Dongan Electric Mfg. Co.

National Labor Relations Board - Board Decisions

Oct 26, 1956

116 N.L.R.B. 1440 (N.L.R.B. 1956)

1440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nent employment and that such employees should therefore be excluded
from the unit. The record shows that at the time of the hearing, the
Employer employed approximately nine additional "miscellaneous"
employees for the purpose of manually performing certain bread
cooling operations until the automatic bread cooler could be repaired.
Some of these employees, however, were to be retained as permanent
employees after the automatic bread cooler was replaced in operation
sometime in July 1956. The remaining number of them were to be
dismissed immediately after such event. As it appears that the auto-
matic bread cooler should now be in operation and that the employees
currently employed are permanent employees, we find it unnecessary
to pass upon the Employer's contention.
We find that the following employees constitute a unit appropriate
for collective-bargaining purposes within the meaning of Section 9
(b) of the Act:
All employees employed at the Employer's Denver, Colorado, plant,
including all wrapping machines operators, checkers, loaders, machine
feeders, bread rackers, utility employees, garage employees, mainte-
nance mechanics, and janitors, but excluding driver salesmen, bakery
department employees, office clerical and professional employees,
guards, watchmen, and all supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
Dongan Electric Mfg. Co . and Local 947, United Electrical, Radio
and Machine Workers of America (UE), Petitioner . Case No.
7-RC-3139. October 26, 1956
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 Iris H. Meyer, hearing offi-
cer. 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 Act.
2. The labor organizations involved claim to represent employees of
the Employer.'
3. On June 28, 1955, a union-shop contract was made by the Em-
ployer and the UE, an amalgamated local representing employees of
other employers as well as the Employer involved in this case. The
contract by its terms was to be in effect until May 11, 1956, and an-
3 Local 351, United Automobile, Aircraft and Agricultural Implement Workers of America,
AFL-CIO (UAW), and International Union of Electrical , Radio and Machine Workers,
AFL-CIO (IUF.), intervened at the hearing.
116 NLRB No. 197.
DONGAN ELECTRIC MFG. CO. 1441
nually thereafter in the absence of notice by either party in writing
at least 60 days prior to expiration of the contract.
On February 3, 1956, about a month before the automatic renewal
date of the contract, a regular meeting was held of the UE unit'at the
Employer's plant. The meeting had been called in customary fashion,
by a notice posted by employee Long, who was chief steward of the
unit and the acting president of the amalgamated local. The record
does not contain a copy of the notice, and is silent as to whether the
notice mentioned any proposed disaffiliation action. However, a reso-
lution was passed providing that whereas the UE had been expelled
from the CIO and as a result was unable to satisfactorily represent
the employees, "this organization" resolved to sever affiliation with the
UE and transfer to the UAW (also an amalgamated local), together
with the contract and all other property not belonging to the UE.
Virtually all of the Employer's employees thereafter signed cards
for the UAW, and also a petition approving the change of affiliation
and specifically revoking the checkoff to the UE.2 The Employer,
upon being so advised by the UAW, granted the UAW's request for
recognition and continuation of the contract and the checkoff (based
on new authorizations).
The UE promptly learned of these events, as appears from an un-
fair labor practice charge it filed against the, Employer with respect
to the UAW (the UE introduced the charge in evidence at the hear-
ing'in this case). In the charge one Payne; a UE field organizer,
made the verified statement on February 27, 1956, that he had tele-
phoned to the Employer'to discuss rumors that the Employer had en-
tered into an agreement with the UAW in the face of the UE con-
tract covering the same unit. The organizer further stated that the
Employer confirmed the rumors and said that it would thereafter
deal only with the UAW. The UE later withdrew this charge.
' On March 23, after,the automatic renewal date of the original con-
tract had passed with neither' of the parties named in the contract
having served the stipulated notice, on the other to terminate the con-
tract on its initial expiration date, the UE filed the instant petition.
We find that a question concerning representation exists. All the
necessary ingredients which compel such a 'finding are present; the
asserted "desires" of parties for a contrary finding cannot dictate a
contrary result. The UE claims the right to represent these em-
ployees.3 Whether or not, as our dissenting colleague asserts, the UE
2 The UE did not object to the introduction of evidence of the employees ' shift to the
UAW, as set forth above.
3 We find no merit in the UE's argument that as far as the TUE or the UAW was
concerned , no question of representation could exist because its own contract with the
Employer had automatically renewed itself in the absence of the stipulated notice, and
barred the intervening unions. Puerto Rico Cement Corporation, 97 NLRB 382 ; Western
Equipment Corporation , 96 NLRB 1376.
405448-57-vol. 116-92
1442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"in effect recognizes that it does not have a present majority," is not a
relevant consideration in determining the existence of a question con-
cerning representation. The intervening UAW also claims the right
to represent these employees, and has indicated, as does the Employer,
that it has no objection to an election to resolve the question con-
cerning representation despite its motion to dismiss the UE's petition.
The intervening IUE likewise has asserted the existence of a question
concerning representation although for reasons of strategy it wishes
to delay the holding of an election 4 It has an adequate showing of
interest to support its intervention and it is immaterial that it is
less than the 30 percent which would be necessary if it were a sole
petitioner. Section 9 (c) (1) of the Act provides without exception
or qualification that "If the Board finds upon the record of such
hearing,that such a question of representation exists, it shall direct
an election by secret ballot and certify the results thereof." [Em-
phasis supplied.] The'situation therefore does not admit any exer-
cise of discretion to grant the UAW's motion to dismiss the petition.
The mandate of the statute is the "sound reason" for the Board to
direct an election to resolve the conflicting claims of three different
unions who assert the right to represent these employees. Moreover,
it is clear that an election which will resolve these conflicting claims
cannot be regarded as a waste of Board funds.
4. The parties stipulated and we find that the following employees
of the Employer constitute a unit appropriate' for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act:
All production and maintenance employees, excluding office clerical
employees, plant clerical employees, professional employees, guards,
and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
MEMBER BEAN , dissenting': •
I would grant the UAW's motion to dismiss the petition. Regard-
less of the normal significance of the filing of a petition, the Petitioner
here made it clear at the hearing that it did' not want an election.
Rather it sought certification without an election, for the purpose of
thwarting the expressed desires of an overwhelming number of the
employees to repudiate it before its contract was automatically re-
newed and it was too late to achieve the desired 'result. I regard the
Petitioner's action in filing the petition as null and void because based
on an obvious misconception of the applicable law, which in Section
9 (c) (1) provides that the Board can issue a certification only as the
result of an election. -
`Although the TUE made its position clear that a question of representation exists, it
is somewhat equivocal concerning the time for holding an election and apparently requests
the Board to suspend action pending issuance by the AFL-CIO of a jurisdictional award
covering the employees here involved. There is no merit to this request. North Ameri-
can Aviation, Inc., 115 NLRB 1090.
INTERCHEMICAL CORPORATION 1443
In any event and even assuming that the petition were valid, I
would regard the position taken by the Petitioner at the hearing,
where it clearly and repeatedly rejected the desirability of an election
among all the competing unions, as tantamount to a request for leave
to withdraw the petition. Moreover, none of the other parties has
indicated a desire for an immediate election. In these circumstances
I perceive no sound reason for the Board to ignore the desires of all
the parties and to find a present representation question calling for
an election. On the contrary, the Petitioner in effect recognizes that
it does not have a present majority and is not entitled to represent the
employees ulider the Act. Rather, it hopes to subvert the statute by
asserting the technicalities of=private contract laly.
As to the other labor organizations, the presently recognized UAW,
far from raising. a representation question, has moved to dismiss the
petition. And the hUE neither seeks a present election nor has a
sufficient interest among the employees to support a request for an
election.5 The Employer has not requested an election nor has it as-
serted the existence of a question of representation. Thus, none of
the parties has in fact raised a question concerning the desires for
representation of a present majority of the Employer's employees.
To direct an election in these circumstances; merely because of the
conflicting but obviously insubstantial • claims of the UE and the
IUE, is to incur needless expense and the ever present risk of dis-
turbing the lawful collective-bargaining relationship which now exists.
I would not sanction the expenditure, of Board time and funds for
this purpose.
CHAIRMAN LEEDOM took no part in the consideration of the above
Decision and Direction of Election.
5 The Board normally requires a showing that a labor organization has been designated
by at least 30 percent 'of the employees before proceeding upon its request for an election.
See Section 101.17 of National Labor Relations Board Statements of Procedure.
Interchemical Corporation and International Brotherhood of
Teamsters, Chauffeurs , Warehousemen and Helpers of Amer-
ica, AFL-CIO, Local No. 34. Case No. 7-RC-39212. October 26,
1956 '
DECISION AND, DIRECTION OF ELECTION
Upon a petition, duly filed under Section 9 (c) ofthe National Labor
Relations Act, a consolidated hearing was held before 'Peter D.
Walther, hearing officer. , The' hearing officer's rulings made at the
hearing are free from prejudicial error and are hereby affirmed.
116 NLRB No. 201.