Coos Bay Lumber Co.

National Labor Relations Board - Board Decisions

Oct 26, 1939

16 N.L.R.B. 476 (N.L.R.B. 1939)

In the.Matter of Coos BAY LUMBER COMPANY and LUMBER AND. SAW-
MILL WORKERS UNION LOCAL No. 2573
Case No. R-1344
Election Ordered: majority orders a run -off election following the previously
established policy of the Board stating the reasons for ' such practice and
discussing the contentions urged in the dissenting opinion against the run-off
election procedure.
SECOND DIRECTION OF ELECTION:
October 26, 1939
On •August -30, 1939; the National Labor Relations Board, herein
called the Board, issued a Decision and Direction, of Election in. the
above-entitled proceeding.' The Direction of Election provided that
an election by secret ballot be conducted within twenty (20) days
from the date of the Direction among all the employees of'-Coos Bay
Lumber Company, herein called the Company, engaged in occupa-
tions within its manufacturing departments listed in Schedule A,
annexed thereto, exclusive of executives, supervisory foremen, and
clerical force, who were employed by the Company as of March 15,
1939, including employees who did not work at such time because
they were ill or on vacation, and also any employees who had been
employed by the Company between March 15, 1939, and the date of
the Direction, but excluding employees who had since quit or been
discharged for cause, to determine whether they desire to be repre-
sented by Lumber and Sawmill Workers Union, Local No. 2573,
affiliated with the United Brotherhood of Carpenters and Joiners
of America, which in turn is affiliated with the American Federation
of Labor, herein called the United, or by Lumber and Sawmill Work-
ers, Local No. 116, affiliated with the International Woodworkers of
America, which in turn is affiliated with the Congress of Industrial
Organizations, herein called the I. W. A., for the purposes of collective
bargaining, or by neither.
Pursuant to the Direction, an election by secret ballot was held on
September 15, 1939, .it Marshfield, Oregon, under the direction and
supervision of the Regional Director for the Nineteenth Region,
114 N. L . R. B. 1206.
16 N. L. R. B., No. 50.
476
COOS BAY LUMBER COMPANY 477
Seattle, Washington. On September 19, 1939, the said Regional
Director, acting pursuant to Article III, Section 9, of National Labor
Relations Board Rules and Regulations-Series 2, issued and duly
served upon the parties an Election Report on the election.
As to the balloting and its results, the Regional Director reported-
as follows :
Total No . Eligible Voters____________________________________ 456
Total No. of Valid Ballots Cast------- ----------------------- 419
Total No. of Votes in Favor of Lumber and Sawmill Workers
Union, Local No. 2573, affiliated with the United Brother-
hood of Carpenters and Joiners of America , AFL ----------- 195
Total No. of Votes in Favor of Local No . 116, International
Woodworkers of America , afflliated with the CIO ----- ------ 188
Total No. of Votes in Favor of Neither_________ ______________ 36
Total No. of Blank Ballots______ ____________________________ . 0
Total No. of Void Ballots___________________________________ 0
Total No. of Challenged Votes_______________________________ 1
Total No. of Eligible Voters Not Voting ______________________ 36
The Regional Director recommended in. the Election Report that
the petition in the proceeding be dismissed since neither union re-
ceived a majority of the valid votes cast. Thereafter, the United,
which had received the greater number of votes, filed exceptions to
this recommendation, dated September. 22, 1939, including a request
for a run-off election to determine whether or not the employees
desired to be represented by it. No other exceptions or objections
were made. On October 4, 1939, the Regional Director filed a Report
on Objections Raised to Election Report, recommending merely that
the exceptions be referred to the Board for action.
In accordance with our usual policy we shall direct a run-off elec-
tion to determine whether or not the employees in the unit desire to
be represented by the United. In view of the objections raised by
the dissenting opinion to the holding of run-off elections, we shall
first set forth in some detail the considerations which have seemed to
us controlling in the determination of these issues.
Section 9 (c) provides that in any proceeding by the Board for
the certification of representatives, the Board "may take a secret
ballot of employees, or utilize any other suitable method to ascertain
such representatives." The Act does not prescribe what particular
form of ballot shall be used in Board elections; nor does it attempt
to provide for any of the other details of the method used for ascer-
taining representatives. In establishing election procedure the first
problem which arises is whether or not opportunity should be afforded
on the ballot for registering a voice against the particular labor or-
ganization or organizations which appear on the ballot. It has been
the policy of the Board to allow for such an expression of opinion
by providing a place upon-the ballot in which an employee may vote
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
against representation by any of the organizations participating in
the election. Thus, in elections where only one labor organization
is involved, the ballot contains a place in which to vote for or
against such organization. In an election where two or more labor
'organizations are involved the ballot contains a place in which- an
.employee may vote for neither or none of the enumerated candidates.
The reasons for the adoption of this form of ballot have been set
forth in Matter of Interlake Iron Corporation ,2 and, need not be
repeated here. , `
The practice of affording an opportunity to vote against the labor
organizations appearing upon the ballot gives rise to a second,prob-
lem.. In elections where two labor organizations are involved-it may,
and rather frequently does, happen that the votes for neither
organization, while less than a majority, are sufficient to deprive
either organization of a majority. Such was the outcome in the
instant case- where the United.received 195 votes, the I. W. A. 188
votes, and 36 votes were cast for neither. If the petition for cer-
tification is thereupon dismissed, as the dissenting opinion urges,
the result may be that a small minority of employees who desire no
representation are able to.deprive the greater majority of employees
of all opportunity for collective bargaining.
The same issue arises where three or more labor organizations
appear on the ballot and one obtains a plurality but not a majority.3
It may well be that a majority of the employees desire collective rep-
resentation and can agree upon a single organization. To dismiss
the petition for certification of representatives, under such circum-
stances, is to frustrate collectiVe bargaining despite the wishes of a
majority of the employees.
In our opinion the most satisfactory solution of this problem is
the device of a run-off election. Such an election eliminates the pos-
sibility that an insignificant minority of employees, which happens
to hold the balance between two or more competing organizations, can
indefinitely forestall the selection of a collective bargaining agent.
If a majority of the employees desire collective bargaining, and can
unite upon a common representative, we see no reason to deny them
the right to select such a representative. On the contrary, the hold-
ing of a run-off election will, in our opinion, most nearly effectuate
the express policy of the Act of "eizcoura.ging the practice and pro-
cedure of collective bargaining."
The dissenting opinion urges that the Board should not establish
a procedure of run-off elections without express authority from
2 Matter of Interlake Iron Corporation and Amalgamated Association of Iron, Steel and
Tin Workers of North America, Local 1677, 4 N. L. R. B. 55.
See Matter of Aluminum Company of America and Aluminum Employees Association,
12 N. L. R. B. 237.
COOS BAY LUMVER COMPANY 479
Congress. As - stated above, Congress in passing the Act made no
attempt to embody in the statute any of the forms or details of the
"secret ballot" or "other suitable method" of determining repre-
sentatives. It was clearly the intention of Congress to leave such
matters to the discretion of the agency charged with the adminis-
tration of the Act. The device of a run-off election is not an un-
common one; nor does it involve a fundamental issue of policy in
labor relations. And, while there have been differences of opinion
regarding the form of the ballot in run-off elections, the propriety
of determining, collective bargaining representatives through the run-
off procedure has never, so far as we are aware, been seriously
questioned.4
. It is said that the run-off election "is a form of preferential voting
to . create a second-choice majority where the first choice resulted
in no majority." We do not see the significance of the fact that
a majority resulting. from a run-off election can, in one sense, be
characterized as a "second-choice' majority." The alternative to bar-
gain through such a "second-choice majority" is to permit a small
minority, in this case 36 votes, to thwart all collective bargaining
despite the wish of a majority for that form of-dealing with the
employer. Again, the objection that a run-off election results in
an "artificial majority" seems to us without substance. There is no
magic about a run-off election by which there is "created" a majority
where none in fact exists. On the contrary, the employees have
full freedom of choice and any majority which results is plainly a
genuine majority.
Again, it is argued that "it is not for the Board to say that [em-
ployees] should vote for a competing organization rather than wait
until they can win a few more adherents [for their own union] to
make a majority." But nothing in the Board's practice requires
employees to do any such thing: On the contrary, the run-off pro-
cedure, as utilized by the Board, leaves the employees just as' free
to vote against the competing organization as to vote for it.
Finally, objection is 'made that the Board's practice of holding a
run-off election only upon request'of the Union obtaining the higher
number of votes is arbitrary. However, if the labor organization
entitled to appear on the ballot in a run-off election does not wish
to participate in such an election, it is difficult to see wherein it
4 See the decision of the New York State Labor Relations Board in Matter of Hotel
St. George Corporation and Hotel & Residence Club Workers Industrial Union of Brooklyn,
Local 28, Decision No. 055-B, October 10, 1939; International Brotherhood of Electrical
Workers et al. V. National Labor Relations Board, decided June 28, 1939, by the Circuit
Court of Appeals for the Sixth Circuit ; Run-offs in National Labor Relations Board Elec-
tions, 8 International Juridical Association Bulletin, No. 3, p. 25 (Sept. 1939) ; testimony
of Joseph A. Padway, Counsel for the American Federation of Labor, Hearings before the
Senate Committee on Education and Labor on Proposed Amendments to the National Labor
Relations Act, 70th Cong., 1st Sess., pp. 762 et seg.
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would effectuate the policies of the Act to compel it to do so. An
election under such circumstances would almost certainly not result
in the choice of a bargaining representative and would be futile.
For all of the foregoing reasons we are impelled to adhere to the
Board's past practice in conducting run-off elections.
SECOND DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor
Relations Act, 49 Stat. 449, and pursuant to Article III, Sections
8 and 9, of National Labor Relations Board Rules and Regulations-
Series 2, it is hereby
DIRECTED that, as part of the investigation authorized by the Board
to determine representatives for the purposes of collective bargain-
ing with Coos Bay Lumber Company, Marshfield, Oregon , an elec-
tion by secret ballot shall be conducted as early as possible but not
later than thirty (30) days from the date of this Second Direction
of Election, under the direction and supervision of the Regional
Director for the Nineteenth Region, acting in this matter as agent
for the National Labor Relations Board, and subject to Article III,
Section 9, of said Rules and Regulations, among all the employees
of Coos Bay Lumber Company, who were eligible to vote in the
election of September 15, 1939, excluding those who have since quit
or been discharged for cause, to determine whether or not they
desire to be represented by Lumber and Sawmill Workers Union,
Local No. 2573, affiliated with the United Brotherhood of Carpen-
ters and Joiners of America, which in turn is affiliated with the
American Federation of Labor, for the purposes of collective
bargaining.
MR. WILLIAM - 1M. LEISERSON , dissenting:
I •cannot agree with the ruling of the majority directing a
run-off election. A secret ballot has clearly shown that neither of
the contesting organizations has been chosen by a majority of the
employees. The allegiance of the employees is almost equally
divided, 195 having designated one organization and 188 the other.
It seems to me stretching the discretion of the Board beyond proper
bounds to order now another election in which the choice of .the
employees is to be limited to the one organization which received
the 195 votes.and to deny the employees an opportunity to vote for
the other organization which had only 7 votes less.
The so-called run-off election here ordered is a form of prefer-
ential voting to create a second-choice majority where the first choice
resulted in no majority. Section 9 (c) of the Act authorizes the
Board to certify the representatives that have been designated or
selected by the majority of the employees. in a unit appropriate for
COOS BAY LUMBER COMPANY 481
collective bargaining . When an election results in no majority, it
is plain that the Board may not issue any certification , and accord-
ingly the Board dismisses petitions for certificates in many cases
where no representative receives a majority vote. It should do so
in all cases and should not inaugurate a controversial system of
second-choice voting without express ' authority from Congress.
Whenever there are more than two candidates on a ballot, there
is a possibility that the election will result in no majority.b Con-
gress might have provided that in all such cases a plurality shall
prevail , but it saw fit not to authorize certification on a plurality
vote. .Congress might also have provided that whenever there are
more than two candidates the voters shall indicate their- first and
second choices and that a majority should be calculated on the basis
of the second -choice votes . If this were done no run-off election
would be necessary . But Congress did not see fit to adopt this
device. The so-called run-off election is merely an alternative
method of indicating second choices . If Congress did not authorize
the first method , I cannot see how it can be assumed that the alterna-
tive method is justified.
The so-called run-off election itself offers various methods of
arriving at a majority . A most common form of run-off ballot
gives the -voters a choice between the two highest candidates in the
first election . Instead of using this form, the Board in the present
case places the name of only one organization on the ballot and
requires the employees to vote for or against this representative.
There. .are -,als.o other methods of balloting in run-off elections which
people consider preferable in indicating second choices . Whether
elections should be conducted on the basis of simple majorities,
second choices, or other forms of preferential voting are political
questions on which the people of the country have strong differences
of opinion. I think the Board should refrain from adopting any
of the systems of second-choice voting to create an artificial majority
where the first ; choice results in no majority.
The majority opinion argues that "if a majority of the employees
desire . collective bargaining , and can 'unite upon a common repre-
sentative , we see no reason to deny them the right to select such a
representative." . The Board does not know , however, that they.
desire to . unite upon such a representative. It creates a condition
under which they must vote for or against one representative, and
the effect of this is to force those who are opposed to this repre-
sentative, but want another, to. vote against any collective bargain-
5 To a large extent the elections which produce inconclusive results are caused by the
policy of addinn on every ballot a p'ace for voting against any collective bargaining rep-
resentative . The question whether this should be done or not is not involved in the
present ease.
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing. I think that this kind of a run-off election thwarts rather than
effectuates the collective bargaining policy of the Act.
The essential dispute that the election is designed to settle is
between the two labor organizations, one of which received 19,5
votes and the other 188. To say that they can unite upon a common
representative is the same as saying that the members of one organi-
zation should transfer their allegiance to the other. Employees have
many and strong reasons for remaining loyal to their unions even
though they do not receive a majority vote in an election. It is not
for the Board to say that they should vote for a competing organi-
zation rather than wait until they can win a few more adherents to
make a majority.
We are told also that if the petition is dismissed " a small minority
of employees who desire no representation are able to deprive the
greater majority of employees of all opportunity for collectives
-bargaining." But this is exactly what the run-off election , accom=
plishes when the employees vote against all collective bargaining
rather than for the one representative on the ballot. Approximately
half the run-off elections thus far held by the Board have brought
this result. Further, the Board does not order a second election in
all cases where the first results in a plurality. The actual practice
is to dismiss all such cases except where the request is made for a
run-off election by the organization which received the highest
number of votes.6 It seems to me arbitrary to order a run-off election
in a case like the present one at the request of the organization
which had seven more votes than the other, and not to order such
an election if a request is not made. Collective bargaining is pre-
vented in all cases where elections result in no majority. If Con-
gress intended that no representative should be certified in some of
these cases; I cannot understand how it can be assumed that a
portion of the cases should be otherwise treated. In any case, it
does not seem to me to be within the province of the Board to seek
,second or third choice majorities by one of the questionable methods
of preferential voting.
The petition for certification of representatives should be dis-
missed without prejudice to the right of either organization to file
a new petition whenever it can make a prima facie showing that it
is the designated representative of a majority of the employees.
9 See Matter of Interlake Iron Corporation and Amalgamated Association of Iron, Steel
and Tin Workers of North America, Local 1657, 4 N. L. R. B. 55, 62: Matter of Waggoner
Refining Company , Inc. and International Association of Oil Field, Gas Well and Refinery
Workers of America, 8 N. L. R. B. 789.