C. M. Tool & Die Co.

National Labor Relations Board - Board Decisions

Aug 13, 1954

109 N.L.R.B. 828 (N.L.R.B. 1954)

828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The labor organizations involved claim to represent 'employees
of the Employer.
3. The Employer and the Intervenor, Federal Labor Union, Local
21314, AFL, contend that their current contract, which was entered
into on May 1, 1952, and by its terms is effective until April 30, 1955,
constitutes a bar to the petition filed herein on March 26, 1954. How-
ever, we find that this 3-year contract is not a bar to this proceeding.'
We find, therefore, that a question affecting commerce exists concern-
ing the representation of employees of the Employer within the mean-
ing of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.2
4. The following employees of the Employer constitute a unit ap-
propriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act :
All employees at the Employer's New Cassell, Long Island, New
York, plant, excluding office clerical employees, guards, professional
employees, and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
MEMBERS PETERSON and BEESON took no part in the consideration of
the above Decision and Direction of Election.
1 We reject as plainly without merit the Intervenor 's contention to the effect that the
contract should be viewed as a 1-year contract with a 60-day automatic renewal clause
because it provides that "Either party . . . may, sixty . . . days prior to April 30, 1953
and April 30, 1954 have the right to take up the question of revision of any of the terms
and conditions of this agreement."
Member Murdock finds the contract to be no bar because it has been in effect for over 2
years and it has not been established that a substantial part of the coil manufacturing in-
dustry, assuming that to be the industry involved in this ease , is covered by contracts of
3 years' duration . General Motors Corporation , Detroit Transmission Division, 102 NLRB
1140, Republw Aviation Corp., 109 NLRB 569 Chairman Farmer and Member Rodgers
agree that the contract is not a bar. However, they base their finding solely upon the fact
that the contract has been in effect for more than 2 years. See their dissent in Republic
Aviation Corp., supra. -
2 In view of our disposition herein, we find it unnecessary to pass upon the schism issue
raised by the Petitioner.
CHRIST MILLER AND ANN MILLER , CO-PARTNERS , D/B/A C . M. TOOL &
DIE Co.' and ANTHONY W. KLIEBHAN , PETITIONER and TOOL & DIE
MAKERS LODGE No . 78, DISTRICT 10, INTERNATIONAL ASSOCIATION OF
MACHINISTS , AFL. Case No. 13-RD-203 . August 13, 1954
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Joseph Cohen, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
1 The name appears as amended at the hearing.
109 NLRB No. 123.
C. M. TOOL & DIE CO. 829
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The Petitioner, an employee of the Employer, asserts that the
Union is no longer the bargaining representative, as defined in Section
9 (a) of the Act, of the employees designated in the petition. The
Union is the certified and currently recognized representative of the
Employer's employees in a unit which includes the employees desig-
nated in the petition.
3. The Union herein was certified on February 23, 1951, as the bar-
gaining representative for a unit of production and maintenance em-
ployees after a Board election held pursuant to the terms or an agree-
ment for consent election. Thereafter, on October 21, 1953, the Em-
ployer and the Union entered into a "Wage Agreement" covering
all employees in the certified unit. This agreement provides for
minimum and hiring rates for specified classifications, a method for
computing apprentice rates, and for general wage increases applicable
to all employees. The agreement further provides that it shall remain
in force and effect until September 1, 1954.
On December 30, 1953, the instant petition was filed to decertify the
Union as the representative of the employees in the above unit. The
Union moves to dismiss the petition on the ground that its "Wage
Agreement" is a bar to this proceeding. The Petitioner and Employ-
er contend on the other hand that the agreement does not embody
sufficient terms and conditions of employment to achieve stability in
labor relations and therefore should not bar this proceeding.
Without passing upon the issue thus raised by the parties, we find
that as the agreement in question is soon to expire it does not bar a
present determination of representatives. Accordingly, we deny the
Union's motion to dismiss the petition. We find that a question affect-
ing commerce exists concerning the representation of employees of
the Employer within the meaning of Section 9 (c) (1) and Section 2
(6) and (7) of the Act.
4. We find that all production and maintenance employees at the
Employer's Milwaukee, Wisconsin, plant, excluding office clerical em-
ployees, guards, professional employees, and supervisors as defined
in the Act constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
[Text of Direction of Election omitted from publication.]
MEMBER RODGERS , concurring :
I agree with the maj ority that the contract is not a bar because it will
expire within approximately 1 month. I would find, in addition, that
the contract is no bar because it is a mere wage agreement which the
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board has in the past consistently ruled out as a bar in circumstances
precisely such as those present here.
This Board has regularly been confronted with the problem of
deciding when to hold a representation•election• in the face of a valid
existing collective-bargaining contract which is asserted as a bar. In
resolving this problem, the Board has had to balance the two prime
policies of the Act : Stability of industrial relations, and the interest
of employees to select and change their representative. To the right
of employees to select and change their representative, Congress in
1947 added the right of employees to petition the Board to decertify a
representative which no longer is their choice. The Board has since
applied with equal effect its usual contract-bar principles to such
proceedings? Affirmation was recently given by the Board to the pro-
tection of employee interests by appropriate emphasis on "the gain
in industrial democracy and the freedom of employees to choose their
own unions and their own form of collective bargaining" in craft
severance situations .3 The same principles of industrial democracy
and freedom of choice are, of course, present where a possible change
of representative is involved, or, as here, where the right to an election
involving a possible decertification is in issue.
If employees are to be deprived of the basic right to choose, change,
or to be relieved of a representative, the contract asserted as a bar
to such action should, at the very least, be one that establishes a real,
and not a fancied, stability of industrial relations. Such contract
should sufficiently embrace the terms and conditions of employment 4
which lend substance to the collective-bargaining process, and not leave
such terms and conditions to conjecture, uncertainty, and possible
day-to-day bickering as to what they really are.
The contract in the case before us is a wage agreement. It contains
no other terms and conditions of employment, either directly or by
reference. The Board has consistently held that a mere wage agree-
ment does not achieve such stability in labor relations that it should
operate as a bar to a petition.5 Moreover, the very facts of the present
2 Snow & Nealley Company, 76 NLRB 390.
8 American Potash & Chemical Corporation, 107 NLRB 1418.
* Collective -bargaining agreements customarily and characteristically contain provisions
dealing with hours of employment, seniority , overtime, grievances , arbitration , vacations,
holidays , other fringe benefits, and many other terms and conditions of employment. In
a recent Board decision (Billboard Publishing Company, 108 NLRB 182 ) the Board found
a contract to be a bar "even though it leave the wage provisions concerning this category
for future negotiations" because the contract in question covered vacations , holidays, over-
time shift differentials , and grievance procedure , thus in the Board's opinion being an
agreement which "substantially stabilizes labor relations between the parties." See also
Radio Corporation of America, RCA Davison, 107 NLRB 993 ; Spartan Aircraft Company,
98 NLRB 75.
5 The Laclede Gas Light Company, 76 NLRB 199 ; Federal Shipbuilding and Drydock
Company, 76 NLRB 413; Associated Transport, Inc., 93 NLRB 1564; Groveton Papers
Company, Inc , 96 NLRB 1369; A. O. Smith Corporation (Kankakee Works ), 78 NLRB
1050; Swift & Company, 82 NLRB 994; see also Thirteenth Annual Report , page 29; Six-
teenth Annual Report, page 64 ; Seventeenth Annual Report, page 38.
C. M. TOOL & DIE CO. 831
case clearly show the patent instability of labor relations that exist
at the plant in question. Although there is no evidence as to the cir-
cumstances surrounding the execution of the agreement, the Union
asserts in its brief that the parties had concluded this agreement fol-
lowing a strike which it called to secure wage adjustments; the peti-
tioning employee states in his brief that the agreement "offers the
employees little protection and does not encompass the substantive
provisions which customarily make up collective bargaining agree-
ments"; and the Employer joins the Petitioner in contending that
the agreement does not embody sufficient substantive terms and con-
ditions of employment to achieve stability in labor relations. In the
light of these circumstances, which graphically illustrate the validity
of the contract-bar rule in question, I would find that the agreement
is insufficient to stabilize labor relations at the Employer's plant,
and therefore, no bar to a present determination of representatives.
In taking this position, I do so not because of a theoretical argu-
ment or an abstract principle, as the Chairman seems to suggest in his
dissent, but because I am convinced that the Board should follow a
consistent policy with respect to contract bar. To vary Board policy
from case to case-a necessary consequence of the rationale of the
dissent-is to place the parties in the anomalous position of not
knowing what the rules are and to create gratuitous confusion where
none should exist. I think such a result should be avoided at all costs.
CHAIRMAN FARMER, dissenting:
I would dismiss this petition.
The principal issue raised by the parties turns upon the adequacy
of the Union's contract in effect at the time the petition was filed as a
bar to an election. The Employer and the Petitioner contend that
the contract-because it does not embody all of the conventional sub-
stantive provisions of collective-bargaining agreements-could not
sufficiently stabilize labor relations at this plant to warrant applica-
tion of the Board's long-established contract-bar rules. I find no
merit in this contention.
Since its certification on February 23, 1951, the Union has been the
bargaining representative of the Employer's production and main-
tenance employees. Before October 21,1953, the Union called a strike
to secure certain wage adjustments. On that date the strike was set-
tled, and the parties concluded a written agreement covering all em-
ployees in the certified unit. This agreement provides for minimum
and hiring rates for specified classifications, a method for computing
apprentice rates, and immediate and future general wage increases
applicable to all employees. It further provides that it shall remain in
force and effect until September 1, 1954.
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On December 30, 1953, the instant petition was filed to decertify
the Union as the representative of the employees in the above unit.
It is clear that the agreement embodies the terms and conditions
of employment concerning which the parties were in dispute and
which caused the strike. Plainly, the parties viewed the executed
agreement as sufficient to stabilize their bargaining relationship for a
definite term. I believe that where, as here, an agreement is reached
between an employer and a labor organization on such fundamental
platters as hiring rates, immediate and future general wage increases,
and a method for computing apprentice rates, and contains a fixed
term of reasonable duration, such an agreement sufficiently stabilizes
labor relations for the contract to operate as a bar under established
contract-bar principles. I would, of course, apply the same rule to a
petition filed by a rival union or by the employer.
Member Rodgers, in his concurrence, characterizes this contract as
a mere "wage agreement" and asserts that it did not stabilize labor
relations. The fact is that this contract was negotiated between the
employer and the designated representative of the employees and
reduced to writing and that it effectively restored for a definite term
the peaceful labor situation which had been disrupted by a strike.
The parties are satisfied with it, and it was more than 2 months later
that the dissident group filed the decertification petition. While the
agreement does not spell out some of the substantive terms customar-
ily found in labor agreements, it is a binding contract for a definite
term and it did, in fact, restore peaceful labor relations.
In view of this undisputed fact, I am not persuaded by theoretical
arguments. I do not think it is the province of this Board to test a
contract by abstract principles or to attempt to impose upon con-
tracting parties the Board's concept of the ideal framework of a
labor agreement. There is no suggestion that this contract contra-
vened public policy, that it contained any illegal terms, or that it was
not entered into in good faith and as the result of genuine, arm's
length, collective bargaining. I see no reason why it should not be
respected as a bar to this petition.
The majority (except for Member Rodgers) avoids this issue by
directing an election to coincide with the occurrence of the contract's
termination date. While in other circumstances I agree with the
Board's policy of directing elections when an existing contract has
only a short period left to run, I believe that, because this contract
issue was raised as far back as December 1953, the contract, which
is still in effect, should be held a bar, with leave to any of the parties
to file a petition at an appropriate time.