Curtiss-Wright Corp.

National Labor Relations Board - Board Decisions

Aug 29, 1942

43 N.L.R.B. 795 (N.L.R.B. 1942)

In the Matter Of CURTISS-WRIGHT CORPORATION and UNITED AUTOMO-
BILE, AIRCRAFT.AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA,
C. I. O. LOCAL 753.
In the Matter of CURTISS-WRIGHT CORPORATION and ASSOCIATED WELD-
ERS OF WESTERN NEW, YORK, INC.
In the Matter Of CURTISS-WRIGHT CORPORATION and AIRCRAFT LODGE
#585, INTERNATIONAL ASSOCIATION OF MACHINISTS, AFFILIATED WITH
THE AMERICAN FEDERATION OF LABOR
Cases Nos. R-3842, R 3843, and R-3844, respectively
SUPPLEMENTAL DECISION
AND
CERTIFICATION OF REPRESENTATIVES
August 29, 1942
On June 26, 1942, the National Labor Relations Board, herein called
the Board, issued a Decision and Direction of Elections in the above-
entitled proceedings.' Pursuant to the Direction of Elections, elec-
tions by secret ballot were conducted on July 45, 1942, under the
direction and supervision of the Regional Director for the Third
Region (Buffalo, New York): On July 16, 1942, the Regional Di-
rector, acting pursuant to Article III, Section 9, of National Labor
Relations Board Rules and Regulations-Series 2, as amended, issued
and duly served upon the parties an Election Report.
As to the balloting and' its results the Regional Director reported
as follows :
Welders, welders' apprentices, and employees who join or fuse metal
by heat
Total on eligibility list_____________________________________ 276
Total ballots cast_________________________________________ 262
Total ballots challenged___________________________________ 0
Total blank ballots________________________________________ 0
Total void ballots_______________________________________ _ 0
Total valid votes counted__________________________________ 262
141 N. L. R. B 1367.
43 N. L It. B., No. 131.
795
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Votes cast for Aircraft Lodge #585, International Associa-
tion of Machinists , affiliated with the American Federation
of Labor --------------------------------------I--------- 13
Votes cast for United Automobile , Aircraft and Agricultural
Implement Workers of America, C . I. 0 Local 753-------- 20
Votes cast for Associated Welders of Western New York,
Inc ---------------------------------------------------- 229
Votes cast for none---------------------------------------- 0
Remaining production and maintenance employees
Total on eligibility list---------------------------------- - 20, 145
Total' ballots cast---------------------------------------- 18,174
Total ballots challenged ---------------------------------- 34
Total blank ballots -------------------------------------- 24
Total void ballots----------------- ---------------'-------- 31
Total valid votes counted--------------------------------- 18,085
Votes cast for Aircraft Lodge #585, International Associa-
tion of Machinists, affiliated with the American Federation
of Labor ---------------------------------------------- 0,699
Votes cast for United Automobile, Aircraft and Agricultural
Implement Workers of America, C. I. 0. Local 753-------- 7, 450
Votes cast for neither------------------------------------ 936
-
Thereafter, United Automobile, Aircraft and Agricultural Imple-
ment:Workers of America, C. I. O. Local 753, herein called the C. I. 0.,
filed objections to the Election Report. The basis of these objections is
the contention' that Aircraft Lodge #585, International Association of
Machinists, affiliated with the American Federation of Labor; herein
called the A. F. of L., by its allegedly subversive publications in the
period preceding the election, engendered confusion and created dis-
unity among the employees of the Company, the effect of which was to
prevent a fair reflection of the desires of the employees in the election
directed by the Board among the production and'maintenance em-
ployees, and to imperil the successful prosecution of the war. Thus,
it is alleged that the A. F. of L. took unfair advantage of the C. I. O.'s
commitment to the President of the United,States to give up overtime
pay during the war for work done on Saturday, Sunday, and holidays,
where such days fall within the normal 40-hour week, first, by A. F. of
L. propaganda charging that, against the desires of the employees, the
C. I. O. had needlessly and unwisely sacrificed the best interests of the
employees at the Columbus, Ohio, plant of the Company, by giving up
overtime pay; and secondly, by other publications' falsely promising
(since the American Federation of Labor had also made overtime pay
commitments) that if the A. F. of L. won the election, overtime pay
would be retained, whereas if the C. I. O. won, overtime pay would be
lost. The objections further state that the A. F. of L. further ridiculed
CURTISS-WRIGHT CORPORATION 797
the C. I. O. for having entered into contracts providing that wage in-
creases be paid in war bonds rather than in cash, and providing that no
strikes would be undertaken in war industries. The C. I. O. concludes
that by these publications the A. F. of L. has deliberately sought to
prevent compliance with the orders, rules, and policies of the President
established in aid of the war effort.
On July 23, 1942, the Regional Director issued a Report on Objec-
tions. Therein he states that the quotations set forth by the C. ,I. O.
in its objections are verbatim quotations taken from certain articles and
items appearing in a paper published by the A. F. of L. The Regional
Director recommends that the objections be dismissed on the ground
that they do not raise substantial and material issues with respect to
the election and the conduct thereof.
In connection with the objections of the C.• I. 0., the Board's atten-
tion has been called to certain publications of the C. 1. 0., likewise issued
during the election campaign. The theme of these publications , is to
hold American Federation of Labor leaders up to ridicule as'gaiigsters
and criminals.
Some of the activity in this and other election campaigns has given
the Board much concern. The Board has not, however, set aside elec-
tions because of expressions of opinion and promises contrary to the
obligations voluntarily undertaken by the official spokesmen for the
labor movement in an effort to secure the most sucessful prosecution
of the war. The difficulty we perceive in refusing to declare by certifi-
cate the results of the uncoerced balloting in these proceedings is that
the employees who have freely selected a representative would be dis-
franchised under the guise of penalizing the officials of a labor organi-
zation for their own reprehensible conduct.' The Board'will not deny
certification in this case, but it does request and will expect more appre-
ciation by all parties involved in Board elections of the obligations
resting upon them under an Act designed to protect their"rights and to
resolve such disputes as arise among them. The objections of the
C. I. 'O. are hereby overruled.
In the Decision and Direction of Elections previously referred to, the
Board made no final determination as to the appropriate unit or,units,'
but found "that all welders and welders' apprentices and all employees
who join or fuse metal by heat, excluding those employees classified by
the Company and known as spot welders, could properly function as a
separate bargaining unit or as part of a plant-wide unit," depending
upon the results of the elections directed by the Board.
3 The dissenting opinion, while pointing out that the employees may have been swayed
by improper or unpatriotic motives, is not and cannot be based upon the theory' that
the employees were coerced or acted under duress in casting their ballots. This dis-
tinguishes ' Matter of Minneapolis -Moline Power Implement Company and Matter of
Natoonal Tea Company, cited in footnote 4 of the dissenting opinion.
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the Board makes the .following :
SUPPLEMENTAL FINDINGS OF FACT
We find that all welders and welders' apprentices and all employees
who join or fuse metal by heat, excluding those employees classified by
the Company as spot welders, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9 (b)
of the Act.
We also find that all of the Company's production and maintenance
employees at its Tonawanda and Cheektowaga, New York, plants,
including interplant drivers, shop clerks, cafeteria workers, working
group leaders, powerhouse engineers and other powerhouse employees,
and spot welders, but excluding office, clerical, engineering, time-study
employees, foremen's clerks, mold loft employees, watchmen and guards,
first-aid employees, training school enrollees, and further excluding,
foremen, assistant foremen, other supervisory employees, and welders,
welders' apprentices, and all employees other than spot welders who
join or fuse metal by heat, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9 (b) of the Act.
CERTIFICATION OF REPRESENTATIVES
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, as amended.
IT IS HEREBY CERTIFIED that Associated Welders of Western New York,
Inc., has been designated and selected by a majority of all welders and
welders' apprentices, and all employees who join or fuse metal by
heat, employed by Curtiss-Wright Corporation at its Tonawanda and
Cheektowaga, New York, plants, excluding those, employees classified
by the Company and known as spot welders, as their representative for
the purposes of collective bargaining, and that pursuant to Section
9 (a) of the National Labor Relations Act, Associated Welders of
Western New York, Inc., 'is the exclusive representative of all such
employees for the purposes of collective bargaining in respect to rates
of pay, wages, hours of enmployment, and other conditions of employ-
ment.
IT IS FURTHER CERTIFIED ,that Aircraft Lodge #585, International
Association of Machinists, affiliated with the American Federation of
Labor, has been designated and selected by a majority of all production
and maintenance employees employed by Curtiss-Wright Corporation
at its Tonawanda and Cheektowaga, New York, plants, including inter-
plant drivers, shop clerks, cafeteria workers, working group leaders,
CURTISS-WRIGHT CORPORATION 799,
powerhouse engineers and other powerhouse employees, and spot
welders, but excluding office, clerical, engineering, tune-study em-,
ployees, foremen's clerks, mold loft employees, watchmen and guards,
first-aid employees, training school enrollees, and further excluding
foremen, assistant foremen, other supervisory employees, and welders,
weld'ers' apprentices, and all -employees other than spot welders who
join or fuse metal by heat, as their representative for the purposes of
collective bargaining, and that pursuant to Section 9 (a) of the Na-
tional Labor Relations Act, Aircraft Lodge #585, International Asso-
ciation of, Machinists, affiliated with the American Federation of Labor,
is the exclusive representative of all such employees for the purposes
of collective bargaining in respect to rates of pay, wages, hours of
employment, and other conditions of employment.
MR. GERARD D. REILLY dissenting : -
By'overruling the objections filed by the United, Automobile, Air-
craft and Agricultural Implement Workers of America, C. I. 0. Local
753, and proceeding to certify Aircraft Lodge #585, International
Association of Machinists , affiliated with the American Federation of
Labor,'without giving the protesting union an opportunity to be heard,
the Board is, in effect, holding that the objections raise no material or
substantial issues . It is true that the pleadings do not make out a case
of either employer interference or irregularity in the polling-the only
grounds on which elections are normally set aside . , Yet I am of the
opinion that the issues implicit in this matter are too grave and serious
to dispose of without setting the matter down for oral argument or
taking evidence on the allegations. -
The unhappy schism which has divided American labor into two
warring camps has presented this Board with many difficult questions.
Rarely, however , has this factional strife culminated in an issue
fraught with more ominous significance than the one with which we
are now confronted . Boiled down to its essence that issue is this-
whether a local of the union affiliated with one of the great branches
of organized labor is entitled to retain the benefits of an election won
over a rival union by repudiating a solemn compact with the President
of the United States made in the interests of prosecuting the war by
the National leaders of its parent organization , in the face of an allega-
tion that its success in the election was due to this very act of
intransigeance. -
Since there is no evidence before us , it is somewhat difficult to de-
scribe the context in which this issue is presented. Both the contesting-
locals, however, have sent us periodic copies of their literature. Hence
a fair picture of the campaign which gave rise to the instant controversy'
may be drawn.
800 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The plant of the Curtiss-Wright Corporation at Buffalo, the unit
involved in'these proceedings, is one of the, largest producers of military
airplanes in the country, employing more than 20,000 production ands
Maintenance workers. Labor relations in this factory and otheD plants
operated by this corporation have been'a prolific source of friction for
a long period. For several years, these employees dealt with the man-
agement through an unaffiliated union known as "The Aircraft" which
was'ordered disestablished, last March by the Board,3 after a hearing
had revealed, inter alia, that the employing corporation had contrib-
uted'financial support to it and had dominated the organization in
violation of Section 8 (2) of the Act. After the decision of the Board,
the Company agreed to comply with the order without contesting' it in
the courts.
The course of the proceedings before this Board was marked by bitter
recrimination between "The Aircraft" and the C. I. O. which filed the
charges. The C. I:0. pamphlets depicted the officers of the unaffiliated
union as creatures of the Company, and "The Aircraft" in its own
publication portrayed the charging union as an agent of the Communist
Party bent on obstruction of the war production program. Shortly
after the decision of the Board was issued, "The Aircraft" announced
in its publication that it would seek a charter from the American
Federation of, Labor. A few weeks later, the International Association
of Machinists established a local called Aircraft Lodge #585. This
local and the C. I. O. petitioned this Board for an election. The peti-
tions were granted and an election by secret ballot conducted on July
-15,1942.
Prior to this date, the rival unions engaged in extensive pam-
phleteering, the A. F. of L. circulating a publication called "The Air-
craftsman" attacking the C. I. O. in the same vituperative journalistic
style with which the readers of "The Aircraft" had long been familiar.
The C. I. O. issued a publication lampooning the Executive Council
of the American Federation of Labor as an organization composed of
convicted felons and racketeers; In the election, more than 18,000
out of the 20.145 eligible to vote in the unit cast ballots, 9,699 selecting
the A. F. of L. and 7,450 the C. I. O. Thereupon, the losing union
filed objections.
If the issues raised by the objections had been confined to the even(a
described in the foregoing paragraphs, I should agree that the objec-
tions are without merit. Although the mutual exchange of libellous
charges may well have influenced' some voters, it is unfortunately not
a unique occurrence for rival -unions to engage in this type of elec-
tioneering. The Board has-and to my mind wisely-refused to
311 latter of Curtiss -Wright Corporation and International Union, United Automobile,
Aircraft it Agricultural Implement Workers of America, Local 753 , 39 N. L . R.'B. 992.
CURTISS-WRIGHT CORPORATION 801
engage in speculation on the extent to which campaign talk. oft this
character influences an election. There must be an end to all things.'
This Board has generally fixed the terminal point as the ballot box.5
This case, however, is not controlled by that well established doctrine.
It will be recalled that in March of this year, in response to-a,,request
mf the President, the American Federation of Labor and-the Congress
of Industrial Organizations agreed with 'the President to- the aboli-
tion of penalty overtime in the war industries.' The object of .this
compact was to encou"rage continuous production and yet, at the same
time, keep in effect the standards of the Walsh-Healey Public Con-
tracts Act and the Fair Labor Standards Act. The agreement was
that the unions represented-by the American Federation of Labor and
the Congress of Industrial Organizations would renounce any right
(even that guaranteed by collective agreement) to premium time for
work on Saturdays, Sundays and holidays where such days fall within
the normal workweek. This' understanding was widely publicized
tend hailed by the press as an important step in the development of a
national war labor policy, second only in importance to the no-strike
agreement,, pursuant, to which the War-Labor Board was established.
Largely as a result of this, Congress refused to pass legislation con-
templating the compulsory abolition of overtime rates of pay.
The Curtiss-Wright workers at Buffalo, however, were not affected
by this agreement, since the union with which it dealt was not affiliated
with either of the two great branches-of organized labor.' Apparently,
even subsequent to the disestablishment of the union, the corporation
has continued to pay premium` overtime on Saturdays and Sundays.
As the objections allege and as some of the exhibits which' were
brought to us show, the A. F. of L., even though affiliated with the
American Federation of Labor, in its pre-election statements appealed
to the workers to support it on the ground that its program contem-
plated time and a half for Saturday and, double time for Sunday.
The C. I.', O. was accused of unnecessarily sacrificing the interests of
the workers by agreeing to an abandonment of this schedule at the
Columbus plant of the same corporation. ' The whole theme of'these
appeals made clear to the workers that if they selected the C. I., O.
rather than the A. F. of L. as their representative, they would be com-
pelled to give up their current premium overtime 'rates. In view of
'In the law of negotiable instruments similar-reasons of policy have led the courts to
establish a presumption of payment in due course to transactions completed at the
drawee's window.
"'Matter of The National Sugar Refining Company of New Jersey and International
Longshoremen's Association, Local 1476, Sugar Refinery Workers, 4 N. L. R. B. 270 ; Matter
of Interlake Iron Corporation and Amalgamated Association of Iron, Steel, and Tin Workers
of North America, Local No 1657, 6 N. L. R. B. 780;'Matter of The Cudahy Packing Com-
pany and United Packing House Workers, Local Industrial Union No. 194, 26 N. L. R. B. 749.
481039-42-vol. 43-51
802 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD
the relative closeness of the election , it is contended ' that this argu-
ment may well have been the proximate cause of the result: In any
event since we are refusing to hear evidence on the point , we must
assume this allegation io be a fact. - -
While - there has been no difference of opinion in the Board with
respect to,the reprehensibility of the propaganda in this election-cam-
•paigii,o and while it is recognized that to permit a union local to use
the rn 'achinery of-this Board to , defeat a . fundamental principle of na-
tional labor policy produces an undesirable result; it-lies been urged
-that the Board has no other course . The view is that if a majority
of the employees has made a choice, the Board is bound to give effect
to their selection. Although this consideration is persuasive , I am not
conViiiced that it is 'compelling . It seems to me that it overlooks the
fact that determination of a majority is itself an incident of a quasi-
judicial process within the jurisdiction of the Board. Hence, this
Board, like other tribunals , must possess the power during the pend-
ency of a case to prevent the parties thereto from creating an atmos-
phere which, brings its proceedings into contempt and ridicule. On at
least two occasions where the conduct of a, competing . iinion . has been
improper, the Board has protected the integrity of its proceedings by
setting aside the election.°
Moi?eover , on the substantive side, I should agree that if the statute
were clear and definite , any policy of the executive branch of the Gov-
ernment, no matter how desirable , would of course have to yield to
.its provisions . Nor do I take the position that self-serving arguments
with regard to the paramount importance of expediting production
should - swerve this Board into a ' departure from precedents which
have come to .be recognized as established doctrines in the law of labor
relations . Such deviations to meet the ex'igencies of - particular cases
would disturb rather than promote industrial peace in the long run.
It is my opinion , however, that while the context may be novel, the
problem presented by this case is not altogether unique. The question
has a close analogy to another limitation upon the doctrine of complete
freedom of choice in election cases . The Board has on many occasions
when two unions belonging to the same parent body have petitioned
this Board to conduct an election to resolve conflicting jurisdictional
claims, dismissed the petitions on the ground that the parent body had
jurisdiction to settle the matter.
- The position of the Board in these • caWes has not been that employees
have no right to select a 'representative of their choice , but rather
that when the contesting representative is a union subject to the dis-
cipline of a parent organization , its authority to act for the employees
O Matter of Minneapolis -Moline Power Implement Company and International Associa-
tion of Machinists , Local No 1037, 7,'N. L R B 840; Matter of National Tea Company
and Progressive Grocery and Warehouse TT-orkers Union, 41 N . L R. B. 774. -
CURTISS-WRIGHT CORPORATION 803
must be undisputed .. • Otherwise the will of the employees might be
subsequently defeated by a jurisdictional award of the parent body or
some disciplinary action , such as the revocation or suspension of its
charter.
We have a cognate ' situation here.. I, for one, would not presume
in the absence of .evidence that the officers who regularly represent
the parent organization in dealing with the Federal Government on
matters of general labor policy, had no authority to bind all its con-
stituent unions. To indulge such an assumption would be, tantamount
to saying that these officers were either ignorant of the limits of their
authority or misrepresented their powers to the President and Con-
gress . We have no official knowledge of the position of the Executive
Council of the American Federation of Labor with respect to this case,,
and since it appears on its face to fall within'the familiar doctrine
of the "jurisdictional " dispute cases , I would not overrule the objec-
tions without investigating this aspect of the matter at a public
hearing.