International Harvester Co.

National Labor Relations Board - Board Decisions

May 13, 1944

56 N.L.R.B. 502 (N.L.R.B. 1944)

In the Matter OfINTERNATIONAL HARVESTER COMPANY, FARMALL WORKS
and' UNITED FARM'EQUIPMENT AND METAL WORKERS OF AMERICA,
C.I.O. , - 1 )
Case No. 13-R-259.-Decided May 13, 1944
Messrs. Robert E. Dickman and W. J. Reilly, of Chicago, Ill., for the
Company.
Meyers & Meyers, by Mr. Ben Meyers, of Chicago, Ill., for the C. I. O.
Mr. David Sigman, of Milwaukee, Wis.',-and Mr. Douglas J. Hanna,
of Davenport, Iowa, for the A. F. L.'
Mr. Seymour J. Spelman, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by United Farm Equipment and Metal
Workers of America, C. I. 0., herein called the C. I. 0., alleging that a
question affecting commerce had arisen concerning the representation
of employees of International Harvester Company, Farmall Works,
Rock Island, Illinois, herein called the Company, the National Labor
Relations Board provided for an appropriate hearing upon due notice
before Jack G. Evans, Trial Examiner. - Said hearing was held at
Davenport, Iowa, on April 17, 1944. The Company, the C.' I. 0., and
Federal Labor Union #22657, A. F. L., herein called the ' A. F. L.,
,appeared and-participated. All parties were afforded full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues. The Trial Examiner reserved ruling
upon the motion of the A. F. L. to 'dismiss the petition. For reasons
hereinafter' set forth, said' motion is hereby denied. The Trial Ex-
aminer's rulings made at the hearing are free from prejudicial error
and are hereby affirmed. All parties were afforded an opportunity Ito
file briefs with the Board.
56 N. L. R. B., No. 96. • - '
502 ,
INTERNATIONAL HARVESTER COMPANY 503
Upon the entire record in'the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY _
International Harvester Company, a New Jersey corporation with
'principal offices in Chicago, Illinois, is engaged in the manufacture,
sale, and distribution of trucks, farm implements, and various_ war
products at several plants in various parts of the United States. The
present' proceeding involves only the -Company's Farmall Works at
Rock Island, Illinois. In the operation of the Farrnall'Works during
1943, the Company used raw materials valued in excess of $1,000,000,
.more than 5 percent of which was received from points outside the
State of Illinois. During the same period, the finished products pro-
duced at the Farmall Works exceeded $1,000,000 in value,-of which 95
percent was shipped to'points outside the State of Illinois.
The Company concedes, and we find, that it is engaged in commerce
at its Farmall Works within the meaning' of the National Labor Re-
lations Act. ,
IT. THE ORGANIZATIONS INVOLVED,
United Farm-Equipment and Metal Workers of America, affiliated
with the Congress of Industrial Organizations, is a labor organization
admitting to membership employees of the Company. '
Federal Labor Union #22657, affiliated with the American Feder-
ation of Labor, is a.labor organization admitting to membership em-
.ployees'of the Company:
III. THE QUESTION CONCERNING REPRESENTATION
On or about December 30,'1943, the C. I. O. advised the Company
that it represented a majority of the employees at the Farmall Works,
and requested recognition as their exclusive bargaining representa-
tive. The Company rejected the request on the ground that it 'was
under a contract with the A. F. L. covering the aforesaid' employees.
On May 29, 1942, the A. F. L. and the Company entered into a col-
lective bargaining agreement covering all production and mainte-
nance employees (with certain exceptions) at theFarmall Works. The
agreement contains a maintenance-of-membership clause,' and pro-
vides that it shall remain in effect for the duration of the war, but
not less than 1 year, and "thereafter until thirty (30) days shall have
elapsed following the giving of written notice by one party to the
1 The maintenance -of-membership clause was included . in,the agreement pursuant to an
Order of the National War Labor Board. ' NDMB 'Cases Nos. 4, 4-A, and 89, consolidataed
(April, 15, 1942). -
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ether of a desire for changes or termination."' The A. F. L. contends
that this agreement constitutes a bar to the present proceedings. We
find no merit in this contention. It will be noted that inasmuch, as
more than 1 year has elapsed since its execution, the contract is now,
one of indefinite duration. We have repeatedly held that such a
contract constitutes no bar to a representation proceeding instituted
after that contract has been in effect for a year or more .2 Accord-
ingly, we find that the instant contract constitutes no bar to a present
-determination of representatives.
The A. F. L. further contends that the petition should be dismissed
because of an alleged representation made by the C. I. O. to the
National War Labor Board in 1942 to the effect that it would not
attempt to organize the employees in the Company's Farmall Works.
an 1941, we certified the C. I. O. as the exclusive bargaining represen-
tative of four seperate units of production and maintenance em-
ployees at four plants of the Company.3 In the same year, we certified
the A. F. L. in similar units at two other plants of the Company,' one
of which--is the Farmall Works, the sole plant involved herein.
Thereafter, the A. F. L. and the, C. I. O. entered into seperate nego-
tiations with the Company for the purpose of consummating collec-
tive bargaining agreements covering the aforesaid units. The nego-
tiations reached an impasse and a dispute was certified to the'National
War Labor Board.' On April 15, 1942, the National War Labor
Board issued its decision,6 ordering, inter alia, the inclusion of
maintenance-of-lxlembership clauses in the,contracts'between the Com-
pany and the several unions involved. Thereafter, contracts were
executed incorporating such `clauses. The A. F. L. asserts that,the
National War Labor Board granted maintenance-of-membership .
clauses on the assurance by each of the unions that, in the interest of
maintaining the stability of labor relations at the Company's several
plants, it would not seek to organize any group of the Company's em-
ployees then' represented by another union. The institution ' of the
present proceedings, the A. F. L. claims, constitutes a, violation by
the C. I. O. of its pledge to the National War Labor Board, and is
conduct which this Board ought to penalize by dismissing the instant
petition. ,
In effect, the A. F. L. is proposing that this Board enforce an agree-
ment which would deny employees the privilege of selecting a par-
2 See Matter of The Trailer Company of America, and cases cited therein , 51 N. L. R. B.
1106
° Decisions reported in 33 , N. L. R. B. 347 ( West Pullman Works ) 33 N L. R B 509
(East Moline works ) ; 34 N. L. R. B: 323 ( McCormick Works ) ; and 35 N. L. R. B. 445
( Rock Falls Works).
"DecisionsDecisions reported in 33 N L . R. B 546 ( Milwaukee Works, and 34 N -L R. B' 321
(Farmall Works). .
° Other unions ,' not involved herein, were also parties to the certified dispute.
° Cited in footnote 1, supra.
INTERNATIONAL HARVESTER COMPANY 505
titular labor organization as their representative because that organ-
ization has agreed not to represent them. In our opinion, such an
agreement is inconsistent with the express provisions of the Act and
-cannot, therefore, be given effect. Section 7 of the Act provides that
"Employees shall have the right . . . to bargain collectively through
representatives, of their own choosing. . " This right cannot be
bargained away by a labor organization.? Nor do we believe, as the
A. F. L. asserts, that the stability of the employer-employee relation-
ship at the Farmall Works would be impaired by the conduct of an
election at this time. On the contrary, our experience has demon-
strated that there is nothing more likely to undermine stability than
a policy which denies to employees the right to select a new bar-
gaining representative after the passage of a' reasonable time. In
this case, nearly 3 years have elapsed since the employees last expressed
their choice of a bargaining representative.
A statement of a Regional, Attorney for the Board, introduced into
evidence at the hearing, indicates that the C. I. O. represents a sub-
stantial number, of employees in the unit hereinafter found
appropriate.8 -
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The parties stipulated, and we find, that all production and mainte-
nance employees at the •Farmall Works of the' Company, excluding
salaried employees, supervisory employees on hourly rates above the
rank of working group leaders, factory clerical employees, office cleri-
cal employees, indentured apprentices, student executives, fire and
watch employees (except production and maintenance employees who
act as volunteer firemen), pattern makers and pattern maker appren-
tices, and all or any other supervisory employees with authority to
hire, promote, discharge, discipline, or otherwise effect changes in
' See Matter of Vdckard Motor Car Company, 47 N. L. R. B. 932, Matter of Briggs
Manufacturing Company , 49 N. L. It. B 57.
8 The Regional Attorney reported that the C. I. O. submitted 2,228 application-for-
membership cards; that the names of 1,838 persons appearing on the cards were listed
on the Company' s pay roll of Febiuary 1, 1944, which contained the names of 4,161
employees in the appropriate unit; and that the cards were dated from December 1943
to April 1944. The A' F. L. relied upon its contract to establish its interest in this
proceeding.
The Trial Examiner rejected the A F. L.'s offer to prove that a number of the applica-
tion-for-membership cards submitted by the C. I. 0 in support of its interest herein are
not authentic . We have heretofore affirmed this ruling, for , as we have frequently stated,
the examination and evaluation of these cards is an administrative matter, wholly within
the discretion of the Board , and for this reason is not subject to attack by parties to the
proceeding See Matter of American Finishing Company, footnote 4, and cases cited
therein, 54 N. L. R. B. 996.
i
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the status of employees, or effectively recommend such action; consti-
tute. a unit :appropriate 'for the purposes of 'collective bargaining
within -the meaning of Section 9 (b), of the Act.9 '
V. THE DETERMINATION OF REPRESENTATIVES
We find that • the question concerning representation which has
arisen can be resolved by "means of an election by secret ballot." The
Company urges; in its brief, that all employees within the appropriate
unit who are in the armed forces of the United States be permitted to
vote by mail. Since,' as we fully stated, in Matter of Mine Safety Ap-
lian,ces Co.; Gallery Plant, Gallery, Pennsylvania, 55 N. L. R. B., No.
215, it is administratively impracticable to provide for mail balloting
of employees on military leave who are unable to appear at-the polls
and`sihce -a"safe'giiaid•has been established for their interests, only
those employees in the-armed forces of the United States who present
themselves in person at the polls will be permitted to vote.
We shall direct 'that the question concerning representation which
has, arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate unit who were employed during the pay-roll
period immediately preceding the. date of the Direction of Election
herein, subject to the limitations and additions set' forth in the
Direction.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9,(c) of the National Labor Relations
Act, and pursuant to Article III, Section 9, of National Labor Rela-
tions Board Rules and Regulations ' Series 3; it is, hereby
DmcTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with International Har-
vester Company, Farmall Works, Rock Island, Illinois, and election
by secret ballot,shall be conducted as early as possible, but not later
than thirty (30) days from the date of this Direction, under the direc-
tion and supervision of the Regional, Director for the Thirteenth
Region, acting in this matter as agent for the National Labor Rela-
tions Board, and subject to Article III, Sections 10 and 11, of said
Rules and Regulations, among the employees, in the unit found ap-
propriate in Section IV, above, who were employed during the pay-
roll period immediately preceding the date of this Direction, including
employees who did not work during said pay-roll period because they
e This is the same unit found appropriate in a previous Board decision involving the
Company 's Farmall Works (Matter of International Hari,ester Company, Farmall Works,
32 N. L. R B. 25 ), and incorporated in the current agreement between the ' Company and
the A. F. L. .
INTERNATIONAL. HARVESTER ' COMPANY 507
were ill or on vacation or temporarily laid off, and including employees
in the armed forces of the United States who present themselves in
person at the polls, but excluding those employees who have since
quit or been discharged for cause and have not been rehired or rein-
stated prior to the date of the election, to determine whether they
desire to be represented by United Farm Equipment and Metal Work-
ers of America; C. I. 0., or by Federal Labor Union #22657, A. F. L.,
for the purposes of collective bargaining, or by neither.
Mn. GERARD D. REILLY, concurring:
After examining'the record in this case, I concur with my colleagues
in the view that we have no other course open to us but to direct an
election. Since their conclusion is based in part, however, upon some
decisions which I think are questionable,' I feel that I'should express
my views separately.
The only important issue in this case arises out of the possible im-
pact of an order of the War Labor Board, dated April 15, 1942,2 in,
which the International Harvester Company was ordered to execute
contracts in its various plants incorporating maintenance-of-member-
ship provisions. In four of these plants, pursuant to certification of
this Board, the contracting party was the same C. I. 0. union which is
the petitioner in this case. In the other two plants, including the one
involved here, the intervening union, referred to in the majority
opinion as the A. F. L., was the contracting party. According to
certain evidence offered by the A. F. L., the petitioning union at
the time of the issuance of the War Labor Board's order agreed not to
try to represent as bargaining agent employees in any of the plants
where the intervening union had previously been certified. The Trial
Examiner rejected the greater part of this offer or proof and our
decision in effect sustains his ruling.
It has.never been my opinion that the provisions of the National La-
bor Relations Act prevent this Board from giving binding effect to a
voluntary agreement by a union not to represent certain designated
classes of employees.3 In this case, however, the making of such an
agreement was denied by a representative of the petitioning union.
Consequently, we should have to admit evidence of what went on
behind the scenes at the War Labor Board to ascertain whether the
alleged commitment had in fact occurred, since the decision of that,
agency on its face does not reveal the existence of such an under-
' See Matter of Packard Motor Company, 47 N. L. R. B. 932; Matter o f Briggs Manufac-
turing Company, 49 N. L. R. B. 57.
See footnote 1, majority opinion. supra. -
See dissenting opinions in Packard Motor Company, supra, and Federal Motor Truck
Company, 54 N. L., R. B. 984'.
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
standing. It would seem to be outside our province to examine into
the unpublished proceedings of another administrative agency.
Moreover, if the alleged understanding was an implied condition of
the War Labor Board's order, the method of its enforcement would
seem to lie within the discretion of that agency. If the petitioning
union is indeed guilty of a breach of the conditions upon which it
obtained certain privileges and rights, from the hands of the War
Labor Board, I ,know of nothing in the law which would prevent the
parties aggrieved by such breach from filing a motion with that agency
to set aside in whole or in part the order of 'April 15, 1942.