International Harvester Co.

National Labor Relations Board - Board Decisions

Dec 16, 1949

87 N.L.R.B. 1123 (N.L.R.B. 1949)

In the Matter Of INTERNATIONAL H ARVESTER COMPANY, CANTON WORKS
and UNITED AUTOMOBILE, AIRCRAFT, AND AGRICULTURAL IMPLEMENT
WORKERS, CIO and UNITED FARM EQUIPMENT AND METAL WORKERS
OF AMERICA, CIO, PARTY TO THE CONTRACT and UNITED FARM EQUIP-
MENT AND METAL WORKERS OF AMERICA, CIO, LOCAL No. 157, PARTY
TO THE CONTRACT
, Case No. 13-CA-113.Decided December 16, 1949
DECISION
AND
ORDER
On March 7, 1949,. Trial Examiner Horace ,A. Ruckel issued his
Intermediate Report in the above-entitled proceeding, attached hereto,
finding that the Respondent had not violated Section 8 (a) (1) of the
Act, as alleged in the complaint, and recommending that the complaint
against the Respondent be dismissed. Thereafter, the United Auto-
mobile, Aircraft and Agricultural Implement Workers, CIO herein
called UAW, and the General Counsel filed exceptions to the Inter-
mediate Report. Briefs were filed by the General Counsel, the
Respondent, and the UAW.
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby . af£i, rmed. .
The Board has considered the Intermediate Report, the exceptions,
the briefs, and the. entire record in the case. The Board adopts the
Trial Examiner's findings of fact, except as corrected and amplified
in this opinion, and his conclusions of law Nos. 1 and 2, but rejects
his conclusion of law No. 3.
The material facts in this case are not in dispute. On June 14, 1948,
in Case No. 13-RC-215, wherein the Independent 1 had petitioned for
certification as the bargaining representative of the Respondent's Can-
ton Works employees, a consent election agreement approved by the
Board's Regional Director was entered into by the parties, namely :
the Respondent;. the Independent; the United Farm Equipment and
Metal Workers of America, CIO, herein called FE, which was cur-
1 Canton Industrial Independent Union. This union is not a party to this case.
87 NLRB No. 131.
1123
1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rently the representative of the Canton Works employees under a 194T
certification, and a contract then due to expire on June 26, 1948; 2:
and the UAW, which, like the FE, had intervened in the representa-
tion proceeding. Notwithstanding the pendency-of this case before-
the Board, and the agreement to hold a consent election on July 7, the-
Respondent continued to recognize the FE as the exclusive bargaining
representative of its Canton Works employees for the purpose of nego-
tiating a new term contract.
On June 30, at their "central negotiations" involving the Canton
Works and 11 other International Harvester plants, the Respondent.
and the FE agreed upon a master contract to be applied to each of
these 12 plants. 3 On July 6, one day before the election, I the Re-
spondent, acting through its Canton Works manager, and the FE,.
acting through its Local No. 157, formally executed an exclusive 1-year
contract covering the production and maintenance employees at the
Canton Works, and embodying the terns of the June 30 agreement..
Among other things, the contract provided for an 11-cent hourly wage
increase, retroactive to June 28; 1948. This provision represented the
FE's acceptance of an offer of an 11-cent increase, to be effective as of
the beginning of the pay-roll period in which the offer should be
accepted. The respondent had tendered this offer simultaneously to
both the FE and the UAW on June 18. On the morning of July 6,
which was the first working day of the pay period beginning on' July
5, the Respondent notified its employees at the Canton Works that
their hourly rates were being increased by 11 cents effective innnedi-
ately. 4 A handbill distributed by the FE on July 7, before the elec-
tion, alinbunced the execution of the contract on July 6, and reprinted
its complete text.
Meanwhile, on June 23, the Respondent had entered into an agree-
ment with the UAW providing that the employees in the Respondent's
seven UAW-represented plants should receive the same 11-cent hourly
2 This contract, made in 1947,.was originally due to expire on May 22, 1948. On May
20, 1948, during the period of negotiation for a new contract, the parties agreed to extend
the 1947 contract to June 28, 1948.
3 The contract or memorandum of agreement of June 30 is not in evidence. The
stipulation of the parties in this case recites that the "contract" of June 30 was "sub-
mitted to all FE Harvester locals for ratification and upon ratification was embodied in
individual agreements executed for each plant. . . .
4 The record does not show whether or not the employees were informed, by the
Respondent itself, that they were receiving this increase as the result of the FE's nego-
tiations, or that the increase was to be retroactive to June 28, the date specified in the
contract. The Trial Examiner found that the increase was, in fact, made retroactive to,
June 28 at the Canton Works, and the Respondent has not challenged this finding of
fact. The parties' stipulation of facts, however, shows only that : "For all workers in
the production and maintenance unit at the Canton Works, wage payments for the week
commencing July 5, 1948, were made at the [increased] hourly rate . . ." and that on
the morning of July.6 the supervisors advised. these employees "that their earnings were
thereafter to be computed on the basis of hourly rates increased by 11 cents . . . .
[Emphasis added.]
INTERNATIONAL HARVESTER COMPANY 1125
' wage increase, effective, in this case, as of June 21, which was the first
day of the pay period in which the UAW accepted the Respondent's
offer. This agreement further provided that a number of specific
issues, other than wages, remained to be settled by the Respondent and
the UAW in forthcoming negotiations looking toward the consum=
-oration of new collective bargaining contracts to replace the UAW's
,current contracts which were due to expire in August 1948.
The Respondent's employees at the Canton Works were informed
.of all these developments, and were told by the UAW, in a circular
•distributed on or about June 24, that "after" the UAI,V won the elec-
tion at the Canton Works, it would "demand" that the employees at
that plant be given the 11-cent wage increase retroactive to June 21,
which the UAW had secured at other plants.
The complaint alleges that by executing the July 6 contract, and by
negotiating with the FE for that contract during the pendency of the
representation proceeding, and by granting a retroactive wage in-
crease to the Canton Works employees on the eve of the election, the
Respondent violated Section 8 (a) (1) of the Act. The Trial Ex-
aminer concluded that, because of exceptional circumstances present
in this case, the Respondent's conduct did not constitute an unfair
labor practice. We are constrained to reject this conclusion.
In Midwest Piping 6 Supply Co., Inc.,5 and similar cases,° the Board
'has uniformly held that an employer unlawfully infringes upon his
,employees' freedom to select their own bargaining representatives if
he recognizes and contracts with a labor organization as their exclusive
bargaining representative notwithstanding the existence of a valid
,question as to their representation. We believe that this is a sound
.and necessary rule, and we adhere to it, although we recognize that
it may operate to postpone or interrupt collective bargaining.7 The
,controlling consideration is that when employes have raised a question
'63 NLRB 1.060.
6 Stanislaus Food Products Company, 79 NLRB 260 ; Basic Vegetable Products, Inc.,
'75 NLRB 815 ; Radio Corporation of America, 74 NLRB 1729 ; Flotill Products Inc., 70
NLRB 119.
7 However , the rule of General Electric X-Ray Corporation , 67 NLRB 997 , obviates the
'possibility that a claimant who does not promptly invoice Board process can successfully
interrupt bargaining . Also see Phelps Dodge Copper Products Corporation , 63 NLRB
,686, where the Board sanctioned tacit continuance of the provisions of a collective bar-
.gaining contract pending the disposition of a representation proceeding . Of course, that
case is distinguishable from the one before us, where we have not merely an interim
:arrangement continuing the terms of an expiring contract while a question of representa-
tion is pending, but a new contract granting FE exclusive recognition for the period of
;a year . It was said in the Phelps-Dodge case at page 687 :
We are of the opinion that if, during the pendency of an election directed by the
Board to resolve a question concerning representation , an employer extends or renews
an existing contract with a labor organization , or makes a new one, he violates the
Act insofar as that organization is accorded recognition as exclusive bargaining
representative. . . .
1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concerning representation at an appropriate time, the statute dictates
that they shall be free of employer interference in exercising their
franchise to resolve that question. And, as we have pointed out many
times, an employer's election to recognize and deal with a labor organi-
zation whose representative status is in question constitutes serious
interference with his employees' freedom to make their own choice of a
bargaining agency."
It is for these reasons that we are unable to accept the Trial Ex-
aminer's conclusions in this case. We are of the opinion that the
Respondent's conduct here falls squarely within the proscription of
our general rule, and cannot be justified by the argument that, had
the Respondent awaited the outcome of the representation proceeding,
there would necessarily have been an interruption of collective bar-
gaining for the employees at the Canton Works. This argument does
not negate the controlling fact that, at the time the Respondent nego-
tiated and executed its new contract with the FE covering the Canton
Works employees, a valid question as to the representation of those em-
ployees was pending before the Board for resolution. At that time,
the right of the Canton Works employees to be free in the selection
of their own representatives was paramount to any considerations as
to the desirability of continuous collective bargaining.9
Our dissenting colleague apparently believes that the fact that the
FE had been certified as the collective bargaining representative for
the employees at the Canton 1 Torks less than a year before .the con-
tract here in issue was executed, prevented any valid representation
question from arising, and that therefore the Midwest Piping rule
does not apply. It is true that the Independent's petition was orig-
inally subject to dismissal because it was filed nearly 3 months before
8 The Trial Examiner appeared to believe that the results of the election in the repre-
sentation case were not affected by the acts of the Respondent complained of here. How-
ever , as we have uniformly held, the Board cannot base its findings of unfair labor
practices on speculation as to whether or not the unlawful conduct was actually effective
to influence the employees in a particular case . The proper test is whether or not such
conduct tends to interfere with the free , exercise by employees of their rights under the
Act. See N. L. R. B. V. Brenner Tanning Co., 141 F. 2d 62, 64 (C. A. 1) ; N. L. R. B. V.
John Englehorn & Sons, 134 F. 2d 553, 557 (C. A. 3) ; Western Cartridge Co. v. N. L. R. B.,
134 F . 2d 240 , 244 (C. A . 7), certiorari denied , 320 U. S . 746; Rapid Roller Co. V. N. L.
R. B., 126 F. 2d 452, 457 ( C. A. 7), certiorari denied, 317 U. S. 650; Humble Oil 4
Refining Co . v. N. L. R. B., 113 F. 2d 85, 92 ( C. A. 5) ; C. Pappas Company, Inc., 82
NLRB 765; Pure Oil Company, 73 NLRB 1.
The Trial Examiner relied heavily on Ensher, Alexander & Barsoom Inc ., 74 NLRB
1443, and on the following quotation from that case referring to the Midwest Piping
doctrine : That doctrine , necessary though it is to protect freedom of choice in certain
situations , can easily operate in derogation of the practice of continued collective bargain-
ing and should therefore be strictly construed and sparingly applied ." But the facts in
that . case are not analogous to those before us here. In the Ensher case the Board found
that only a technical question of representation existed and there were no conflicting
claims at the time of the execution of the allegedly invalid contract . Here, the question
of representation was a live one and there were strongly contested claims.
INTERNATIONAL HARVESTER COMPANY 1127
the anniversary of the FE's certification, issued July 10, 1947?° And,
but for the consent election agreement, the Board might have held,
had the matter come before it, that the contract of July 6 barred the
petition.11 However, by entering into the consent election agreement,
and thereby inferentially conceding that there was a question of repre-
sentation which the Board might appropriately proceed to investi-
gate forthwith, the Respondent and the FE necessarily waived any
protection which their subsequently renewed contractual relationship
would otherwise have derived from the 1947 certification. We have
heretofore assumed, and were surprised to find that our dissenting
colleague believes otherwise, that when parties assent to the submis-
sion of a question of representation to the Board, they are at the
same time agreeing to refrain from. executing any new collective
bargaining contract until the question is resolved. To hold other-
wise would be to sanction futile elections and invite abuse of our
process.
The Respondent contends that. it could not suspend bargaining as
to the Canton Works without impeding the progress of its central nego-
tiations with the FE as to the employees in many other plants where
the FE was the unchallenged bargaining agent. But the employees
at the Canton Works constituted a separate bargaining unit. Their
right, as such, to change their bargaining representatives if they so
desired, could not be extinguished or qualified by the mere circum-
stance that their employer and their incumbent representative desired
to negotiate a master contract and apply it simultaneously to a num-
ber of other, similar, bargaining units. Even as a matter of practical
expediency, we perceive in this case no compelling reason why the
Respondent could not have continued its negotiations with the FE
so far as the other plants were concerned, while at the same time
refusing to recognize and deal With the FE for the purpose of enter-
ing into a new contract at the Canton Works 12. The election, after
all, was held. only 1 day after that contract was executed, so the
period of postponed recognition need not have been a long one.
The Respondent also contends that it manifested a policy of neu-
trality as between the FE and the UAW during the preelection
period, giving the UAW exactly the same favors and prestige that it.
10 Cooperative Industries, Inc., 85 NLRB 1258.
11 Quaker Maid Company, Incorporated, 71 NLRB 915 ; Con P . Curran Printing Cona-
pany , 67 NLRB 1419.
^ The Respondent argues in its brief that it was forced by the threat of continuance of
an FE-fostered strike, then in progress , to extend its contract with PE when it did. How-
ever, the record shows that although other plants of the Respondent were struck, the
Canton Works was not. In any event, the threat of economic pressure is not an excuse
for a violation of the Act. Eaton Manufacturing Company, 76 NLRB 261 ; G. W. Hume
Company, 71 NLRB 533.
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conferred upon the FE. Even it this contention were supported by
the record, it would be unavailing as a defense in this case, for it
ignores the fact that the employees at the Canton Works were entitled
to express their preferences freely in the forthcoming election, not
only as between the FE and the UA W, but also in favor of the Inde-
pendent, or no union at all, as their bargaining representative 13 More-
over, we cannot agree that the Respondent actually treated the FE
and the UAW with strict equality in this election contest. The
UAW's achievement of a wage agreement for employees at other plants,
and the UAW's announced intention, if elected, to "demand" to have
that agreement applied to the Canton Works, scarcely served to equate
the position of the UAW on the eve of the election to that of the FE,
with its new and complete term contract covering the very employees
whose choice of a bargaining agent should have been left for deter-
mination at the polls. The record does not support the Trial Ex-
aminer's finding that these employees were led to believe that they
were voting, in effect, as to which of two contracts would be auto-
matically applied to them after the election. The UAW had no
contract purporting to establish terns and conditions of employment
at the Canton Works, even conditionally, whereas the FE's contract
of July 6, according to its terms, unconditionally covered the employees
in this bargaining unit 14
An additional argument advanced by the Respondent in justification
of its conduct is that, notwithstanding the pendency of the representa-
tion proceeding, it was required under Section 8 (d) of the amended
Act to "meet and confer" with the FE "for the purpose of negotiating
a new contract" unless and until the Board should certify that the FE
had "been superseded as or ceased to be" the bargaining agent of the
Canton Works employees.15 We find no merit in this defense, for
It is also immaterial that, as found by the Trial Examiner, the Respondent acted in
good faith, in the sense that it did not intend or desire, by awarding a contract to the FE,
to influence its employees' vote in the election. See The Standard Steel Spring Com-
pany, 80 NLRB 1082; Pea-Rad Tube and Lamp Corporation, 62 NLRB 21-
14 We need not, and do not, decide whether negotiation of a contingent contract with
one or all candidates would be unlawful in circumstances comparable to those in this case.
15 The Respondent relies upon the following provisions of Sec. 8 (d) of the Act, which
defines collective bargaining:
. . . Provided : That where there is in effect a collective-bargaining contract
covering employees in an industry affecting commerce, the duty to bargain collectively
shall also mean that no party to such contract shall terminate or modify such con-
tract, unless the party desiring such termination or modification-
(2) Offers to meet and confer with the other party for the purpose of negotiat-
ing a new contract or a contract containing the proposed modifications
t + a x s s a
The duties imposed upon employers, employees, and labor organizations by para-
graphs (2), (3), and (4) shall become inapplicable upon an intervening certification
of the Board, under which the labor organization or individual, which is a party to
the contract, has been superseded as or ceased to be the representative of the em-
ployees subject to the provisions of Section 9 (a), . . .
INTERNATIONAL HARVESTER COMPANY 1129
the statutory provisions upon which the Respondent relies, however
they be construed, are inapplicable to the facts before us here. The
requirement to renegotiate, contained in paragraph (2) of the Proviso
to Section 8 (d), expressly refers to a situation "where there is in
effect a collective-bargaining contract." In this case, there was no
contract in effect at the time the Respondent finally agreed upon and
executed its new contract with the FE. The prior contract between
those parties, even as extended during the period of renegotiation, had
expired on June 28.
We find that, by according exclusive recognition to the FE for the
purpose of negotiating a new term contract covering the Canton Works
bargaining unit, and by executing the contract of July 6, 1948, in the
face of the representation proceedings in Case No. 13-RC-215, and
the agreement for a consent election in that case, the Respondent inter-
fered with its Canton Works employees in the exercise of the right,
guaranteed in Section 7 of the Act, to select their own bargaining
representatives or no representative at all, and thereby engaged in
unfair labor practices within the meaning of Section 8 (a) (1) of
the Act.
The complaint separately alleges that the Respondent's conduct in
giving the Canton Works employees an 11-cent wage increase on the
eve of the election was an independent violation of Section 8 (a) (1)
of the Act, standing alone. We shall dismiss this allegation. The
record in this case does not warrant a finding that the Respondent's
conduct in giving the employees a wage increase as announced on
July 6, viewed separately from its conduct in awarding the FE the
contract which provided for an increase in the same amount, was
violative of the Act 18
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth above, occurring in con-
nection with the operations of the Respondent described in the In-
termediate Report, have a close, intimate, and substantial relation
to trade, traffic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
is Artcraft Hosiery Company, 78 NLRB 333. And compare Hudson Hosiery Company,
72 NLRB 1434 , where the Board said , inter alia , ". . . we do not mean that an employer
is foreclosed from announcing or granting economic benefits during a union 's organiza-
tional campaign or during the pendency of a Board -ordered election . what is unlawful
under the Act is the emplo yer's granting or announcing such benefits ( although previ-
ously determined upon bona fide) for the purpose of causing the employees to accept or
reject a representative for collective bargaining."
1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Having found that the Respondent has violated Section 8 (a) (1)
of the Act, we will order that it cease and desist therefrom , and that
it take affirmative action designed to effectuate the policies of the Act.
We have found that the Respondent has interfered with its em-
ployees in the exercise of the rights guaranteed them in Section 7 of
the Act by recognizing and contracting with FE as the exclusive rep-
resentative of the employees at the Canton Works. Plainly, a free
selection of a bargaining representative cannot be made where recog-
nition and a contract has been accorded to one of the competing unions.
We will 'accordingly order the Respondent to cease and desist from
recognizing FE as the exclusive representative of the employees at
the Canton Works unless and until FE shall have been certified as
such by the Board, and from giving effect to the contract of July 6,
1948, or to any extension, renewal, modification or supplement thereof.
Nothing herein, however, shall be construed as requiring the Re-
spondent to vary any wage, hour , seniority or other substantive
features of its relations with the employees of, the Canton Works
which the Respondent has established in the performance of that con-
tract or to prejudice the assertion by these employees of any rights they
may have under such agreement.
ORDER
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent , International
Harvester Company, Chicago , Illinois, and its officers ,' agents, suc-
-cessors, and assigns, shall:
1. Cease and desist from :
(a) Recognizing United Farm Equipment and Metal Workers of
America, CIO , or United Farm Equipment and Metal Workers of
America, CIO , Local No. 157 as the exclusive representative of any
of its production and maintenance employees at its Canton Works,
Canton, Illinois , for the purposes of collective bargaining , unless and
until either of said organizations shall have been certified by the Na-
tional Labor Relations Board as the exclusive representative of such
,employees ;
. (b) Giving effect to its contract of July 6, 1948 with United Farm
Equipment and Metal Workers of America, CIO , or to any extension,
renewal, modification, or supplement thereof, unless and until the
said organization shall have been certified by the Board as the repre-
sentative of the employees of the Canton Works;
INTERNATIONAL 'HARVESTER COMPANY 1131
(c) In any like or related manner interfering with, restraining, or
coercing its employees at the Canton Works in the exercise of the
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Withdraw and withhold all recognition from United Farm
Equipment and Metal Workers of America, CIO, or United Farm
Equipment and Metal Workers of America, CIO, Local No. 157, as
the representative of any of its production and maintenance employ-
ees at its plant in Canton, Illinois, for the purposes of collective bar-
gaining with respect to rates of pay, wages, hours of employment, or
any other conditions of employment, unless or until either of said or-
ganizations shall have been certified by the National Labor Rela-
tions Board as such representative;
(b) Post at its plant at Canton, Illinois, copies of the notice at-
tached hereto, marked Appendix A.17 Copies of said notice, to be
furnished by the Regional Director for the Thirteenth Region, shall,
after being duly signed by the Respondent's representative, be posted
by the Respondent immediately upon receipt thereof, and maintained
by it for a period of sixty (60) consecutive days thereafter, in con-
spicuous places, including all places where notices to employees are
customa.ri]y posted. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or covered by any
other material;
(c) Notify the Regional Director for the Thirteenth Region in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
IT IS HEREBY FURTHER ORDERED that the allegations in paragraph
IV F of the complaint be, and they hereby are, dismissed.
MEMBER REYNOLDS took no part in the consideration of the above
Decision and Order.
MEMBER GRAY, dissenting in past : i8
In the interest of industrial stability, the Board with court approval
has adopted a wise and salutary policy of according its certifications
some measure of permanence, usually 1 year, during which time
the employer is obligated to bargain in good faith with the certified
union. Consistently with this policy, the Board has uniformly held
an employer to be in violation of the Act for refusing to bargain with
the certified union during the certification year, irrespective of the
11 In the event that this order is enforced by a decree of a United States Court of
Appeals, there shall be inserted before the words, "A DECISION AND ORDER" the
words , "DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING."
181 agree with the majority, that the Respondent did not violate Section 8 (a) (1) of
the Act by giving the employees a wage increase on the eve of the election.
1132 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD
fact that the parties had previously executed a collective bargaining
agreement during the certification year but which expired within that
period.19 Yet the majority is now holding in this case that the Re-
spondent, by granting the FE exclusive recognition and executing
an agreement with it covering the Respondent's Canton Works within
the certification year, unlawfully interfered with, restrained, and co-
erced employees in the selection of a bargaining agent. This decision
represents to me an unwarranted departure from well-established
principles.
It is the majority's view that the Respondent and the FE waived
the protection with the FE's certification otherwise afforded their con-
tinued contractual relationship when they consented to an election in
the concededly premature representation proceeding and that, there-
fore, under the Midwest Piping doctrine, the Respondent's conduct
violated Section 8 (a) (1) of the Act. The basic fallacy of the ma-
jority's position is that the consent election agreement neither con-
templated a waiver of bargaining rights to which the FE was justly
entitled by virtue of its certification, nor did it have such an effect.
This is clearly -indicated not only by the absence of a specific waiver
in the consent agreement but also by the fact that, as the majority
finds, the Respondent and the FE continued their previously in-
stituted negotiations for a new contract after signing the consent
agreement. Abandonment of substantial rights such as those in-
volved herein should not be too lightly inferred. In my opinion, the
most that may be inferred from the Respondent's and the FE's con-
sent to the election is that they voluntarily agreed to waive their con-
ceded right to urge the certification as a bar to the representation
proceeding. Anything beyond that is warranted neither by the facts
nor applicable policy.
In these circumstances, it is apparent that the Midwest Piping
doctrine is inapplicable to the facts of this case. That doctrine pre-
supposes a situation where the contracting union is not entitled to
the recognition or bargaining privileges which the employer accords
it during the pendency of a timely representation proceeding. In
the present case, however, not only was the representation proceed-
ing premature, but the FE's certification required the Respondent
to continue its bargaining relations with the FE or else suffer a
violation of the Act. By the .same token, to say, as the majority
does, that the Respondent nevertheless interfered with its employees'
choice of a bargaining representative, is to ignore the fundamental
fact that the Board; in adopting the 1-year certification rule,
had. already decided that stability in industrial relations during
1D See , for example , Mengel Company, Fibre Container Division , 80 NLRB .705 ; The
Belden Brick Co., 83 NLRB 465.
INTERNATIONAL HARVESTER COMPANY 1133
the certificate year outweighs the statutory right of employees to se-
lect and change their bargaining representatives. Indeed, judged by
the overwhelming vote which the FE received at the polls, I find it
difficult, to conclude other. than-,that. the FE had at all times been the
choice of the Respondent's employees at its Canton Works.
In sum, I am not convinced that the Respondent's continued recog-
nition of the FE and the execution of the agreement in question fall
within the condemnation of the Midwest Piping doctrine. As the
Board observed in the Ens her case '20 "That doctrine, necessary though
it is to protect freedom of choice in certain situations, can easily op-
erate in derogation of the practice of continuous-collective bargaining,
and should, therefore, be strictly construed and sparingly applied."
Accordingly, I would accept the Trial Examiner's recommendation
and dismiss the complaint herein.
APPENDIX A
NOTICE TO OUR EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT RECOGNIZE UNITED FARM EQUIPMENT AND METAL
WORKERS OF AMERICA, CIO Or UNITED FARM EQUIPMENT AND
METAL WORKERS OF AMERICA, CIO , LOCAL No. 157, as the exclusive
representative of our production and maintenance employees at
our Canton, Illinois, plant, for the purposes of collective bargain
ing, unless and until either of said organizations shall have been
certified by the National Labor Relations Board as the exclusive
representative of such employees.
WE WILL NOT give effect to our contract dated July 6, 1948, with
United Farm Equipment and Metal Workers of America, CIO,
or to any extension, renewal modification or supplement thereof,
unless.and until said organization shall have been certified by the
Board as the representative of our employees.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed in Section 7 of the Act.
INTERNATIONAL HARVESTER COMPANY,
Employer.
By -----------------------------------------
Dated -------------------- (Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
20 Ensher, Alexander tG Barsoom , Inc., 74 NLRB 1443, 1445.
1134 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
Mr. Morris Slavney, for the General Counsel.
Mr. D. B. Oldaker, of Chicago, Ill., for the Respondent.
Mr. Harold A. Katz, of Chicago, Ill., and Mr. Russell Merrill, of Canton, Ill.,
for the UAW.
Mr. Eugene Cotton, of Cjiicago, Ill., for the FE.
Mr. Lee Allanzan., of Canton, Ill., for Local 157.
STATEMENT OF THE CASE
Upon a charge filed on August 6, 1948, by United Automobile, Aircraft, and
Agricultural Implement Workers, CIO, herein called UAW, the General Counsel
of the National Labor Relations Board, herein called respectively the General
Counsel and the Board, by the Regional Director for the Thirteenth Region
(Chicago, Illinois), issued a complaint dated September 20, 1948, against Inter-
national Harvester Company, Canton Works, herein called the Respondent, alleg-
ing that the Respondent had engaged in and was engaging in unfair labor prac-
tices affecting commerce within the meaning of Section 8 (a) (1) and Section
2 (6) and (7) of the National Labor Relations Act as amended, 61 Stat. 136,
herein called the Act. Copies of the complaint, accompanied by it notice of
hearing, were duly served upon the Respondent, the UAW, United Farm Equip-
ment and Metal Workers of America, CIO, herein called the FE, and Local 157
of that organization.
With respect to ,the unfair labor practices the complaint alleged, in substance,
that the .Respondent interfered with, restrained, and coerced its employees in
the exercise of the rights guarairteed under Section 7 of the. Act, by recognizing
the FE as the exclusive bargaining representative of its production and main-
tenance employees while a representation proceeding was pending before the
Board, and by signing a contract with it granting the employees a wage incrFase,
immediately before a consent election was held on July 7, 1948, to determine
the bargaining representative of the employees.' On October 11, the FE and
Local 157, and on October 26, the Respondent, filed answers admitting, certain
allegations of the complaint with respect to the nature of the Respondent's
business, but denying that any of them had engaged in or was engaging in unfair
labor practices.
Pursuant to notice, a hearing was held on November 23, 1948, at Canton,
Illinois, before the undersigned Trial Examiner duly appointed by the Chief
Trial Examiner. The General Counsel, the Respondent, the UAW, the FE, and
Local, 157 were represented by counsel and participated in the hearing. Full
opportunity to be heard,'to examine and cross-examine witnesses,'and to intro-
duce evidence bearing upon the isues was afforded all parties.
No witnesses were called, all parties having agreed upon a stipulation as to
the facts in the case. This stipulation, and certain exhibits incorporated therein
by reference, constitute the record in the case.
After the acceptance of the stipulation and the exhibits in evidence, the parties
argued orally before the undersigned but waived the filing of briefs.
'The consent election was pursuant to a petition filed on April 20, 1948, by Canton
Industrial Independent Union, Case No. 13-RC-215. This organization was not a party
to the instant proceeding.
INTERNATIONAL HAR17ESTER COMPANY 1135
Upon the basis of the stipulation , the exhibits , and the oral argument, the
undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a. New Jersey. corporation having its -principal.office in
Chicago, 'Illinoi_s. It is engaged in the manufacture, sale, and . distribution of
farm equipment, tractors, industrial power units, motor trucks, and related
items. It operates 22 plants in the States of Illinois, Kentucky, Wisconsin, Indi-
ana, New York, Ohio, Tennessee, and California. The Respondent manufactures
tillage implements at its plant in Canton, Illinois, which is the plant directly
concerned herein.
At its Canton Works the Respondent, during the events herein complained of,
purchased raw materials valued in excess of $100,000 to be transported annually
from places outside the State of Illinois to the Canton Works, and during the
same period caused products in excess of $1,000,000 to be transported annually
from the Canton Works to places outside the State of Illinois.
II. THE ORGANIZATIONS 'INVOLVED
United Automobile, Aircraft and Agricultural Implement Workers ; United
Farm Equipment and Metal Workers of America; and United Farm Equipment
and Metal Workers of America, Local 157, all of them affiliated with the Congress
of Industrial Organizations, are labor organizations admitting to membership
employees of the Respondent. . Local 15,7 is.composed of,employees at the Canton
Works.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The alleged interference, restraint, and coercion
1. Background
The petition was filed on April 20, 1948. On June 14, the Respondent, the
UAW, the FE, Local 157, and Canton Industrial Independent Union entered into
a consent election agreement pursuant to which an election was held at the
Canton Works on July 7, 1948. In the meantime, on June 30, the Respondent
signed a Nation-wide contract with the FE, under circumstances hereinafter
more fully set out. This was ratified by Local 157 on July 6.
The FE won the election? On July 14 the UAW filed with the Regional
Director its objections to the election, and on August 13, the Regional Director
filed his Report, setting the election aside.'
There are approximately 72,000 employees in the 22 manufacturing plants of
the Respondent throughout the country. Of these, approximately 2,550 are
2 The results or the balloting were as follows :
Approximate number of eligible voters-------------------------- ------ 2, 550
Valid votes counted------------------------------------------------- 1,878
Votes cast for UAW-CIO-------------------------------------------- 368
Votes cast for FE-CIO----------------------------------------------- 1,307
Votes cast for Independent ------------------------------------------- 178
In his Report , the Regional Director stated as his grounds for setting aside the elec-
tion : "The inevitable effect of the Company's action in executing a contract and approv-
ing of the FE as the bargaining representative on the eve of the election was to accord
unwarranted prestige to the FE. encourage membership therein , and discourage member-
ship in the other two labor organizations , and inhibited the employees from freely selecting
their bargaining representatives by secret ballot in the election on the following day."
1136 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD
employed at the Canton Works. For varying periods of time the employees in
12 of these plants, including the Canton Works, have been represented by the
FE, those in 7 by the UAW, and those in the remaining 3 plants by other labor
organizations.
The FE was certified as the bargaining representative at the Canton Works on
July 10, 1947, and obtained its first contract shortly thereafter.
When an international union, such as the UAW and the FE, has represented
more than one plant, it has been the Respondent's practice to engage in central
negotiations covering all such plants, and agreements so reached have been
reduced to writing and signed at the central negotiations. Thereafter they are
customarily embodied in individual contracts covering the separate plants, the
international union acting through the particular local union as its agent.. No
negotiations take place at the separate, plant level and the individual contracts
are similar form and content.
2. The 1948 negotiations with the FE and the UAW
On March 17, 1948, the FE served the Respondent with a 60-day notice termi-
nating its 1947 master con tract, between the FE and the Respondent. At ap-
proximately the same time the Respondent served the FE with a similar no-
tice. Central negotiations between the two parties were conducted at Chicago,
Illinois, at frequent intervals from May 17 to June 30, 1948, inclusive. On
May 20, an extension agreement was signed by the FE and. the Respondent ex-
tending all existing contracts covering the various plants including, the Canton
Works, through and including June 2S.4
The Respondent and the UAW similarly conducted central, but separate, ne-
gotiations on June 18, 19, 20, and 23, covering employees at the 7 plants repre-
sented by the UAW. On June 18, at approximately 10 a. in., the Respondent,
in central negotiations with the FE, offered it an 11 cent an hour wage in-
crease, to become effective during the week of its acceptance by the FE, cover-
ing the production and maintenance employees in all 12 plants represented by
it, including the Canton Works.
On the same day, and at precisely the same hour, the Respondent, in its
central negotiations with the UAW, made that organization the same offer,
to become effective during the week of its acceptance by the UAW, and covering
the production and maintenance employees in all seven of the plants represented
by the UAW. On the same day, the Respondent announced the above offer by
individual letters to all its employees in all its plants, including the Canton
Works.
On June 21, the, Respondent sent identical letters to all employees in all the
plants represented by the FE, including the Canton Works, describing the
state of negotiations between the Respondent and the FE, from the Respondent's
point of view. After again setting forth the fact of the wage offer of June
18, the letter went on to say that very little progress had been made in nego-
tiating a contract with the FE, so far as its final execution was concerned, and
charged that the FE was not bargaining in good faith.
On the other hand, negotiations between the Respondent and the UAW,
covering its. seven plants, resulted in a contract which was signed on June
23, 1948. On June 24, this fact was announced by the Respondent in identical
4 This extension agreement suspended provisions of the 1947 contract with respect to
pay-roll deductions of union dues and assessments, and with respect to maintaining a
"paid-up" status as a condition of employment.
INTERNATIONAL HARVESTER COMPANY 1137
letters to all employees, in all its plants, including the Canton Works. The
letter stated that the 11-cent wage increase would become effective as of June
21 for employees in those plants represented by the UAW. It went on to say
that the Respondent wished that a settlement with the FE had also been made,
charging again that the FE was not bargaining in good faith and that the
"same old group of irresponsible radicals" was in control of that organization,
and asked the employees if they wanted "to follow the desires of that kind
of leadership."
Another letter of similar import was sent by the Respondent to employees at
the Canton Works on the following day, June 25.
On June 24, the UAW distributed a circular among the Canton employees,
.stressing the fact that the wage increase which it had agreed to the previous
day was effective as of June 21, and would become applicable to the Canton
Works as of that date if the UAW won the election on July 7. The circular
read in part as follows :
110 WON BY UAW-CIO
Late yesterday, the UAW in central negotiations with the (Respondent)
reached an agreement whereby the thousands of UAW members ip Harves-
ter plants will receive a 11¢ per hour increase effective as of June 21.
THIS SHOULD PROPS BEYOND A DOUBT THAT THE NAW-CIO SETS
THE TVAGE 'PATTERN NOT ONLY IN OTHER COMPANIES, BUT
ALSO HARVESTER
After the UAW-CIO wins the NLRB election on'July 7th, the UAW-CIO
will demand that the production and maintenance workers receive the 110
per hour increase retroactive to June 21st.
OUR JOB NOW IS TO MAKE IT A ONE HUNDRED PERCENT VOTE
FOR THE UAW-CIO ON ,JULY 7th, SO THAT WE WILL BE, SURE OF
GETTING THE WAGE INCREASE WITHOUT ANY MORE DELAY.
[Emphasis in original.]
Eventually, on June 20, 1948, the FE accepted the Respondent's offer of an
11-cent wage increase, and an agreement was executed between the two parties
extending the 1947 national contract for another year. In accord with the usual
practice, as described above, this contract was then submitted to all the FE
locals for ratification, including Local 157, which ratified it on July 6, the day
before the election at the Canton Works.
The FE''s extension of the Nation-wide contract was made known to the em-
ployees at the Canton Works by Respondent in a circular dated July 2. In-
asmuch, however, as the FE did not sign the contract until June 30, the wage
raise became retroactive only to June 28 in the plants, including the Canton
Works, where it was the bargaining agent, whereas it became effective in the
UAW plants as of June 21.
The signing of the contract with the FE was immediately attacked in a
circular distributed by the UAW during the morning of July 7, the date of the
election. Although the UAW had, in its own literature, claimed credit for
the 11-cent raise, and urged the employees to vote for the UAW so that its
contract might become operative at the Canton Works, it now roundly de-
nounced the FE for reaching a similar agreement. The UAW lost the elec-
tion and on August 6 it filed the charge herein.
877359-50-vol. 87-73
1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The issue
The complaint alleges that by granting recognition to the FE during the
pendency of the representation proceeding, by reaching full agreement- with
the FE on the terms of a contract, including a wage increase, by putting the
increase into effect, and by publishing these facts to the employees, the Re-
spondent interfered with, restrained, and coerced its employees in violation
of Section 8 (a) (1) of the Act. In support of these contentions the General
Counsel relies heavily upon the Board's decision in the Midwest Piping 6 case,
and asserts that the principle enunciated there is applicable here. The Re-
spondent urges that it is not, and that in negotiating centrally for all its plants,
including the Canton Works, it acted fairly and in good faith, and in the only
practicable manner open to it in negotiating a Nation-wide contract.
4. Conclusions
The undersigned disagrees with the contentions of the General Counsel. In
the Midwest Piping case the employer, after the filing of conflicting representa-
tion petitions, and while they were still pending, entered into a union-shop
agreement with one of the competing unions. In finding that the employer
thereby interfered with, restrained, and coerced its employees the -Board -s'aid:
"The Respondent, by executing a `union shop' agreement with the Steamfitters
in the face of the representation proceedings pending before the Board, indi-
cated its approval of the Steamfitters, accorded it unwarranted prestige, and
encouraged membership therein, discouraged membership in the Steelworkers,
and thereby rendered unlawful assistance to the Steamfitters."
To apply the doctrine of Midwest Piping and cases which followed it,° re-
gardless of the existing factual situation, would be schematic and mechanical
and to overlook the underlying rationale of the Board's decision in those cases.
There the employer's recognition of, and negotiation with, one of two competing
unions in a preelection period had as their purpose or result the conferring of
a positive advantage upon the one union to the detriment of the other, in such
a manner as to indicate that the employer had thereby put his stamp of approval
upon the one, in abandonment of the position of neutrality required of him, and
so as to deprive his employees of that complete freedom to choose between rival
organizations which the Act contemplates.
That the Board looked to the realities of the situation in each case, however,
is shown by its decision in the Ensher case 7 where it refused to apply the
Diidwest Piping doctrine saying: "That doctrine, necessary though it is to
protect freedom of choice in certain situations, can easily operate in derogation
of the practice of continuing collective bargaining, and should, therefore, be
strictly construed and sparingly applied."
It seems to the undersigned that this injunction of caution might well be
regarded here. It is not alleged that the extension agreement of May 20 be-
tween the Respondent and the FE was unfair, although thereby the existing
contract, without the union membership and wage assignment clauses, was
extended until June 28; nor was objection made by the UAW to this or to the
continued handling of grievances with the FE, when the UAW signed the con-
5 Matte- of Midwest Piping and Supply Co., Inc., and United Steelworkers of America,
010, 63 NLRB 1060.
• ° The General Counsel also cites the following cases : Matter of Basic Vegetable Prod-
ucts. Inc., 75 NLRB 815 ; Flotill Products, Inc., 70 NLRB 119.
7 Matter of Ensher, Alexander & Barsoonn, Inc., etc ., 7.4 NLRB 1443. _
INTERNATIONAL HARVESTER COMPANY 1139
sent election agreement on June 14. And yet this course of action amounted
to a continuing recognition of the FE as the bargaining representative during
the preelection period. The Board has long recognized that even though such
a continuing relationship may confer a substantial strategic advantage upon
the contract union, it is frequently unavoidable without serious disruption of
existing labor relations in a plant.'
It is conceivable that the Respondent at the beginning of its negotiations
with the FE, or at any rate immediately after the petition herein was filed,
should have refused to engage in or continue the negotiations unless the
Canton Works were first excluded from the coverage of any contract which
the parties might arrive at. It is evident, however, that insistence upon such
a course by an employer might well meet with such a reaction on the part
of a bargaining representation as would imperil the negotiations for all the
other plants, and, in the language of the Ensher case, "operate in derogation
of the practice of continuous collective bargaining." Moreover, to execute a
contract nationally for a number of plants, giving the employees therein a
wage raise, and at the same time to exclude the employees of one or more
plants from its operation because of the pendency of representative petitions,
would be to give rise to charges of discrimination and to lower employee morale.
It would seem that where once a union has been certified as the bargaining
agent of a group of employees and has obtained a contract, the mere filing
of a petition by a rival union does not, and should not, operate to proscribe
the continuing recognition of the contract union by the employer, nor his con-
tinned dealing with it as the representative of his employees with respect to
wages, hours, and other conditions of employment, until another bargaining
agent has been selected by the employees, or until they have indicated that they
want no union ; provided that the employer acts in good faith, and provided
that it is made known to the employees that the same privileges will be accorded
such other bargaining representative as they may choose.
The national contract with the FE having been agreed upon in central nego-
tiations, it became a matter of common knowledge to all the Respondent's. em-
ployees, in all its plants, that it would be applicable to all those plants where
the FE was a bargaining representative. These same employees also knew that
the contract with the UAW was likewise on a national scale, and would become
applicable to the employees of the Canton Works in the event that the UAW
won the election at that plant, while the contract with the FE would be in-
operative.
These facts were thoroughly publicized by the Respondent, the UAW, and
the FE. Under these circumstances the undersigned is unable to see what
liriwarranted prestige" accrued to the FE. It was abundantly clear to the
employees that if they preferred the UAW to the FE all they had to do was
to vote for it in the election, and the UAW's national contract would automat-
ically become applicable to them. In one respect, at least, the UAW had an
advantage in that if that organization won the election the employees at the
Canton Works would receive slightly more in wages because the 11-cent increase
In Matter of Phelps Dodge Copper Products Co., 13 NLRB 687, the Board held that
there was no disparity of treatment accorded one of two competing unions in a preelection
period where the employer executed an extension agreement without continuing to require
union membership as a condition of employment, where the employer continued to pay
production wages to stewards whose sole function was to handle the affairs of the Union
in the plant, where the employer continued the grievance machinery in effect, and where
the employer did not accord the Union additional privileges not previously accorded it
under the contract.
1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would be retroactive to June 21 instead of June 28, a fact which the UAW
emphasized in its campaign literature. Moreover, during the period between
the signing of the contract with the UAW and the election, the Respondent
reported fully to its employees on the progress of its negotiations with the
FE, and on at least two occasions castigated that organization :for :being "radical"
and for not negotiating in good faith. This is relevant as pertaining to the
Respondent's intent, as well as to the effect of its actions, in concluding its
contract with the FE before the election on July 7.
Finally, it is .apparent that if the Respondent had not consummated its agree-
ment with the FE ;prior to the election, having already.signed a national con-
tract with the UAW, it would have exposed itself to a charge of favoring the
UAW, inasmuch as the employees would have known when they voted that
the UAW contract, including a wage raise., would be applicable to them imme-
diately if the UAW won the election, whereas the FE might not obtain. any
contract at all.
The employees could not reasonably have thought under these circumstances
that the Respondent was putting its stamp of approval upon the FE by nego-
tiating with it, or that-they were being deprived of their freedom to choose be-
tween the FE and the UAW, as contemplated by the Act. The undersigned
believes and -finds that the undersigned acted in good faith in negotiating as it
'did, and that it did not, in the circumstances of this case,. interfere with, -restrain,
or coerce its employees in violation of the Act. He will ,accordingly recommend
that the complaint,be dismissed.
CONCLUSIONS OF LAW
1. United Automobile, Aircraft, and Agricultural Implement Workers, CIO,
United Farm Equipment and Metal Workers of America,-C.10, and United Farm
Equipment and Metal Workers of America, CIO, Local'No.157,,are labor organi-
zations within the meaning of Section'2 (5) of the Act.
2. The Respondent is engaged,in commerce within the meaning of Section
2 (6) and (7) of the Act.
3. The Respondent has not engaged in any unfair labor practices within the
meaning of Section 8 (a) (1) of the Act.
.RECOMMENDATIONS
Upon the. basis of the foregoing findings of fact and conclusions of law, and
upon .the entire record in the case, the undersigned recommends that the com-
plaint against the Respondent, International Harvester Company, be dismissed.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board, any party may, within twenty (20) days from the date
of service of the order transferring the case to the Board, pursuant to Section
203.45 of said Rules and Regulations, file with the Board, Washington 25, D. C.,
an original and six copies of a statement in writing setting forth such exceptions
to the Intermediate Report or to any other part of the record or proceedings
(including rulings upon all motions or objections) as he relies upon, together
with the original and six copies of a brief in support thereof ; and any party
may, within the same period, file an original and six copies of a brief in support
of the Intermediate Report. Immediately upon the filing of such statement of
exceptions and/or briefs, the party filing the same shall serve a copy thereof upon
each of the other parties. Statements of exceptions and briefs shall designate
by precise citation the portions of the record relied upon and shall be legibly
INTERNATIONAL HARVESTER COMPANY 1141
printed or mimeographed, and if mimeographed shall be double spaced. Proof
of service on the other parties of all papers filed with the Board shall be promptly
made as required by Section 203.85. As further provided in said Section 203.46
should any party desire permission to argue orally before the Board, request
therefor must be made in writing to the Board within ten (10) days from the
date of service of the order transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and rec-
ommended order herein contained shall, as provided in Section 203.48 of said
Rules and Regulations, be adopted by the Board and become its findings, con-
clusions, and order, and all objections thereto shall be deemed waived for all
purposes.
Dated at Washington, D. C., this 7th day of March 1949.
HoRACE A. RUCKEL,
Trial Examiner.