with the more recent Packard case, 61 N. L . it. B. 4, relating to the bargaining rights of
supervisory employees
6 See Matter of Ford Motor Company, 47 N. L. R. B . 940; Matter of Briggs Manufac-
turing Company, 49 N. L. R. B. 57; Matter of Briggs Indiana Corporation , 49 N. L. R. B.
920; Matter of The Murray Corporation of America, 49 N. L . it. B. 925; Matter of Arvey
Corporation , 50 N L R. B 999; Matter of Federal Motor Truck Company, 54 N. L. it. B.
984; Matter of Great Lakes Steel Corp ., 56 N. L. it. B . 242; Matter of International Har-
vester Company , Farmall Works , 56 N L it. B. 502 ; Matter of Reo Motors , Inc., 61
N. L. R. B 1579
7 Chairman Herzog does not, however , concur in so much of Mr. Reilly 's dissenting opin-
ions in the Federal Motor Truck, Packard, and other cases as hold that , the Union is
"estopped" from pressing such a petition.
8 See National Licorice Company v. N. L. R. B., 309 U. S. 350, aff'g as mod. 104 F. (2d)
655 (C C. A . 2), enf ' g as mod 7 N L. R B. 537 ; J. I. Case Company v. N. L. R B., 321
U S. 332 aff'g as mod. 134 F. (2d) 70 (C. C. A. 7), enf'g as mod. 42 N L. it . B 85, N. L.
R. B. v. Newark Morning Ledger Company, 120 F. (2d) 262 , 266 (on rehearing ), enf'g as
mod 21 N L. R. B . 988, cert. den . 314 U S. 693; McQuay -Norris Mfg . Co. v. N . L. R. B,
116 F. ( 2d) 748 ( C. C. A. 7), enf 'g 21 N. L. it. B. 709 , cert den 313 U S 565. Semble:
concurring opinion of Judge Hand in N. L R B. v Mcdo Photo Supply Corporation, 135 F.
( 2d) 279 ( C. C. A. 2 ), aff'd 321 U. S . 678, enf 'g 43 N . L. it. B 989.
9 To say, as the dissenting opinion does , that these employees were not responsible for
the original contractual provision, is to ignore the hard fact that they later elected to join
the labor organization that had inserted the provision in a collective agreement . It must
be assumed that the Union did not hide its presence from them.
BRIGGS INDIANA CORPORATION 1273
ployees as outside the orbit of the Act,10 the fact remains that the
agreement merely committed the Union to refrain from organizing,
not ordinary employees, but groups whose status has been the sub-
ject of doubt and of protracted litigation. Moreover, the agreement
was not in the nature of a yellow-dog contract, extracted from a help-
less individual employee, but was made as part of a collective bar-
gain between presumptive equals.
The question here is not whether we should enforce the agreement
so as to deny an individual Briggs plant-protection employee the
right to select a UAW affiliate as his representative or so as to deny
the protection of Section 8 (3) of the Act to such an employee. It is
merely whether it is the proper function of the National Labor
Relations Board to expend its energies and public funds to confirm
a result which the Union agreed it would refrain, temporarily, from
seeking to achieve. It is the Union, not an employee, that is the
moving party before the Board; it is the Union that seeks an elec-
tion and the imprimatur of a Board certification. If, as the dis-
senting opinion suggests, "the contract should never have been made
in the first place," the International may have good reason to regret
the original commitment or to decline hereafter to renew it. But this
Board should not take affirmative action to facilitate its avoidance.
That is not the business of the Government of the United States.
ORDER
Upon the basis of the above findings of fact, and the entire record
in the case, the National Labor Relations Board hereby orders that
the petition for investigation and certification of representatives of
employees of Briggs Indiana Corporation, Evansville, Indiana, filed
by International Union, United Automobile, Aircraft & Agricultural
Implement Workers of America, CIO, Local 473, be, and it hereby
is, dismissed, without prejudice to its renewal under circumstances
not inconsistent with the opinion herein.
MR. GERARD D. REILLY, concurring :
I concur in the foregoing order for reasons set forth in my dissent-
ing opinion in Federal Motor Truck (54 N. L. R. B. 984), and related
cases.
10 Had the Chairman been a Member of the Board when the earlier cases concerning
plant-protection employees were decided , he would have joined in his colleagues ' conclusion
that they could constitute a separate appropriate bargaining unit. See, for example,
Matter of Jones and Laughlin Steel Corporation, Otis Works, 49 N. L. R. B. 390. See also
Mutter of Armour and Company, Case No 17-C-1224, decided September 27, 1945.
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ,
MR. Joru M. Hous4rON, dissenting :
The issue presented by the filing of a petition for certification as
representative of plant-protection employees by a labor organization
whose co-affiliate, as representative of production and maintenance
employees of the same employer, had entered into a contract contain-
ing the provision that it "will not accept for membership direct
representatives of the management, such . . . plant-protection em-
ployees," was first before this Board in the Packard case,'1 in which a
majority of the Board, in its decision, said :
The statute explicitly declares that it is the policy of the United
States to mitigate and eliminate obstructions to the free flow of
commerce "by encouraging the practice and procedure of collective
bargaining and by protecting the exercise by workers of full free-
dom of association, self-organization, and designation of repre-
sentatives of their own choosing." Section 7 of the Act states that
employees "shall have the right . . . to bargain collectively
through representatives of their own choosing." In the face of
such clear expression *of public policy and the rights of employees
it would seem obvious that any agreement between an employer
and a labor organization restricting employees in the selection of
a bargaining agent and entered into when that organization was
not authorized to act as the representative of the employees whose
rights are affected, is plainly in derogation of the rights accorded
employees by the Act and cannot be given effect.12
The decision in the foregoing case has since been followed in a long
line of cases in which, beginning with the case of Briggs Manufactur-
ing Company,13 I have participated. I am not persuaded that the
Board should now abandon its holding in these cases, for I fail to per-
ceive the statutory policy which is sought to be effectuated through dis-
missal of the present petition. The Act is premised upon the right of
employees to bargain collectively through representatives of their own
choosing. The protection of that right is its fundamental policy. The
Act contains no provision which permits the Board to give effect to
an agreement so patently in derogation of the right of employees'14
to freedom of choice in their selection of a representative, or which jus-
11 Matter of Packard Motor Car Company, 47 N L R. B 932
12 The opinion assumed , for purposes of the decision , that the petitioning local union
was bound by the contractual provision equally with the International and the local union
signatory to the contract.
11 Matter of Briggs Manufacturing Company, 49 N. V. R B 57.
14 The Board has never heretofore indicated that it regards the status of plant -protection
employees to be different from that of other employees with respect to the nature of the
protection to be accorded their rights under the Act, and the opinion of the Board ex-
pressly recognizes that these employees are not "outside the orbit of the Act."
$RIGGS INDIANA CORPORATION 1275
tifies the Board in disregarding the statutory guarantee of that right's
protection.
While recognizing that dismissal of the representation petition
may be procedurally distinguishable from direct enforcement of the
contractural provision here in dispute, I can nevertheless imagine
no sanction which should more effectively result in enforcing this
restriction upon the freedom of plant-protection employees to select
an organization to represent them, than the withholding of the proc-
esses provided to implement their right to designate the representa-
tive of their choice. Nor is it enough to say that the contract is for a
short term and may not be renewed. The basic fact which, in my
opinion, is overlooked is that the contract should never have been
made in the first place. The Board has repeatedly held that moni-
torial plant-protection employees may be represented by the same
union as that which represents production and maintenance em-
ployees, although it has required that such representation be in a
separate unit 15 And it has found that employer interference with
the right of plant-protection employees to be represented by such a
union is violative of the Act 16 It would seem, therefore, that a
demand that a labor organization include within an agreement a
provision such as that here in issue is also in contravention of the
Act 17 Yet the instant decision would not only permit the employer
to make such demands but would give effect to the resulting con-
tractual provision where the demands are granted.
It would be well to consider the situation which may exist when
and if the International decides not to approve continuation of such
clauses. The employer may nevertheless demand their continua-
tion. The International will then be faced with the choice between
sacrificing the organizational rights of one group of employees in
order to secure economic advancement for another, and going on
strike. Either choice would frustrate the purposes of the Act, and
the latter possibility is one so serious and substantial that it should'
not be lightly ignored.
The Board should consider not only the dilemma which may face
the International but that which faces the affected employees.
Although it is true that the contract was drawn for the initial term
of but 1 year, it has already been twice renewed, and it appears that
ss See Matter of Bethlehem Steel Company, 61 N. L. R. B. 892 ; Matter of International
Harvester Company, Milwaukee Works, 61 N. L R B. 912; Matter of Budd Wheel Company,
52 N L R B 666, Matter of Dravo Corporation, 52 N L R B. 322, Matter of Chrysler
Corporation , 44 N. L. R B 881
16 See Matter of Tampa Shipbuilding Company, 50 N. L. R. B. 177, 186-187.
17 See N. L..R. B. V. Pilling i Son, 119 F. ( 2d) 32, 38 (C. C. A. 3) ; N. L. R. B. v. Louis-
ville Refining Company, 102 F. ( 2d) 678, 680-681'(C . C. A. 6) ; Hartsell Mills Company v.
N. L. it. B., 111 F . (2d) 291, 292 (C. C. A. 4).
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employees whose rights are in issue are themselves without means
to forestall its future extension for similar successive periods or to
prevent embodiment of the contractual provision here involved in
such new agreement or agreements as may be negotiated. I cannot
accept the statement that it is not the employees themselves, but a
labor organization on their behalf, which acts to invoke the Board's
investigative machinery, and I do not agree with the assertion that
the concededly restrictive effect of this agreement is merely cumu-
lative to the limitation naturally imposed upon employees by the nar-
row field of labor organizations which might be ready to serve as their
representative, for to dismiss the petition in the instant proceeding is
to withhold from employees in no way responsible for the contractual
provision, the Board's processes for determination of their selection
of a statutory representative.
Furthermore, I can see no distinction in principle between the pres-
ent case and those -cases in which a petitioning union had entered into
a consent election agreement containing a provision that in event such
union should lose in the election it would refrain from seeking recog-
nition for the period of a year. In such cases the Board has held that
the provision goes counter to the policy of the Act and has refused
to give effect to it 18
Inasmuch as I believe that the stated policies of the Act will best
be effectuated by the direction of an election upon the petition now
before the Board, I am of the opinion that the Board should not be
hesitant to expend the funds necessary to conduct such election,
since the expenditure would be in furtherance of the purposes for
which such funds have been appropriated.
Is Matter of Automatic Products Company, 40 N. L . R. B. 941; Matter of Southport
Petroleum Company, 39 N. L. R. B. 257.