General Dynamics Corp.

National Labor Relations Board - Board Decisions

May 15, 1969

175 N.L.R.B. 1022 (N.L.R.B. 1969)

1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Dynamics Corporation, Pomona Division'
and Miscellaneous Warehousemen , Drivers &
Helpers, Local 986 , International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America , Petitioner . 21-RC-109'73
May 15, 1969
DECISION AND DIRECTION OF
ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Claude R.
Marston. The Employer, the Petitioner, and the
Chamber of Commerce of the United States of
America, as amicus, filed briefs.'
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has
delegated its powers in connection with this case to
a three-member panel.
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 and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The labor organizations involved claim to
represent certain employees of the Employer.
3. The Petitioner filed the instant petition on
August 21, 1968, wherein it seeks to represent a unit
of employees at the Employer's Pomona Division
plant including
Chemical Analyst, Design Draftsman,
Engineering Development Technician, Engineering
Draftsman A, Engineering Draftsman B,
Engineering Laboratory Technician, Engineering
Liaison Man, Engineering Standards
Development Technician, Junior Engineer,
Laboratory Electronics Technician, Leadrnan -
Technical, Metallurgical Analyst, Numerical
Control Machining Programmer A, Numerical
Control Machining Programmer B, 'Quality
Control Analyst, Research Development
Technician, Technical Publications Writer,
Technical Writer, Tool and Operations Planner
A, Tool and Operations Planner B, Tool Designer
A, Tool Designer B, Tool Designer C, Weight
Computer
and excluding
All other employees, office clerical employees,
guards, professionals, and supervisors as defined
in the Act.
'The Employer's name appears in the caption as amended at the hearing.
'As the record and briefs, in our opinion , adequately present the issues
and the positions of the parties, the requests of the Employer and the
amicus for oral argument are hereby denied.
The unit sought is the same as that for which
Engineers and Architects Association (Technical
Employees), Pomona Valley Chapter,' was certified
by the Board in 1963, and which is presently
covered by its collective-bargaining agreement with
the Employer. The Employer alleges that this
agreement, effective from November 15, 1965, until
December 9, 1970, should be a bar to the instant
petition.' The Petitioner contends in effect the
petition was timely filed during the 60-90 day period
preceding the third anniversary date of the
agreement,' and that the contract does not constitute
a bar to the petition, citing the standard
contract-bar rules enunciated in Leonard Wholesale
Meats, Inc., 136 NLRB 1000, and General Cable
Corporation, 139 NLRB 1123.
We agree with the Petitioner's contention and find
that a question affecting 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.
The relevant facts are as follows:
On or about May 24, 1968, a group of EAA
members made contact with Bennett, Petitioner's
business representative.' Thereafter, on June 13,
1968, Bennett and Pappy, Petitioner's counsel, met
with EAA President Heredia, other members of the
EAA Board of Governors, and several rank and file
members of EAA. At this second meeting Heredia
and the other EAA members indicated that they did
not have the experience with which adequately to
administer their agreement with the Employer, and
that they wished to affiliate with the Petitioner.
Bennett replied that Petitioner would not accept an
affiliation, but that they could set up an organizing
committee, conduct an organizing campaign, obtain
authorization cards, and in that manner secure
recognition of and. bargaining by the Petitioner.
Bennett said that Petitioner was not interested in
any contract other than one it would negotiate.
On July 3, 1968, Heredia met with the
Employer's Labor Relations Assistant, Bailey, and
told the latter that EAA needed a strong union and
was considering affiliation with Petitioner, and that
he had signed up over 50 percent of the unit
employees for Petitioner. The same day Bennett
advised the Employer of the names of employees
who were members of the "Professional and
Technical Employees Organizing Committee of
'Hereinafter referred to as EAA. The EAA did not intervene in and is
not a party to this proceeding.
'The Employer also contends that the petition should be dismissed
because of a pending unit clarification petition previously filed by EAA
(Case 21-UC-21). On the request of EAA, the Board, on November 6,
1968, allowed withdrawal of that petition with prejudice . We therefore find
no merit in this contention.
'The Petitioner' s motion that this case be remanded to the Regional
Director for decision is denied . See Rules and Regulations of the National
Labor Relations Board , Series 8, as amended , Sec. 102.67(h)
`Other labor organizations contacted were International Association of
Machinists , The Engineering and Scientist Guild , The Southern California
Engineering Association, The Engineer 's Association in San Diego and The
Engineers and Architects Association - Civic Center
175 NLRB No. 154
GENERAL DYNAMICS CORP. 1023
Teamsters, Local .986."' Practically all were EAA
officers, members of its Board of Governors, or
employee representatives.
Heredia, as president of EAA, published three
issues of the EAA- news within the next few weeks.
The first edition, dated July 5, 1968, called attention
to several disputes between the Employer and the
EAA, and sought support for EAA from those in
the bargaining unit. The second discussed problems
that EAA was having with the Employer, concluded
that EAA must seek to affiliate with a large
organization , and announced that several persons
had been looking for such an organization and
were now ready to present it at a dinner meeting
being planned . The third urged that
"show-of-interest-cards" be signed.
Labor Relations Assistant Bailey testified that he
had several conversations with EAA President
Heredia between July 31 and October 8, during
which Heredia said that Bailey could bring about
a cessation in the activities of Petitioner
if the Employer would renegotiate the
collective-bargaining . agreement and stop the
encroachments on bargaining unit work; but that
even if Petitioner were to lose the election, EAA
would affiliate.
Campaign material distributed to the unit
employees was issued in the name of the Teamsters
Organizing Committee, bore the Petitioner's
letterhead, was printed through use of Petitioner's
facilities and was financed and mailed by Petitioner.
In these leaflets , the Petitioner claimed that if it
won, it would not be bound by the current
collective-bargaining agreement ; quoted excerpts
from the Board 's, decision in American Seating
Company, 106 NLRB 25C, to that effect; and asked
the employees to vote on a proposed resolution
putting the "Company on Notice" that "we"
demand that all wage increases and benefits be
retroactive.
The parties stipulated that at the time of the
hearing EAA was functioning as a labor
organization within the meaning of the Act and is
engaged in the . administration of the current
collective-bargaining agreement . In addition, the
record shows that in 1968, between 34 and 40
grievances were filed, at least 11 of which were filed
subsequent to Heredia's first contact with Petitioner.
Further evidence was introduced that, at the date
of the hearing herein , EAA had not taken any
action to affiliate with the Petitioner, and was
maintaining its own . office, collecting dues, and
disbursing these dues in payment of expenses.
In Leonard Wholesale Meats, Inc., 136 NLRB
1000, the Board held ' that petitions are timely when
filed not less than 60 and not more than 90 days
before the terminal date of a subsisting collective-
bargaining agreement . Thereafter, in General Cable
'Thereafter, on August 13, 1968, Bennett advised the Employer of two
additions to the Committee.
Corporation, 139 NLRB 1123, the Board stated:
Contracts of definite duration for terms up to 3
years will bar an election for their entire period;
contracts having longer fixed terms will be treated
for bar purposes as 3-year agreements and will
preclude an election for only their initial 3 years.
All other contract bar rules, whether related or
unrelated to the subject of contract terms, remain
unaltered; our new 3-year rule is to be read in
harmony with them [citations omitted].
Under the rules established in those cases, the
petition herein is timely, as it was filed during the
60-90 day period preceding the third anniversary
date of the Employer-EAA contract.
The Employer and the Chamber of Commerce
contend, however, that the contract should be a bar
for its full 5-year term on the grounds, inter alia,
that: (1) The 3-year rule should be abandoned
because it gives a raiding union an unfair advantage
over an incumbent union. Thus, it is argued, the rule
permits a petition to be filed by a rival union which,
if it wins, is not bound by the contract for the
remainder of its term, under the rule in American
Seating Company, supra, and is therefore free to
hold out to employees the promise of a more
lucrative contract. In contrast, the incumbent union
which cannot file a petition after 3 years is bound
by its contract for the full-term under the doctrine
of General Cable Corporation, supra, fn. 7, and
Montgomery Ward & Co., Incorporated, 137
NLRB 346. (2) The 3-year rule should be enlarged
to 5 years for contracts with employers, such as
General Dynamics, which are engaged in
defense-oriented projects subject to Defense
Department regulations which encourage multiyear
procurement programs of up to 5 years. It is
contended that such employers must make multiyear
fixed-price bids and in order to bid competitively,
should be enabled to project labor costs, fixed by
collective-bargaining agreements, over periods in
excess of 3 years.
We have carefully considered these contentions
and the arguments made in support of them, and
have decided to adhere to the 3-year rule established
in General Cable. The considerations set forth in (1)
above do not apply to this case. The petition herein
was not filed by EAA, and the inapplicability of the
rule to incumbent unions is therefore not in issue.
As to (2), the allegations regarding employers
engaged in defense projects, and the Employer's
assertion that contracts with terms longer than 3
years are now common with its and others in this
industry, do not persuade us of the desirability of
treating one industry differently from others because
a substantial part of it is covered by long-term
collective-bargaining agreements . As the Board
stated in Pacific Coast Association of Pulp and
Paper Manufacturers, 121 NLRB 990, 993:
'Petitioner, however, asserts that many defense contractors are still
entering into contracts with terms of only 3 years' duration . We note that,
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As one of the principal objectives of the contract
bar policy is to provide employees the opportunity
to select representatives at reasonable and
predictable intervals, we believe that the ends
served by the "substantial part of the industry"
test for long-term contracts do not justify the
sacrifice of predictability which that test
necessarily entails.
We still subscribe to the view that:9
if, as some have urged, we were at present to
cause further delay by expanding the bar period
to more than 3 years, stability of industrial
relations would in our judgment be so heavily
weighted against employee freedom of choice as
to create an inequitable imbalance.
We find no merit in the Employer's further
contention that the Petitioner is in reality not a rival
union but is a fronting legal successor to EAA, and
therefore not entitled to file the petition under the
Montgomery Ward & Co., Incorporated, supra,
rule. While EAA initially desired to affiliate with
Petitioner, it had not, at the time of the hearing
herein, taken any action to affiliate. Furthermore,
Petitioner consistently maintained at all times
material herein that it would not accept an
affiliation. No officer or agent of Petitioner is a
member of the Board of Governors or other official
arm of EAA. The parties stipulated that EAA, at
the time of the hearing herein, was functioning as a
labor organization within the meaning of the Act,
and was engaged in the active administration of the
current collective-bargaining agreement. The
evidence shows that EAA maintains its own office,
collects dues, pays its expenses out of dues collected,
and is actively engaged in the processing of
grievances. The fact that all but two of the thirteen
members of the Teamsters Organizing Committee
are officers, Board members, or representatives of
EAA, does not of itself indicate that Petitioner is in
fact the successor to EAA. There was no agreement
between EAA and Petitioner that the officers of the
former would be officers of the Petitioner local, that
Petitioner would succeed to the assets of EAA, that
EAA would continue in existence, or that benefits
derived through Petitioner's efforts would inure to
EAA. Petitioner's business representative, Bennett,
told Heredia and the others seeking a change that
they must set up an organizing committee, conduct
an organizing campaign, and obtain a sufficient
although the Employer contends that a longer time period for contract-bar
purposes is necessary in the defense industry , it nonetheless entered into a
$120 million missile contract in 1967 with a completion date of 1973. This
contract will extend 3 years beyond the expiration of the
collective-bargaining contract . This example makes it clear that it is truly
difficult to stabilize labor costs in this industry , no matter what
contract-bar period may be applied.
'Genera! Cable. Corporation , supra. 1125. That other means are
available to protect employee rights and stabilize industrial relations does
not derogate from the Board 's obligations under the Act.
number of signed authorization cards, in order to
secure recognition of and bargaining by the
Petitioner. The conduct herein was for the most part
consistent with this statement of procedure. That
some EAA members may have been dissatisfied
with the current collective agreement and with
EAA's ability to administer that agreement
effectively, and sought to avoid the agreement, does
not operate to preclude all of the employees in the
unit from their right to select a new union
representative, where the petition is otherwise
timely. We note also that the desire to obtain more
vigorous and professional representation was
initially stated to be the purpose of the employees'
efforts on behalf of the Petitioner.
Accordingly, we find that Petitioner is not the
successor to EAA, and that the contract on that and
on any other ground asserted by the Employer is not
a bar to the instant petition.
4. We find that the unit appropriate for the
purposes of collective bargaining within the meaning
of Section 9(b) of the Act consists of the following
employees at the Employer's Pomona Division
plant:
Chemical Analyst, Design Draftsman,
Engineering Development Technician, Engineering
Draftsmen A, Engineering Draftsman B,
Engineering Laboratory Technician, Engineering
Liaison Man, Engineering Standards
Development Technician, Junior Engineer,
Laboratory Electronics Technician, Leadman-
Technical, Metallurgical Analyst, Numerical
Control Machining Programmer A, Numerical
Control Machining Programmer B, Quality
Control Analyst, Research Development
Technician, Technical Publications Writer,
Technical Writer, Tool and Operations Planner
A, Tool and Operations Planner B, Tool Designer
A, Tool Designer B, Tool Designer C, Weight
Computer; excluding all other employees, office
clerical employees, guards, professionals, and
supervisors as defined in the Act.
[Direction of Election'" omitted from publication.]
"In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses which may be used to communicate with them . Excelsior
Underwear Inc., 156 NLRB 1236; N.L.R.B. v. Wyman-Gordon Company,
394 U.S. 759. Accordingly, it is hereby directed that an election eligibility
list, containing the names and addresses of all the eligible voters, must be
filed by the Employer with the Regional Director for Region 21 within 7
days of the date of this Decision and Direction of Election. The Regional
Director shall make the list available to all parties to the election. No
extension of time to file this list shall be granted by the Regional Director
except in extraordinary circumstances. Failure to comply with this
requirement shall be grounds for setting aside the election whenever proper
objections are filed.