Hughes Tool Co.

National Labor Relations Board - Board Decisions

Apr 22, 1953

104 N.L.R.B. 318 (N.L.R.B. 1953)

318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
HUGHES TOOL COMPANY and INDEPENDENT METAL WORK-
ERS UNION, LOCALS 1 and 2. Case No. 39-RC-133.'
April 22, 1953
SECOND SUPPLEMENTAL DECISION, ORDER,
AND DIRECTION
On August 15, 1946, pursuant to a Decision and Direction
of Election by the Board,2 the Independent Metal Workers
Union, Locals 1 and 2, hereinafter termed the Independent,
was certified as the collective-bargaining representative for
all production and maintenance employees at the Employer's
Houston, Texas, tool plant. On April 20, 1950, pursuant to
elections directed by the Board, the Board found that the
Independent again had been selected by the Employer's pro-
duction and maintenance employees at the Houston plant as
their bargaining representative and further found that "Because
the said organization is now the recognized exclusive bargaining
representative of a plant-wide unit ... the said organization
may continue to bargain for these employees as part of the
plant-wide unit which it currently represents."3
Thereafter, on August 18, 1952, the International Association
of Machinists, hereinafter termed the IAM, filed a motion
with the Board to revoke the certification of the Independent
issued as described above.4 The motion was grounded on the
ICase No. 39-RC-133 was filed by United Steelworkers of America. CIO, and was con-
solidatgd for purposes of hearing and decision with Cases Nos. 39-RC-127, 128, and 134
filed, respectively, by Carpenters Local Union No. 213, AFL, Local Union No. 211 of the
United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry
of the United States and Canada, AFL, and District No. 37, International Association of
Machinists. As Independent Metal Workers Union, Locals 1 and 2, was selected as repre-
sentative of the plantwide unit sought by the United Steelworkers in Case No. 39-RC- 133,
and its representation therein is at issue here, the caption and case number listing have
been modified and amended for purposes of clarity.
2 Hughes Tool Company, 69 NLRB 294.
3Hughes Tool Company, 88 NLRB 1038, and Supplemental Decision and Certification
issued therein. The plantwide unit which the Board found the independent continued to repre-
sent was a modification of the broad unit in which that Union had previously been certified.
The unit, as modified, consists of all hourly paid nonsupervisory production and maintenance
employees, including journeymen carpenters and apprentices, and all nonsupervisory salaried
employees working in the production area, except timekeepers , but excluding the carpenter
foreman, all journeymen maintenance pipefitters and apprentices, the pipefitter foreman,
executives, supervisory, office clerical, and professional employees, electrical employees,
printshop employees, industrial relations department employees, accounting department
employees, other than shop clerks , all engineering department employees except mechanics,
helpers, and laborers in the laboratory, cafeteria employees, and all supervisors as defined
in the amended Act.
4While the standing of the IAM as moving party in the instant proceeding is a source of
"doubt" to our dissenting colleagues, in our view it has sufficient interest to warrant con-
sideration of its motion. We say this on the basis of the participation of the IAM in the 1950
elections wherein the independent gained recertification; the showing of interest submitted
by the lAM with its petition in Case No. 39-RC-480, now pending on appeal before the Board
and in which the IAM seeks certification in the unit now represented by the Independent;
and the supporting affidavits of employees adversely affected by the Independent's conduct
which were submitted in support of this motion. It is clear, on these facts, that the IAM is
not an interloper but a party of past and present interest in the representation of these
employees which may, under these facts, for itself or as a medium for the affected em-
ployees, call the attention of the Board to practices inconsistent with the certification of the
statutory representative. Moreover, our chief concern is to protect our certification from
being abused by discriminatory practices ; not with how the abuse is brought to our attention.
104 NLRB No. 33.
HUGHES TOOL COMPANY 319
allegation that the Independent has misused, and continues to
misuse , the certification as exclusive bargaining representative
by failing to process and present grievances of all members
of the bargaining unit on a nondiscriminatory basis.' On
October 27, 1952, the Board issued notice that all parties
of interest might submit briefs, together with relevant sup-
porting material, on the issues raised by the motion of the
IAM. In accord with this notice, the Independent, the IAM,
the Employer, and the United Steelworkers of America, CIO,
herein termed the Steelworkers, filed responses.
On request of the Independent, oral argument was heard
before the Board on February 10, 1953. The Independent and
the IAM were represented by counsel and participated in the
argument. The Employer was also represented at the argument
but did not participate therein.
Upon full consideration of the motion and the record of
this proceeding, the Board makes the following findings and
conclusions.
As noted above, Locals 1 and 2 of the Independent have
been jointly certified as the representative of the employees
at the Employer' s Houston plant since 1946. During that
period, Local 1 has represented the white employees who
comprise the great majority of the plant personnel, and
Local 2 has represented the Negro workers in the plant.
During the summer of 1952, Local 1 announced that it would
henceforth require that employees who were not members of
the Independent be charged $15 for each grievance and $400
for each arbitration proceeding in which the Independent served
as their representative. A notice to this effect was posted and
charges have been made accordingly.6 Members of Local 1
SAn additional allegation in the motion consisted of a contention that the Independent
and the Employer had violated "the contract and the Texas Statutes" in that they refused
to permit an employee to resign from membership in the Independent and were continuing
to deduct dues from his wages despite the fact that he had signed a withdrawal of dues-
deduction authorization. It is clear that this allegation , the facts of which are in dispute.
concerns alleged misconduct by the Independent not directly bearing upon its responsi-
bilities under the certification. Accordingly, we deny the IAM motion to the limited extent
that it is based upon this secondary allegation.
6 The independent admits both the institution of the fee system and the fact that actual
assessments under its terms have been made . The bulletin announcing the fees was circu-
lated in the plant and read as follows:
Attention: Non- Union Members
This notice applies only to those employees who are not members of the independent
Metal Workers Union, Local #1.
In order to fairly distribute the costs of Union representation, the following charges
will be made to non- members who seek Union assistance:
Grievance-
Fifteen ($15.00) dollars for the processing of a grievance through the grievance
procedure and to the point of arbitration , including the securing of adjustment of the
grievance from the Company.
Arbitration:
Four hundred ($400.00) dollars for the processing of a grievance through the arbi-
tration procedure.
Non-members who do not pay the above fees will have the right to process their own
grievances . However , the Independent Metal Workers Union reserves the right to
insist that adjustment of such grievances strictly follow the terms of the contract and
to insist that it be present at the actual adjustment of the non-members grievance.
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are not required to pay fees for such services other than their
regular dues of $1 a month. Local 2 has not instituted the fee
system.
The IAM contends in its motion that the Independent, through
Local l's action, is seriously abusing the status of exclusive
bargaining representative accorded that organization by the
certification of the Board. In support of this contention, it
argues that the certified bargaining representative owes a
duty of nondiscriminatory representation of all employees
in the bargaining unit whether or not they are members.
This duty, the IAM asserts, is violated by a policy which
denies the services of the representative to nonmembers
except upon the payment of discriminatory fees, thereby
punishing and coercing those individuals into joining the
Independent. The Independent, on the other hand, defends the
fee system as a nondiscriminatory method of equitably sharing
the costs of representation and further contends that "prior
to the fee system, certain IAM members were weighing our
grievance men down with spurious grievances." The Independent
also asserts that the motion concerns practices the illegality
of which should be tested and litigated in unfair labor practice
proceedings rather than by motion to revoke the certification.
The Employer, while not taking any position as to the
legality of the assessment of fees by the Independent, contends
in its brief that both the bargaining relationship at the plant
and the contract now in effect between it and the Independent
would be seriously and adversely affected if the motion to
revoke were granted. It therefore requests that the Board
deny the motion or, in the alternative, that the Board, rather
than revoke the certificate, correct the illegality by a finding
and order that the Independent cease such practices in the
future. The Employer also states that, upon learning of the
existence of the fee system, it notified the Independent that
"The Company will continue to allow any individual employee
or a group of employees who desire to do so to present
grievances to it at any time and to have such grievances ad-
justed without the intervention of your Union as long as the
We urge all persons to join the Independent Metal Workers Union. We feel that the
Union can handle matters for you better than you can handle them for yourself. Union,
representation , when you are in distress, can be a vital thing . It includes:
Job Security:
Protection , through the grievance and arbitration procedure, from unfair discharge.
In this situation, the one dollar a month will cause the Union to protect your job.
Promotion:
Protection, through the grievance and arbitration procedure, from being unfairly by
passed by junior employees who do not have your fitness and ability.
Fair Pay:
Protection, through the grievance and arbitration procedure , from being erroneously
or improperly paid.
Fair Working Conditions:
Establishment, through negotiations, of a contract providing for fair wages, hours,
and conditions of employment.
We are preparing to negotiate a new contract with the Hughes Tool Company . However,
to bargain effectively with the Company and to secure a fair contract for you, we must
present a united front. We therefore urge all those employees who have not yet joined
the Union to join now and to not only join, but also to take an active part in Union affairs.
Independent Metal Workers Union
HUGHES TOOL COMPANY 321
adjustment is not inconsistent with the terms of the collective
bargaining agreement, but we will , of course , give your Union
an opportunity to be present at such adjustment ." The Employer
further stated to the Independent that " to the extent that your
... [grievance and arbitration fee system] is contrary to the
provisions of the Act and the applicable decisions , we do not
condone it and will not be a party to it."
Before dealing with the merits of the allegations made
against the Independent , it is necessary to examine the
procedural issue raised by the latter organization and by our
dissenting colleagues . In substance , that contention is that
the propriety or legality of the Independent ' s grievance
charges should be challenged in unfair labor practice pro-
ceedings rather than by the method of certificate revocation.
In support of this position , it has been asserted that the 1947
amendments to the Act eliminated any necessity for certificate
revocation actions by providing that certain labor union
activities were unfair labor practices and were tobe remedied
as such. We cannot , on full consideration , accept this con-
tention.
Only one occasion has previously arisen in which the Board
has entertained and rendered a decision on a motion to revoke
the certification of a labor organization .' In that case, Larus
& Brother Company , Inc.,8 the Board held that as the certified
union "did fail to perform its full statutory duty under the
certification," the certification would have been rescinded
had it not been voluntarily relinquished following institution
of proceedings under the motion to revoke . The Board's
decision further stated,
The Board has no express authority to remedy un-
democratic practices within the structure of union organ-
izations , but we have conceived it our duty under the
statute to see to it that any organization certified under
Section 9 (c) as the bargaining representative acted as
a genuine representative of all the employees in the
bargaining unit. (Emphasis supplied.)
The Larus case was, of course, decided in 1945, prior to
the enactment of provisions making certain union activities
unfair labor practices subject to the same remedial action
as those of employees. Contrary to the impression of our
dissenting colleagues, however, the legislative history of
the 1947 amendments does not contain any indication that
the addition of such unfair labor practice provisions under
Section 8 b) was a substitution, replacement, or cancellation
of the Board's authority to rescind certifications under
?The Board has, however, recently adjudged and declared certain certifications to be
"of no further force and effect" because of abuse of its processes with regard to the affi-
davit requirements of Section 9 (f), (g), and (h) of the Act. See, for example , Consolidated
Cigar Corporation (Local Industrial Union 80, F .T.W., CIO), 4-RC-996, Order dated Decem-
ber 19, 1952.
8 62 NLRB 1075.
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 9 although Congress was clearly aware of the existence
of the latter power,9 Yet our dissenting colleagues are appar-
ently overthrowing the Larus decision and taking either the
position (which one is not clear) that the Board cannot reach
conduct of the type here involved except by unfair labor
practice proceedings, or that the Board cannot remedy the
conduct by the revocation procedure unless it at least con-
stitutes an unfair labor practice violative of Section 8 (b)
of the Act. The Board has not, however, at any time based
its authority to revoke certifications upon the limited ground
of the unavailability of any other remedy, statutory or other-
wise. On the contrary, on a number of occasions both before
and after the passage of the 1947 amendments, the Board has
reiterated the existence of the revocation procedure as an
anticipatory curb of a variety of actions not compatible with
the status of certified bargaining representatives.10 We, there-
fore, adhere to the view that the authority of this agency to
police and rescind certifications issued under Section 9,
where the facts show abuse of the certification by the bargaining
representative, has not been circumscribed or eliminated by
the amendments to the Act.
We are of the further opinion that the existence of concurrent
remedies for the alleged misconduct under the provisions of
Section 8 (b) is not a barrier to the consideration of the IAM
motion. Whether such a concurrent remedy does exist is
undetermined. In this instance, a charge has been filed in the
Thirty-ninth Subregion by an individual who alleges that the
Independent's grievance and arbitration fees violate Section 8
9 The only comment on the Larus case, indeed , during the hearings and debates on the
1947 amendments was with respect to the practice of segregated locals. See House Con-
ference Report No. 510 on H.R. 3020, 80th Congress, p. 41.
10 See, for example, Veneer Products, Inc., 81 NLRB 492 (Herzog, Houston, and Gray
participating); Bronx County News Corporation, 89 NLRB 1567 (Herzog. Houston, Murdock,
and Styles participating); and The Coleman Company, Inc., 101 NLRB 120 (Herzog, Styles,
and Peterson participating), all dealing with allegations of racial prejudice or other denial
of equal representation. See also, Sunbeam Corporation, 89 NLRB 469, 98 NLRB 525; and
Lane Wells Company 79 NLRB 252, on revocation of certificates for reasons connected with
the affidavit filing sections of the Act. In the latter case, the Board, citing the Larus case,
made the statement that "... the Board has the power to police its own certifications and
can thereby fully effectuate the policies ofSection9 (I), (g), and (h). If changing circumstances
should give rise to a situation in which the Board for policy reasons would not issue a
certification in the first instance, it has power either on its own motion or that of the Em-
ployer to recall the certificate."
Numerous examples of the same statement of policing power over the certification appear
in cases which issued before the 1947 amendments. See, for example, Carter Manufacturing
Company, 59 NLRB 204; Southwestern Portland Cement Company, 61 NLRB 1217; Atlanta
Oak Flooring Co., 62 NLRB 973; General Motors Corporation (Chevrolet Shell Division),
62 NLRB 427; Wichita Falls Foundry & Machine Co., 69 NLRB 458; and R.K.O. Pictures,
Inc., et al., 61 NLRB 112, where it was held "... it is the duty of the exclusive represent-
ative of the employees in an appropriate bargaining unit to represent all employees therein
without hostile discrimination and with a view to the promotion of their best interests.
Should either ... [of the participating labor organizations] engage in such restrictive prac-
tices, or otherwise circumvent the objectives of the Board inherent in this decision, the
Board will not regard itself as precluded, upon consideration of the circumstances thus
presented, from taking appropriate remedial action, including either a redetermination of
the bargaining unit or revocation of the certification herein."
HUGHES TOOL COMPANY 323
(b) (1) (A):u The disposition of this charge and the question
whether a complaint should be issued , litigated , and brought
to judgment before the Board is a matter which , by statute,
is within the exclusive province of the autonomous General
Counsel." Under these circumstances , it would be inadvisable
and presumptuous for the Board now to prejudge the merits
of the issues raised by that charge and to decline or accept
the IAM motion accordingly . We are therefore not persuaded
that it would be either wise or equitable to disregard the
merits of this motion on the ground that it may or may not
be the subject of a future complaint which might or might
not result in a remedial order. Moreover , to accept such
a disposition would be to find that only matters subject to the
provisions of Section 8 (b) constitute sufficient abuse of the
duties of the certified bargaining agent to warrant revocation
of the certificate . On the contrary, we believe that the negative
prohibitions upon certain conduct by labor organizations found
in Section 8 (b) are not wholly interchangeable with, and
equivalent to, the affirmative duties arising under a certi-
fication through the processes of Section 9.
Accordingly, we are not, as our dissenting colleagues
assert, testing the "legality" of the Independent ' s conduct
in this proceeding . While that question would be the issue
in a prosecution under Section 8 (b) of the Act, the question
in the instant proceeding is whether or not the conduct is
incompatible with the status and obligations of a certified
bargaining representative . It is this vital difference , and not
any intent on the part of the majority of this Board to "pre-
clude " judicial review , which is responsible for this proceeding
not falling within the specific provisions for court review
contained in Section 10 which relate to unfair labor practice
decisions . Moreover , to assume as our dissenting colleagues
do, that this action necessarily deprives the Independent
of court review seems somewhat premature in view of a
recent court decision , now on appeal , concerning Board
revocation of other certificates for reasons concerning the
affidavit requirements of the Act. ' Even assuming the position
taken by the minority, however , we firmly believe that the
fact that Board action in representation cases is ordinarily
not directly reviewable in court should not and indeed has
not deterred the Board from taking such action where it is
warranted .14 The fact that the scheme of the statute makes
11 A charge, docketed as 39- CB-39, was filed by an individual on July 7, 1952 , alleging
that the same conduct of the independent at issue herein violated Section 8 (b) (1) (A) and
Section 8 (b) (2). This charge was withdrawn on October 16, and a new charge alleging the
same conduct as a violation of Section 8 (b) (1) (A) was filed on October 20, 1952. This
charge, docketed as 39-CB- 44, has not, to the present time, been either dismissed or
made the subject of a complaint.
12Cf. Times Square Stores Corporation , 79 NLRB 361.
13 See American Communications Association v . Paul M . Herzog, 110 F. Supp. 220(D .C., D.C.).
i4See, for example, United Aircraft Corporation, Pratt & Whitney Aircraft Division, 103
NLRB 102, where the Board denied certification to a union because of certain preelection
conduct found inimical to an atmosphere of free choice by the employees concerned. Our
dissenting colleagues joined in this decision , although it is clear that the union affected
adversely by that action had no more rights of court appeal than the Independent herein.
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
specific provision for review of final orders in unfair labor
practice cases alone is not by direction of this Board but
by the Congress.
Even assuming that the alleged misconduct in the instant
case were remediable under Section 8 (b), the Board does
not consider that the mere existence of another method of
correcting the conduct is sufficient reason to deny the instant
motion. Although revocation of certificates is a method
which is sparingly used, it is one which may be best suited
to curb certain types of conduct. The period of time which
must necessarily pass before the alleged wrong is corrected
as well as the minimum remedy necessary to adjust a situation
may appreciably affect the choice and value of the remedial
action. In a comparable situation, the Board has consistently
allowed a union which is the victim of discriminatory conduct
during an election to contest the results by filing objections
to the election in a supplemental representation proceeding,
to file unfair labor practice charges, or to seek both remedies.
Arbitrarily to allow less choice in an instance dealing with
conduct such as that alleged herein would be without legal or
equitable basis.
We turn, therefore, to a consideration of the merits of
the motion. The contention of the IAM, as noted, is that the
fees charged nonmembers for representation by the Inde-
pendent in grievance and arbitration proceedings constitute
a denial of equal representation and therefore an abuse of
the certification. The defense of the Independent, reduced
to its simple terms, is that it does not refuse to represent
any employee in the bargaining unit, but merely requires
the payment of fees to equalize the financial burden arising
from the expenses of those proceedings." The issue, accord-
ingly, is whether the imposition of these fees is in derogation
of the duties of the bargaining representative to provide
equal representation to all employees in the unit, or is only
a justifiable measure to control and discourage "free riders."
The question which must first be answered is what relation-
ship the Independent's conduct bears to the duties and responsi-
bilities of a certified bargaining representative. It is patent
that all actions involving disparate action towards members
and nonmembers of a certified labor organization are not,
p pr se, acts in derogation of the position of exclusive bargaining
representative. Thus, a union might conceivably offer certain
social or lodge facilities to members and deny them to
nonmembers without abusing any duty arising under the
certification and the Act. On the other hand, such a union
could not assess nonmembers for costs arising from contract
negotiations for the latter are the exclusive duty and pre-
is As previously stated , the Independent further claims that prior to institution of the
fees, JAM members were filing spurious grievances . The independent also argues that the
petitioning LAM, itself, has attempted to secure financial support from nonmembers in
shops where it is the representative by use of an "agency shop" system . As the facts
concerning the "agency shop" are not before the Board or at issue herein, the Board does
not consider this contention material or relevant.
HUGHES TOOL COMPANY 325
rogative of the certified representative which the nonmember
minority is both entitled to and bound under. It is necessary,
therefore, in ascertaining whether the Independent's grievance
policies are within a prohibited zone, to examine the statutory
source of the certified union's status and authority.
Section 9 (a) of the Act, as amended, provides:
Representatives designated or selected for the purposes
of collective bargaining by the majority of the employees
in a unit appropriate for such purposes, shall be the
exclusive representatives of all the employees in such
unit for the purposes of collective bargaining in respect
to rates of pay, wages, hours of employment, or other con-
ditions of employment: Provided, That any individual em-
ployee or a group of employees shall have the right at any
time to present grievances to their employer and to have
such grievances adjusted, without the intervention of the
bargaining representative, as long as the adjustment is not
inconsistent with the terms of a collective-bargaining con-
tract or agreement then in effect: Provided further, That the
bargaining representative has been given opportunity tobe
present at such adjustment. (Emphasis supplied.)
The Board has, accordingly, observed that an organization
which is granted exclusive bargaining rights under Section 9
has, in return, assumed the basic responsibility to act as a
"genuine representative of all the employees in the bargaining
unit."16 (Emphasis supplied.) To hold otherwise, in view of
the language of Section 9, would be to allow the exclusive
position of the representative obtained through the authority
of the Act to be used in a manner detrimental to the very
employees the statute is designed to protect.
In the Larus case , involving a racial segregation situation,
the Board found that this basic responsibility had been abused
where the "certified union used its statutory powers to ex-
clusive representative to compel dues payments and continuance
of membership, with respect to an organization [a Negro
local] which was not the certified union." It noted the Supreme
Court decisions in the Steele, Wallace, and Tunstall cases,"'
and stated that "These holdings give support to many decisions
of this Board in which we have said that there is a duty on
the statutory bargaining agent to represent all members of the
unit equally and without discrimination, on the basis of race,
color, or creed." (Emphasis supplied.)
The duty of equal representation, however, which is inherent
in the exclusive representative status accorded by the statute,
is not concerned alone with questions of race, color, or creed.
The certified representative's exclusive authority to bargain
and represent may be achieved by virtue of the support of a
16Larus & Bros. Company , Inc-, supr.
lTSteele v. Louisville & N.R. Co., et al ., 65 S. Ct . 227; Wallace Corp . v. N.L.R .B., 323
U.S. 248; Tunstall v. Brotherhood of Locomotive Firemen and Enginemen, Ocean Lodge
No. 76, et al., 65 S. Ct. 236.
283230 0 - 54 - 22
326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bare majority of the employees in the appropriate unit.
Discrimination in the performance of the duties of the repre-
sentative designed to deny equal treatment to those of the
minority is to subvert the privilege and rights granted by the
statute. Whether such discrimination is based on union member-
ship or the lack thereof, rather than on considerations of
race, creed, or color is, in our opinion, irrelevant.
We believe it is also clear that the presentation and adjust-
ment of grievances is an activity which is subject to this
requirement of nondiscriminatory representation by the certi-
fied union. The prominent part which grievance handling plays
in the representation of employees is readily apparent. As
the Board has stated previously, "Grievances are usually more
than mere personal dissatisfactions or complaints of employees
and their adjustment frequently involves the interpretation and
application of the terms of a contract or otherwise affects
the terms and conditions of employment not covered by a
contract."18 The adjustment of grievances, viewed in the larger
aspect, constitutes, to a great degree, the actual administration
of a collective -bargaining contract.
The importance of grievance presentation and adjustment as
a part of the representation of employees is also noted in the
statute. Section 2 (5) of the Act observes that a labor organi-
zation exists for the purpose, among others, of dealing with
employers concerning grievance s.19 Section 9 (a), as will be
more fully discussed hereinafter, specifically recognizes the
critical position grievance presentation and adjustment occupies
in the relationship between the employee and the employer,
the representative and the employer, and the employee and the
representative. We find, therefore, in accord with the views
of the Fifth Circuit court that "The handling of grievances
... is part of the business (a certified union] has assumed and
must be done with impartiality." m
The question is posed , however, as to whether the 1947
amendments to the Act and, in particular, to Section 9 (a)
is Bethlehem Steel Company , Shipbuilding Division, 89 NLRB 341 at 344.
l9Section 2 (5) states , in full. "The term 'labor organization ' means any organization
of any kind , or any agency or employee representation committee or plan , in which em-
ployees participate and which exists for the purpose , in whole or in part, of dealing with
employees concerning grievances , labor disputes , wages, rates of pay , hours of employment,
or conditions of work."
20 Hughes Tool Company v . N.L.R.B ., 147 F . 2d 69 (C. A. 5, 1945), dealing with the issues
of whether an employee may call in a representative other than the certified union to repre-
sent him in grievance procedures and the scope of the certified union 's right to participate
in presentation and adjustment of grievances brought by individuals . At the Board hearing,
however , an offer of proof to the effect that the certified union had refused to handle griev-
ances filed by members of other unions was rejected . On this subsidiary point the court
noted that "We think a meritorious grievance is entitled , if desired , to the aid and counte-
nance of the bargaining representative If the griever is a member of another union and can-
not be represented by his own union , it is the more necessary that he have the aid of the
representative." On the same point, the court added , "When the [certified union] accepted
certification as the bargaining representative for the group, it accepted a trust . It became
bound to represent equally and in good faith the interests of the whole group [citing the
Steele case, supra] ... It ought not discriminate in the execution of its duties between its own
members and employees who belong to another union or to no union."
HUGHES TOOL COMPANY 327
did not diminish the certified representative's responsibility
in this regard. Under Section 9 (a) of the Wagner Act, the
individual employee or group of employees in a unit repre-
sented by a certified union was granted "the right at any
time to present grievances to their employer" notwithstanding
the otherwise exclusive status of the certified representative
on matters touching on collective bargaining. The same section
was amended in 1947 to provide further that the individual
employee or group of employees had the right "to have such
grievances adjusted, without the intervention of the bargaining
representative, as long as the adjustment is not inconsistent
with the terms of a collective bargaining contractor agreement
then in effect" and providing "that the bargaining representative
has been given opportunity to be present at such adjustment."
Despite the fact that the statute, by force of these provisos
in Section 9 (a), grants the certified representative less than
an exclusive position in the handling of grievances, we do not
consider that the certified union's responsibility concerning
those grievances on which its aid is requested has been
lessened. It is clear that Congress, in amending the section,
was concerned with the dual problem of an individual employee's
right to choose to process a grievance without interference
by the representative and the representative' s interest in
preserving intact the terms and conditions of its contract
and its right to bargain about such terms.n This is a distinctly
different matter from that of the representative' s responsi-
bility insofar as those grievances which are tendered it by
the voluntary act of the employee. We, accordingly, find that
the amended Section 9 (a) still gives rise to a duty by labor
organizations, as the exclusive representative in grievance
proceedings (other than those processed through preference
by the individual himself), impartially and without discrimi-
nation to accept and process all grievances placed in its
hands by the employees it represents.
The question thus finally becomes whether or not the
grievance and arbitration fees charged herein are in conflict
with that duty to represent employees in grievance proceedings
without discrimination. We find the answer to be in the
affirmative. As we have noted above, all employees in an
appropriate unit are entitled, upon their request, to the
impartial assistance of the certified representative in the
filing and adjustment of grievances. The duty of the certified
representative to render such impartial assistance is clearly
evaded where some employees are forced to pay a price for
such help or to forego it entirely. The latter result is precisely
what occurs under the fee schedule set up by the Independent.
There are obvious reasons why the assistance of the certified
labor organization is of great value to an employee with a
n See Senate Report No. 105 on S. 1126, 80th Congress, "'The amendment contained in the
revised proviso for Section 9 ( a) clarified the right of individual employees or groups of
employees to present grievances ... The revised language would make it clear that the
employee's right to present grievances exists independently of the rights of the bargaining
representative , if the bargaining representative has been given an opportunity to be present
at the adjustment .... "
328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
legitimate grievance. The established procedures and ex-
perienced personnel which the union has at hand;22 the background
of preceding cases and knowledge of the contract stemming
from participation in its negotiation; and the very prestige
and authority of the union itself are all factors which may
well mean the difference between the success and failure of
the grievance. nWhere a certified bargaining representative
exists, it has been held that the employees are not entitled
to be represented in grievance proceedings by any labor
organization other than the certificate holder.' The defense
of the Independent--that it does not "refuse" such assistance
as certified representative but merely requires payment for
it--begs the question. It is the employee's option alone as
to whether the services of the representative are to be used
in his behalf. By demanding the payment of a $15 or $400
fee by nonmembers as a prerequisite to their obtaining the
assistance they are entitled to as employees in the unit and
refusing the representation if not paid, the Independent has
abused the privileged status it occupies as certified repre-
sentative by using that status as a license to grant or deny
representation according to its own arbitrary standards.
The Independent further asserts that its fees are justified
as a legitimate method of solving the "free rider" problem
by an equitable assessment of fees from nonmembers who
"elect" to utilize the union's facilities. We find no merit
in this contention. While the question of employees who
accept representation without sharing in its expenses is a
historic and troublesome problem we do not consider that
the measures placed in effect by the Independent present
a permissible solution.' The Independent, in realistic terms,
is claiming the privilege of refusing representation to some
of the employees in a group except as a hired agent. Thus,
it will assist, in grievance proceedings, in enforcement of
2The Independent , in this instance , has successfully negotiated the inclusion of a compre-
hensive grievance system in its contract. Article IX of that agreement provides for a three-
step procedure with provision for arbitration thereafter . The grievance is first presented
to the foreman, subforeman, or grievance man in the section in which it arises. If unsettled
at that stage , it is presented to the chief grievance man for the shift who attempts to settle
the matter with the general foreman or division head. If still unsettled , it is then presented
to the grievance committee and the corresponding management committee . The Independent,
by the terms of the contract , appoints the grievance man (in the first step) for each section
of each shift, the chief grievance man (for the second step) for each shift, and the grievance
committee for the final step . All grievance representatives of the Independent are guaranteed
full pay, by the contract, for all working time spent away from their duties on investigation
and presentation of grievances.
22 There is an additional question as to whether an employer would be in violation of the
Act if he refused to adjust or discuss the individual grievances of an employee or group of
employees where a certified union represents a majority. The General Counsel, in Adminis-
trative Decision of the General Counsel on Appeal, Case No. 418, made public November 3,
1952, indicated a view that such refusal would not violate the Act and that he would not issue
a complaint under such circumstances.
uSee Hughes Tool Company v. N.L.R.B., supr
2Indeed, the record affords some justification for doubting the assertion that the Inde-
pendent's fees amount to a "fair and equitable" sharing of costs. Membership in the Inde-
pendent involves the payment of Si a month dues which presumably covers the costs of
not only grievance and arbitration proceedings but all other facets of union business and
benefits . The independent alludes to the fact that its last arbitration case brought an ex-
(Continued)
HUGHES TOOL COMPANY 329
rights accruing to an employee under a collective -bargaining
contract only if that employee will join its organization or
make a substantial payment . The Independent is barred, by
the law of the State of Texas, from obtaining compulsory
membership ." We do not believe that, in the alternative,
it may require a fee from nonmember employees for services
which are due the latter as a matter of right . By adopting
such a procedure , the Independent has, ih effect , taken the
position that it will only represent its members in the important
area of contract administration. V
Finally, we do not consider the contention of the Independent
that its policy was precipitated by "spurious grievances"
filed by the IAM adherents in the plant in an attempt to clog
the grievance machinery affords justification for its position.
It is clear that the Independent , or any other certified union,
may refuse to process grievances presented to it where
they lack merit.
Accordingly , we find that the Independent , through the
action of its Local 1 in requiring the payment of $15 and
$400 for handling grievances or arbitration involving non-
members, has engaged in conduct constituting a clear evasion
and abuse of the standard of conduct imposed upon the exclusive
representative under Section 9 (a) of the Act . We further
find that this conduct is sufficient ground for revocation of
the certification of the Independent and its Locals 1 and 2
as representative of these employees.
In view of the special circumstances present in this case,
however, including the fact that this is a case of first impression
and that the joint holder of the certificate , Local 2, has not
engaged in the discriminatory action, we shall not revoke
the certification of the Independent without first affording
that organization an opportunity to correct its conduct. If
25 (Continuation)
penditure of $1,000 . Arbitration , however , generally occurs only over problems of con-
siderable importance to the union and employees as a whole , and may be regarded as a
group project rather than one carried out for the assistance of an individual alone. More-
over , we note with regard to grievance procedures that the contract in effect between the
Independent and the Employer guarantees full pay to union representatives for working
tittle lost in the processing of grievances.
26 The Texas Statutes , V.T.C.S. 5207 ( a) provide, in part:
Any contract which requires or prescribes that employees or applicants for employ-
ment in order to work for an employer shall or shall not be or remain members of a
labor union, shall be null and void and against public policy ... .
Section 14 (b) of the Labor Management Relations Act of 1947 provides:
Nothing in this Act shall be construed as authorizing the execution or application
of agreements requiring membership in a labor organization as a condition of employ-
ment in any State or Territory in which such execution or application is prohibited by
State or Territorial law.
27 The Board and the courts have consistently regarded a labor union which is recognized
or has a contract for representation of its members only as having a status inferior to and
less than that contemplated by Section 9 of the Act. See McQuay- Norris Mfg. Co. v. N.L.R.B.,
116 F . 2d 748 (C.A. 7, 1940) enforcing 21 NLRB 709 , cert . denied 313 U.S. 565 . In accord
with this position is the Board 's long- standing ruling that a members -only contract will
not bar an election upon a petition filed during its term. See , for example, Massell Company,
89 NLRB 409.
330 DECISIONS OF NATIONAL LABOR RELATIONS HOARD
the Independent anc its Local 1 immediately discontinue the
practices complained of herein and post appropriate notices
to that effect within ten (10 ) days after receipt of this Decision
notifying all employees that the Independent and its Local 1
will henceforth , on request , receive and process all meri-
torious grievances without special charge whether or not
they - are filed by members or nonmembers , we shall, by
further order , deny the motion to revoke . If such action is
not forthcoming , however , we shall order that the certifi-
cation of the Independent and its Locals 1 and 2 be rescinded.
We shall further direct that the Regional Director for the
Sixteenth Region file a report with the Board at Washington,
D. C., within fifteen ( 15) days from the date of this Decision,
Order, and Direction , stating what action has been taken by
the Independent and its Local 1 in compliance herewith.
ORDER
IT IS HEREBY ORDERED that the certification of the
Independent Metal Workers Union , Locals 1 and 2, issued
in Cases Nos . 16-R-1489 and 39-RC-133, shall be revoked
unless the Independent Metal Workers Union and its Local 1
discontinue , immediately upon receipt of this Order, the
practice of charging nonmembers $ 15 for the processing of
a grievance and $400 for the processing of an arbitration
case, and unless the Independent Metal Workers Union and
its Local 1 within ten ( 10) days from the date of this Order
post notices at their business offices and meeting halls at_
Houston, Texas , notifying all employees in the unit represented
by those organizations that the Independent Metal Workers
Union and its Local 1 have discontinued such fees and will
henceforth , on request , receive and process all meritorious
grievances of employees within the unit without special
charge whether or not they originate from members or
nonmembers . Such notices , when posted, shall be maintained
by the Independent Metal Workers Union and its Local 1
for a period of thirty ( 30) consecutive days thereafter, and
reasonable steps shall be taken by the Independent Metal
Workers Union and its Local 1, to insure that said notices
are not altered, defaced, or covered by any other material.
Signed copies of such notices shall also be sent to the Regional
Director for the Sixteenth Region, for posting, the Employer
willing, at the Hughes Tool Company Houston plant in the
places where notices to employees are customarily posted.
DIRECTION
The Regional Director for the Sixteenth Region is hereby
directed to file a written report with the Board, at Washington,
D.C., within fifteen ( 15) days from the date of this Decision,
Order, and Direction , stating what action has been taken by
the Independent Metal Workers Union and its Local 1 in
compliance with the terms of said Decision , Order, and
Direction.
HUGHES TOOL COMPANY 331
Chairman Herzog and Member Peterson, dissenting:
Without passing, one way or the other, upon the propriety
of the Independent's conduct, we cannot agree with our
colleagues that this is an appropriate method by which to
test the legality of that conduct. When Congress amended
the National Labor Relations Act in 1947, it sought to proscribe
certain union behavior which it considered inimical to sound
collective bargaining. It gave no license to the Board to
prohibit other conduct which might appear to us to interfere
with employees' rights. Yet the majority here proposes the
unusual step of forcing the Independent to abandon this
conduct without first determining, through the pending unfair
labor practice proceeding, whether or not it actually violates
any of the standards which Congress established.28
Furthermore, this method of outlawing the conduct has the
disadvantage of depriving the Independent of court review of
the Board's action. If the Independent resists the mandate of
the majority, it immediately loses its certificate, and its
status as bargaining agent presumably is subject to immediate
challenge by the IAM in an election. It appears to us that
where the illegality of a union's conduct is as much in doubt
as it is here, and where the case, even if it were presented
to the Board in an unfair labor practice proceeding, would
admittedly be one of first impression, we should not either
anticipate the issuance of a complaint by the General Coun-
sel29 or preclude review by the courts.
We are also doubtful about the standing of the IAM to raise
this question. It is not a party to any contract with the Company,
but is simply seeking to disrupt the existing bargaining re-
lationship for its own ends. Those ends are, it would seem,
to supplant the Independent as the representative of some
of these employees, without awaiting what would otherwise
be an appropriate time to do so, by securing revocation of
its incumbent rival's certification. 30
28The cases cited by the majority which deal with noncompliance or fraudulent compliance
with Section 9 (f), (g), and (h) of the Act are inapplicable here. They rest on the different
premise that the union fraudulently induced action by the Board which the Board, had the
true facts been known, would have had no authority to take.
We do not here propose "overthrowing" the Larus decision, but merely question the
wisdom of extending its technique in practice , for the first time in 8 years , to this very
different set of facts.
29A charge alleging this very conduct as a violation of the Act is still pending in the
Regional Office (39-CB-44).
The Board's latest order to the Company to bargain with the Independent issued as
recently as July 1952 (100 NLRB 208). The IAM has since appealed the Regional Director's
dismissal of its petition for a new election.