Intalco Aluminum Corp.

National Labor Relations Board - Board Decisions

Mar 4, 1969

174 N.L.R.B. 975 (N.L.R.B. 1969)

INTALCO ALUMINUM CORP
Intalco Aluminum Corporation and Aluminum
Workers International Union , AFL-CIO,'
Petitioner . Case 19-RC-4812
March 4, 1969
DECISION AND DIRECTION OF
ELECTION
Upon a petition duly filed on April 24,, 1968,
under Section 9(c) of the National Labor Relations
Act, as amended, a hearing was held before Hearing
Officer Henry L. Chiles, Jr. 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, including the
briefs filed by the parties, the National Labor
Relations 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 organization involved claims to
represent certain employees of the Employer.
3. 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
4. In accordance with the stipulation of the
parties, we find that the following employees of the
Employer constitute a unit appropriate for the
purposes of collective bargaining
All production and maintenance employees
including truckdrivers at the Employer's Ferndale,
Washington, plant, but excluding all office clerical
employees, plant clerical employees, laboratory
and technical employees, professional employees,
guards, watchmen and supervisors as defined in
the National Labor Relations Act, as amended.
5. The Employer extended recognition to the
IAM on March 17, 1966, following a card check
conducted by the Washington State Department of
Labor and Industries and a certification by that
department that the IAM represented a majority of
the employees in an appropriate unit. A
collective-bargaining contract, containing a union
security clause, was executed on April 14, 1966, with
an expiration date of July 1, 1968 On March 18,
1966, the Aluminum Workers filed a representation
petition, and the Aluminum Workers, the United
'Hereinafter also referred to as the Aluminum Workers
'Bellingham Metal Trades Council, Allied Industries Division,
hereinafter referred to as the Metal Trades Council , was permitted to
intervene in this proceeding on the basis of a showing of interest supported
by union authorization cards International Association of Machinists and
Aerospace Workers Local Lodge 2250, AFL-CIO, International
Association of Machinists and Aerospace Workers , AFL-CIO, hereinafter
referred to as the IAM , intervened on the basis of a contract interest in the
employees involved herein
975
Steelworkers of America, AFL-CIO, and the Metal
Trades Council filed 8(a)(2) charges. Thereafter, on
February 21, 1968, the Board found that the card
check was carried out without affording the other
unions, who were known by the Employer and the
IAM to be engaged in organizing the employees
involved, an opportunity to participate. Since some
of the cards relied on by the IAM to show majority
status were signed by employees who also signed
cards for other unions, removal of these cards left
the IAM without a majority showing. Accordingly,
apart from considerations of good faith, the Board
concluded that the Employer's recognition of the
IAM violated Section 8(a)(1) and (2) of the Act.3
The Board ordered, inter alia , disgorgement of dues
and initiation fees exacted under the illegal contract
The case is now pending enforcement before the U.
S. Court of Appeals for the Ninth Circuit.
In the instant proceeding, the Petitioner and the
Metal Trades Council requested in writing that the
Regional Director proceed with the representation
case notwithstanding the continued litigation of the
unfair labor practice case. In this document the
unions agreed to waive objections based on conduct
occurring prior to the filing of the petition. They
also agreed that the IAM may appear on the ballot
in any election directed and may be certified if it
wins and meritorious objections are not filed The
document further specifies that if the [AM is
certified, "no further action be taken to enforce
those portions of the Board's Order relating to the
Section 8(a)(2) findings in the unfair labor practice
proceeding."
The Employer and the IAM urge the Board to
reject the waiver and request to proceed and to
follow its longstanding rule of declining to direct an
election while an 8(a)(2) case involving the same
unit of employees is pending They argue that the
disgorgement of dues remedy in the Board's
outstanding Order distinguishes this case from
Carlson,4 and makes an immediate election
untenable because the disgorgement feature of the
Order would allow the other unions to employ
unfair campaign tactics They assert that the appeal
for votes against incumbent IAM could effectively
claim that if Petitioner wins the employees will be
reimbursed in the amount of $150 to $200 Should
Petitioner lose [apparently meaning if the IAM
wins] they would not receive such reimbursement.
Petitioner and the Metal Trades Council contend
that the waiver brings this case under the Carlson
case and "the fact that reimbursement of the
illegally checked-off dues and initiation fees is
'Intalco Aluminum Corporation, 169 NLRB No 136
'Carlson Furniture Industries, Inc , 157 NLRB 851 In that case the
Board accepted a written request to proceed where the remedy for the
8(a)(2) violation merely required the withdrawal and withholding of
recognition until the assisted union should establish its representative status
by a Board certification As the 8(a)(2) violation, and the remedy, rested
upon the unresolved question concerning representation, and this could be
determined by employee balloting, an immediate election was deemed
appropriate
174 NLRB No. 122
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
involved in this case and not in Carlson is
immaterial." Petitioner further contends that the
waiver does not, as the Employer and the IAM
urge, place Petitioner in the position of being able to
campaign with the argument that a vote for it will
carry financial rewards (repayment of dues and fees
paid to the IAM). In Petitioner's view, it
. . . has at no time ever offered to forego
reimbursement of back dues nor could it do so
even if it so desired. Enforcement . is now in
the hands of the Board and it is for the Board and
no one else to determine whether the enforcement
proceedings . . shall or shall not proceed
As previously indicated, the Board's normal
practice is not to process representation petitions at
a time when Section 8(a)(2) proceedings relating to
the employees sought in the petition are pending.
However, upon consideration of all the
circumstances in this case, we find that a further
delay in affording these employees an opportunity to
exercise their right to choose a representative is not
warranted and that the desires of the employees may
best be determined in an immediate election subject
to the conditions set forth in the request signed by
Petitioner and the Metal Trades Council. as
hereinafter limited.
Insofar as the language of the request to proceed
may be read as a waiver of enforcement of the
outstanding disgorgement order if the IAM wins the
election, such an agreement can have an impact only
upon any such rights as the waiving parties thereto
may have in the related complaint proceeding.
Neither their waiver, nor the direction of an election
in this case, affects the Board's right to seek
enforcement of the disgorgement or any other
portion of its order in the 8(a)(2) case, and our
acceptance of the request to proceed is not to be so
construed.' Thus, contrary to our dissenting
colleague, the direction of an election in this case
will not affect the reimbursement of moneys
collected under the illegal contract.6 Accordingly, we
find no merit in the arguments advanced by the
Employer and the IAM.
'Of course, if the IAM wins the election, and is certified , the Employer's
obligation under the portion of the Board's Order requiring withdrawal and
withholding of recognition from the IAM will terminate on the date of
certification However, the portion of the Order requiring the restitution of
dues and other money unlawfully exacted under the illegal contract would
not be expunged by such certification if either Petitioner or the Metal
Trades Council wins and is certified , the "withdraw and withhold " portion
of the Order will be satisfied by honoring the certification and withdrawing
recognition from the IAM Again, the Employer will remain liable for
reimbursement of money unlawfully exacted under the illegal contract
'Our dissenting colleague argues that we are "treating a Carlson waiver
as a simple request to proceed" and that , in so doing , we are not giving
effect to the intendment of the exception to a blocking charge which has
been invoked However , we do not accept our colleague's interpretation of
the requirements for this procedure The specified condition to a request to
proceed as it relates to the concurrent complaint case is the affirmative
indication by the petitioner-charging party of a willingness to withdraw an
8(a)(2) assistance charge in the event the subject union is certified
Approval of any withdrawal remains within the Board 's discretion Thus,
we are faced not with an agreement of the parties which we must accept or
[Direction of Election' omitted from publication.]
MEMBER FANNING, dissenting
I would not direct an election in this proceeding
at this time.
The Board's general policy is not to direct an
election when an 8(a )(2) proceeding is outstanding
The basic reason for that salutary position is that it
is highly unlikely that a fair election can be
conducted until the effects of the unfair labor
practice are remedied. The timing of an election is a
matter for the Board to decide The doctrine of the
Carlson case is that the Board will leave this
decision to one of the parties to the election by not
enforcing part of an 8(a)(2) order. I have serious
doubts about the correctness of such a rule
But even were I to accept the rule as one proper
for some cases, I do not think this is a case for its
application. The Carlson case did not'involve the
reimbursement of dues under the illegal contract.
This case does. The effect of a Carlson waiver here
is to tell the employees that if they choose a union
other than the incumbent they will each receive
about $150 in dues improperly collected. If the
incumbent prevails, they will not This is not, in my
view, a situation in which a fair election can be held
Apparently my colleagues have some qualms
about the propriety of applying Carlson in this case
because they are treating a Carlson waiver as a
simple request to proceed, and accepting so much of
it as they think suitable for this case As I read the
Board's published manual, it states that requests to
proceed will not be honored in 8(a)(2) cases. (Sect.
11730.4a) An exception is then made in the next
subsection for those situations in which the
petitioner indicates willingness to withdraw the
8(a)(2) charge should the assisted union prevail in an
election. That language, together with the language
of Carlson itself, suggests to me that the Carlson
procedure is intended to dispose of an entire
situation, not that after Carlson is sought, the Board
will take or leave as much of it as it sees fit I
prefer, if we are not going to resolve the entire
proceeding, to adhere to the prohibition on requests
to proceed in 8(a)(2) cases.
For all these reasons, I would not accept a waiver
in this case, but would stay any election until the
8(a)(2) issues have been finally resolved.
reject in Coto, but with a request by Petitioner and one of the Intervenors,
to exercise in a particular manner our undisputed discretion with respect to
the timing of an election In entertaining that request, the Board is hardly
required to endorse all that a petitioning union is willing to "waive " The
question of when and under what circumstances to direct an election in the
face of unresolved 8(a)(2) charges remains one for the Board to decide
'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 19 within 7 days after 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 Excelsior Underwear Inc , 156 NLRB
1236