Douglas Aircraft Co., Inc.

National Labor Relations Board - Board Decisions

Dec 14, 1950

92 N.L.R.B. 702 (N.L.R.B. 1950)

In the Matter of DOUGLAS AIRCRAFT COMPANY, INC., EMPLOYER and
G. E. HULL , AN INDIVIDUAL ACTING ON BEHALF OF ALL PLANNERS,
PETITIONER and INTERNATIONAL UNION , UNITED AUTOMOBILE, AIR-
CRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW-
CIO), ACTING THROUGH ITS LOCAL No. 148, UNION
Case No. 21-RD-9b.-Decided December 14,1950
DECISION AND ORDER
Upon a decertification petition duly filed, a hearing was held before
Eugene M. Purver, hearing officer. The hearing officer's rulings made
at the hearing are free from prejudicial error and are hereby affirmed.'
The Petitioner thereafter filed a brief.
Upon the entire record in the 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 representative of certain of the Employer's
employees as defined in Section 9 (a) of the Act.
The Union , a labor organization , is the currently recognized repre-
sentative of such employees. -
3. The alleged question concerning representation :
The individual Petitioner seeks decertification of the Union as the
statutory representative of. some -150 employees currently classified
as Planners at the Employer's plant in Long Beach, California.
Since certification in 1944,2 the Union has represented the pro-
duction and maintenance employees , numbering about 5,800 at the
time of the hearing, and has been in contractual relations with the
Employer respecting them. Planner , the classification involved in
this case, was not specifically mentioned in the certification . Indeed,
that classification did not come into existence until 1949, as set forth
below. However, production planner, although not represented in
the original contract entered into in 1944, was thereafter represented
by the Union as the result of a consent election in 1945, and continued
to be so represented as part of the production and maintenance unit
1 The Union moved to dismiss the petition , in part on the ground that the unit set forth
by the Petitioner was inappropriate . The hearing officer referred this motion to the Board.
For the reasons hereinafter set forth , the motion is granted.
2 54 NLRB 67.
92 NLRB No. 62.
702
DOUGLAS AIRCRAFT COMPANY, INC. 703
until the Employer discontinued the classification in September 1948..
Another classification, tool planner, although after 1945 it gradually
absorbed the work done by the production planners, was never repre
sented by the Union. .
On November 21, 1949, the Employer announced that, effective 1
week later, it would introduce a new occupation, Planner, which would
include the work theretofore done by the tool planners and the pro-
duction planners, and that the new occupation would be included in
the production and maintenance unit represented by the Union.
On November 25, 1949, the prospective Planners advised the Em-
ployer of their objection to being thus included without an election.
On a date not satisfactorily established in the record, the Employer
and the Union entered into a supplementary agreement, effective as
of November 28, agreeing to include the Planners in the production
and maintenance unit represented by the Union, and establishing
terms and conditions of employment with respect to them.
On December 2, 1949, the present decertification- petition was filed
on behalf of the Planners.
The record in this case does not satisfy us that the Planners are
the only technical employees at the plant, or even that they are the
only technical employees represented by the Union. Thus, they do
not constitute an appropriate unit in any sense .3 In the circum-
stances here present, we cannot give controlling weight to the former
practice, now abandoned, of excluding the tool planners from the
established production and maintenance unit, particularly as the unit
had included the production planners, one of the forerunners of the
Planners here involved.
This petition confronts the Board with another apparent conflict
between two provisions of the Act : (1) The principle of majority
rule, whereby a minority within an appropriate unit must accept the
collective bargaining representative desired by the majority; and (2)
the Board's obligation to decide in each case what unit is appropriate
in order to assure to employees the fullest freedom in exercising their
right not only to engage in but also to refrain from collective bar-
gaining. However, we are not called on in this case to decide whether
or not the Planners constituted an appropriate unit before their
transfer into the established bargaining unit.' We decide only that
3 Cf. Mountain States Telephone and Telegraph Company , 83 NLRB 773 ; Kelsey Hayes
Wheel Company, 85 NLRB 666 ; Pittsburgh Plate Glass Company, 90 NLRB 60.
See Armour & Co., 40 NLRB 1333; Peterson .& Lytle , 60 NLRB 1070 ; Allis-Chalmers
Manufacturing Company, 84 NLRB 30; Great Lakes Pipe Line Company , 92 NLRB 583.
Doctrine of these cases means only that one way of adding a fringe group to an over-all
unit is to hold an election in that group to determine whether or not it wishes to join the,
established unit. This is not equivalent to holding that there is no other way to merge such
a group into the over-all unit, or that a majority of the group could thwart the over-all
majority will with respect to collective bargaining, or that the group is also entitled to a
further separate election once it has been merged into the over -all unit.
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they clearly have not constituted an appropriate unit since that time.
Moreover, the facts now before us indicate that the Board, on appro-
priate request before the Planners were taken into the unit, would have
conducted an election in the over -all production and maintenance
unit, including the Planners although they were outnumbered by
about 40 to 1.6 They are thus not entitled to avoid the statutory
principle of majority rule by a separate election.
We therefore conclude that the Planners may not constitute an
appropriate unit in this case, and that consequently no question affect-
ing commerce exists concerning their representation , within the mean-
ing of Section 9 (c) (1) of the Act.. Accordingly, we shall dismiss
the petition.
ORDER
IT IS HEREBY ORDERED that the petition filed herein be, and it hereby
is, dismissed.
MEMBER MURDOCK, concurring :
I concur in the result reached by my colleagues, Members Reynolds
and Styles, and would dismiss the petition in this case. I reached that
result on the basis of the views I set forth in my dissenting opinion in
Great Lakes Pipe Line Company, supra.
CHAIRMAN HERZOG AND MEMBER HOUSTON :
We are constrained to disagree with the majority view that the
history of collective bargaining is not decisive in this case. We think
that it should be. The record is clear that the former occupation of
production planner became extinct by September 1948, more than a
year before the new occupation of Planner was created. The record
is likewise clear that the Planner occupation actually replaced only
the tool planner occupation, which both the Union and the Employer
had at all times excluded from the benefits of collective bargaining.
If the Union had sought an election among the employees in this
group for the purpose of adding them to the established production
and maintenance unit, either while such employees were classified
as tool planners or after they had been reclassified as Planners, the
Board would have held the election, thereby granting self-determina-
tion to the employees involved .6
It seems clear to us that Congress intended the decertification proc-
ess to extend to the Planners in circumstances such as these, regard-
less of the November 1949 arrangements between the Union and the
Employer. Accordingly, it seems improper to deny them a self-deter-
mination election, as the majority here- does,. merely because ,the
'See Waterous Company, 92 NLRB No. 29; Metz Baking Company, 92 NLRB 108;
Bronx County News Corporation , 89 NLRB 1567.
See cases cited above in footnote 4.
DOUGLAS. AIRCRAFT COMPANY, INC. 705
Planners themselves requested it upon discovering that the Union
and the Employer had maneuvered the situation so as to swallow them
up without consulting them.? Stated in another way, the Act enjoins
the Board to decide what is the appropriate unit "in each case," re-
gardless of whether the same group of employees would constitute
an inappropriate unit in other circumstances. Here both the Union
and the Employer have, by their own course of action over a period
of many years, rendered the Planners an appropriate unit for the
purpose of an election to determine at this time, whether or not they
were properly taken, over their timely objection, into the established
production and maintenance unit .8
We would therefore direct an election among the Planners to
determine whether or not they wish to be represented by the Union.
' See Chairman Herzog 's dissent in the Waterous case, supra . Because of the recency of
the transfer of the planners into the-established production and "maintenance unit, and the
promptness with which the planners raised a question as to their unit placement, Mr.
Houston views this proceeding as though it were here on an appropriate request by the
Union to annex the planners to the established unit at a time when they were still outside
the unit. Thus , it is unlike the Waterous case, where the majority of the Board held that
it would not ballot fringe employees specially where "the only union ( or unions ) seeking to
represent the fringe employees on any basis is , at the same time, asking for an election and
certification in the basic appropriate unit in which the fringe properly belongs.." [Emphasis
supplied .] It is more readily analogized to the recent Great Lakes Pipe Line case where the
Board ( Member Murdock dissenting ) directed a "globe" election among a fringe group of
employees sought to be added by the Petitioner to the over-all unit.
8 See the Mountain States case , supra, where the Board directed a decertification election
in what would normally be an inappropriate unit , because the history of inclusion of that
unit in collective bargaining made it appropriate in the particular circumstances there
present. In our view the history of exclusion of the Planners from collective bargaining in
the present case should be equally decisive.