Lane Wells Co.

National Labor Relations Board - Board Decisions

Aug 30, 1948

79 N.L.R.B. 252 (N.L.R.B. 1948)

In the Matter of LANE WELLS COMPANY , EMPLOYER and OIL WORHERs
INTERNATIONAL UNION, C. I. 0., PETITIONER
Case No. 21-RC-66
SUPPLEMENTAL DECISION
AND
DIRECTION OF ELECTION
o August 30, 1948
By our decision of June 4 in this matter we found that the Petitioner
was in reality acting in behalf of its Local 128, which was found not
to have complied with the filing requirements of Section 9 (f), (g),
and (h) of the Act. For this reason, and this reason only, we unani-
mously dismissed the petition.
Counsel for the Petitioner has since advised the Board that Local
128 complied with the filing requirements of the Act after the filing
of briefs by both parties but prior to our June 4 decision. Unfortun-
ately, notice of this belated compliance was not brought to the Board's
attention when the case was under consideration. The Board regrets
this fact. To correct its decision in accord with its records, the Board
hereby reopens this proceeding and rescinds its Order of June 4, 1948,
dismissing the petition.'
Upon the entire record in this case, the Board further finds:
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer, within the meaning of Section 9
(c) (1) and Section2 (6) and (7) of the Act.
4. The following employees of the Employer constitute a unit appro-
propriate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act: all field service and field shop employees
of the Employer's California Division, excluding all field office em-
ployees and all supervisors.2
' Although no longer applicable to the facts in this case , the principle announced in the
original Order (77 N. L. R. B. 1051), that an international will not be certified if a
non-complying local is actually in the picture , still enunciates unanimous Board doctrine.
Matter of U. S. Gypsum Company, 77 N. L. R. B. 1098.
2 Matter of StanoZind Oil & Gas Co ., 67 N. L . R. B. 375; Matter of Ohio Oil Co., 60
N. L. R. B . 418; Matter of Richfield Oil Corp ., 59 N. L. R. B. 1554.
79 N. L. R. B., No. 35.
252
LANE WELLS COMPANY 253
5. Compliance by Local 128 with Section 9 (f), (g), and (h) has
extinguished any possibility that the Oil Workers International
Union, Petitioner herein, is or could be seeking certification to enable
a noncomplying local to circumvent the provisions of Section 9 (f),
(g), and (h). Nevertheless, our dissenting colleagues would still
deny the International its right as the petitioning labor organization
to appear on the ballot and be certified as the exclusive bargaining
representative if it receives the necessary votes. They would require
either (which, it is not entirely clear) that Local 128 be substituted
for the International or that both labor organizations appear on the
ballot and be jointly certified as bargaining representatives if the
election is won. The dissent advances two considerations as reasons
for their position : (1) because grievance procedures are tradition-
ally conducted by local unions, it is more desirable to have employees
vote for a local union ; (2) placing the local union on the ballot best
reflects the intent of Congress with respect to Section 9 (f), (g), and
(h).
The short answer to these arguments is that considerations as to
the relative desirability of having international unions certified alone,
as against certifications of locals singly or jointly with international
unions, are of no relevance if the Act does not vest the Board with
authority to make such a choice. Nor does excessive preoccupation
with Section 9 (f), (g), and (h), to the exclusion of other sections of
the Act, give us a true picture of the Congressional intent. In our
opinion, the Board lacks authority to refuse an international union
which is the petitioning labor organization the right to appear alone
on the ballot and be certified as exclusive representative merely be-
cause the Board Members may believe that it is better for employees
to vote for local unions. Nor do we believe that certification of a local
union singly or jointly with an international, instead of certification
of an international alone, is necessary to effectuate Congress' intent
(g), and (h). In any event, it shouldin connection with Section 9 (f). in
be reemphasized that, in the present case, both the local and the inter-
national have complied.
The only question before us, therefore, is whether, when both a local
and an international are in full compliance, this Board should take
it upon itself to tell employees, for the first time in 13 years, that they
may not be afforded an opportunity to select the international as their
bargaining representative. Our dissenting colleagues completely over-
look the declared policy of the Act to protect the "full freedom" of
employees to designate bargaining "representatives of their own
choosing ," not of the Board's choosing. (Emphasis supplied.) The
provisi*ls of Section 9 of the Act further reflect, and must be con-
254 DECISIONS OF NATIONAL LABOR'-RELATIONS BOARD
s"trued in the light of, this basic policy to permit employees full free-
dom to select their bargaining representative. Thus Section 9 (c)•
,(1),provides that .a petition may -be filed by "any, individual or labor
organization.," alleging that a substantial number of employees,' de
sire collective bargaining but that the employer declines to recognize
"their representative." If the Board finds that a question of repre-
sentation exists, it is further provided that the Board "shall direct an
election." We cannot. conceive that, where the petitioning labor or-
ganization is itself claiming the right to represent the employees, this
mandate to hold an election on such claim of representation can mean
anything but p] acing that organization on the ballot .3
We recognize, of course, that there are certain limitations on the
absolute right to select any organization which are either explicitly 4
or implicitly present in the Act itself. Thus the Board will not place
on the ballot an organization found to have been illegally dominated
under Section 8 (a) (2) of the Act. Nor will the Board place an indi-
vidual 5 or labor organization on the ballot where it appears that. by
doing so we would facilitate circumvention of the provisions of Section
9 (f), (g), and (h). It is elementary that all provisions of a statute
must be read together and all of its provisions given effect in constru-
ing and applying it. But excepting only the few restrictions explicitly
or implicitly present in the Act, we find nothing in Section 9, or else-
where, which vests in the Board any general authority to subtract from
the right.of employees to select any labor organization they wish' as
exclusive bargaining representative. It is not an uncommon practice
for some international unions to seek certification, to contract, and to
assume responsibility for collective bargaining and the observation
of agreements, rather than to have their local unions do so.6 In some
3 We do not consider the cases cited by the dissent in footnote 5 as controlling on the
question of the Board's power to substitute or add a local union on the ballot where an
international union is the petitioner. In the Colson Corporation and Aviola Radio ' Corpora;
tion cases the international union petitioners were not averse to the placing of the local
union's name on the ballot. Indeed, in the Aviola case the proceeding was entitled "for
itself and in behalf of" the local . In the Colson case the international in its brief ( referred
to in footnote 1 of the Board's decision in that case) stated, "The petitioning Union is
Office Employees International Union, Local No. 177 " In the Pendleton Shipyards case
the local union was the petitioner ; hence the use of its name on the ballot rather than the
international union's was normal and proper In the United States Gauge case, where the
A F of L. petitioned "for and on behalf" of two international unions, placing the latter
on the ballot instead of the A F. of L was proper, because it appeared that the A. F. of L.
did not intend to act as bargaining representative, it being "understood by all parties that
these [international] unions, if there is a certification, will act jointly in negotiations with
the Company." Moreover, these decisions were made under the Wagner Act, Section 9 of
which did not contain a specific provision as does Section 9 (c) (1) of the amended Act
that "any" labor organization may file a petition.
4 As for example, Section 9 (b) (3) which prohibits guards from selecting a union which
represents other employees or is affiliated with an organization representing other em-
ployees, by prohibiting the Board from certifying such an organization.
5 Matter of Campbell Soup, 76 N L R. B 950.
6 Lester, Economics of Labor (1941), p 577.
LANE ,WELLS , COMPANY 255•
instances an international union has contracts ratified and' signed by
represen ta tives of the local as well as itself. The wisdom of such pro-
cedures is not for this Board to decide, lest Government intrude too
deeply into the affairs-of labor organizations and employers .7
, , We believe that the view we have taken conforms to the intent of,
Congress in;enacting the Labor Management Relations Act of 1947.
When this statute was considered by the Congress a section was pro-
posed that would have severely limited our authority to certify national
or international labor organizations and would have meant the certifi-
cation of local unions only, except in a very narrow area. The pro-
posal, however, was rejected. The proposed section (Section 9 (f) (1)
of H. It. 3020, 80th Cong., 1st Sess. (1947) p. 31) prohibited the certifi-
cation of a labor organization as representative of the employees of
more than 1 employer, unless the employees involved were less than
100 in number and the plants of the employers involved were less than
50 miles apart. The purpose of this provision, designed to eliminate
industry-wide bargaining, as set forth in H. R. Rep. No. 205, 80th
Cong., 1st Sess. (1947) pp. 7, 35, and 36, was to enable employees to
regulate more closely bargaining on their behalf and to prevent
national or international labor organizations from controlling em-
ployees, fixing terms of employment, and disapproving employee
action. Section 9 (f) (1) was eliminated in conference, and omitted
from the conference agreement and the amended Act itself. ( House
Conf. Rep. No. 510, on H. R. 3020, 80th Cohg., 1st Sess. (1947) ). We
are not authorized to reinsert it by construction or administrative'
action. • - •
Under .existing law, the division of function and responsibility
between international and local unions with respect to bargaining is
clearly a matter of their internal affairs. The right of an international
union to seek certification, and of employees to vote for it, is protected
against action of the type suggested in the dissent unless some other
policy of the Act is clearly contravened.
We cannot join our dissenting colleagues in the strained argument
that it is still necessary, in order to effectuate the policy of Section
9 (f), (g), and (h), to deny the petitioning International herein an
exclusive certification because of the purely, speculative, possibility
that at some future time Local 128 might permit its compliance to
7 This view finds strong support elsewhere For example, on July 9, 1948, the Interna-
tional Labor Conference adopted a Convention on Freedom of Association for submission
to the member governments, Part I, Article 3, of which reads as follows :
1. Workers' and employers ' organizations shall have the right to draw up their
constitutions and rules to elect their representatives in full freedom, to organize their
administration and activities and to formulate their programmes
2. The public authorities shall refrain from any interference which would restrict
this right-or impede -the lawful exercise thereof. •
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lapse. It is urged that if the Employer'then refused to bargain with
the international it would have to spend its time and energy defending
an 8 (a) (5) proceeding before the Board." This argument overlooks
the simple fact that the Board has the power to police its own certifica-
tions and can thereby fully effectuate the policies of Section 9 (f), (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 Employer, to recall the certificate.,,
Moreover, if the speculative reasoning of our dissenting colleagues
were carried to its logical conclusion, an international union could
never go on the ballot and be certified even if no local union had been
formed at the plant; for it is apparent that, after its certification, an
international union could form a local which might not comply, or
after doing so might allow its compliance to lapse. Nevertheless, our
colleagues specifically assert in their dissent that it is proper to certify
an international union if no local is in the picture. Indeed, one of
them joined in the recent Granite Textile Mills decision 10 in which the
Board properly rejected the employer's contention that a local union
to be formed by the international union petitioner must be made a
party to the proceeding and required to comply with Section 9 (f),
(g), and (h). The Board remarked in that case that the employer's
argument was "conjectural" and "at the least, premature." We find
no more warrant for "conjecture" in the one situation than in the
other.
For the foregoing reasons we shall not depart from our usual prac-
tice of placing only the name of the Petitioner on the ballot.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the pur-
poses of collective bargaining with the Employer, an election'by secret
ballot shall be conducted as early as possible, but not later than 30
days from the date of this Direction, under the direction and super-
vision of the Regional Director for the Region in which this case
This could happen, of course, only if the General Counsel issued a complaint. For our
part, we have no reason to doubt that the General Counsel would give due consideration to
the policies of Section 9 (f), (g), and (h) in deciding whether to issue a complaint.
See, e. g., Matter of Larus t Brother Company, Inc., 62 N. L. R. B. 1075, 1085; Matter
of Atlanta Oak Floorin, Co., 62 N. L. R. B. 973, and cases there cited
10 76 N. L. R. B. 613. That decision states :
"The Employer further contends that inasmuch as the record indicates that the Peti-
tioner will establish a local union, the Board should require such local to be a party
to this proceeding, and should require it to comply with Section 9 (f), (g), and (h) of
the Act. . -.. We find no merit in the Employer's contention. Whether or not
a local union is established, and whether or not its officers will comply with the Act
is conjectural ; the Employer's contention is, at the least, premature."
LANE WELLS COMPANY 257
was heard, and subject to Sections 203.61 and 203.62 of National Labor
Relations Board's Rules and Regulations-Series 5, among the em-
ployees in the unit found appropriate in paragraph numbered 4, above,
who were employed during the pay-roll period immediately preceding
the date of this Direction of Election, including employees who did
not work during said pay-roll period because they were ill or on vaca-
tion or temporarily laid off, but excluding those employees who have
since quit or been discharged for cause and have not been rehired or
reinstated prior to the date of the election, and also excluding em-
ployees on strike who are not entitled to reinstatement, to determine
whether or not they desire to be represented, for purposes of collective
bargaining, by Oil Workers International Union, C. 1. 0.
MEMBERS REYNOLDS and GRAY, dissenting :
In the original Decision and Order in this case, the Board found
that although the petition was filed by the International Union, the
International Union was "in reality acting in behalf of Local 128."
Accordingly, since on the basis of information available at that time
it appeared that Local 128 had failed to comply with the filing require-
ments of Section 9 (f), (g), and (h) of the Act, the Board, by unani-
mous decision, dismissed the petition. There can be little doubt but
that the basis of the Board's decision was the fact that the Local was
a real party in interest.'
The information which was subsequently brought to the Board's
attention that Local 128 was in fact in compliance with the filing
requirements of the Act in no way detracts from its established interest
in this proceeding. Whether in compliance, as it is now, or not in
compliance, as it was at the time the petition was filed, Local 128
remains a real party in interest and will continue as an essential instru-
ment in any bargaining relationship which may be created if the
Petitioner is successful in the election which our colleagues are now
directing.2 Believing this to be so, we would require that Local 128
' See Matter of United States Gypsum Company, 77 N L R B 1098 ; and Matter of
Central Paper Company, 7-UA-82, ruling on appeal dated June 4, 1948.
2 As is generally true, the Local plays a vital part in the representation of employees.
In this particular case, the role of Local 128 is emphasized by the following factors
(a) Local 128 , by a letter to the Employer , requested recognition as representative of
the latter 's employees ;
(b) Local 128 actively solicited membership in its organization among employees of the
Employer ;
(c) The constitution of the Oil Workers International Union, CIO , points up the im-
portance of the role which Local 128 must , of necessity , play in any bargaining relationship
which may be created Thus , Article IV, Sections 3 and 4, set forth the minimum participa-
tion of local unions in the bargaining relationship :
Section 3 Agreements or supplements negotiated by local unions, representatives,
or anyone delegated with authority to negotiate same, shall be ratified or rejected by
local unions in regular or special meeting through a majority vote of members affected
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
appear on the ballot in this election, for the Local should be at least
-a joint recipient with the International of any certification which may
subsequently issue.
A number of considerations point to the wisdom of this position.
First and foremost, we believe that it best reflects the intent of Con-
"gress with respect to its enactment of Section 9 (f), (g), and (h)
`of the Act. Congress has emphatically directed this Board to refrain
'from extending the use of its election facilities and the benefits of
-its certifications to labor organizations which fail to comply with
the filing requirements of this section. Thus the same policy which
`motivated our dismissal of the petition when it was first before us-
namely, the possibility of circumventing the filing requirements of
the Act-is as important today as it was at that time. It appears that
,should certification be issued, to the International Union, as contenl-
-plated by the majority decision, a subsequent lapse in compliance on
.the part of Local 128 would not, of itself, alter the international's
capacity to continue as the certified bargaining representative. With
the international so designated, the Employer could quite justifiably
consider itself bound to bargain with the International regardless
of the compliance status of Local 128. On the other hand, should the
Employer refuse to bargain in such a situation, it must be prepared
to spend its time and energy in defending its position in an 8 (a) (5)
action before this Board. To encourage even the possibility of such
an occurrence is certainly injudicious, to say the least, especially when
the Board has it within its power 3 to designate Local 128 on the ballot,
thereby eliminating any ambiguity as to the identity of the possible
prospective bargaining representative.'
who are present at said meeting , or a majority present in said meeting may submit
the question to a referendum vote
Section 4 The local union shall notify' the International Office of the results of
tabulation, showing the total number of members affected who hold membership in the
local union , the total number voting , the total number of affirmative votes, and the
total number of negative votes This tabulation shall bear the local union seal and
the signatures of the president or secretary of the local and one other officer of the local
union.
(d) Furthermore this same constitution provides that before becoming a member of the
Oil Workers International Union an employee must be accepted by majority vote of the Local.
If he is subsequently charged with violations of union rules , his conviction must be by
two-thirds vote of the Local. Hence it is to the Local that an employee must look for
approval as a condition of membership, and it is this same Local which controls his ability
to remain a member, once having been accepted
3 If, as the majority asserts , the Board has no authority to refuse a petitioning interna-
tional union the right to appear alone on the ballot and be certified as the exclusive repre-
sentative , it is difficult to perceive by what authority the majority joined in the refusal of
"the Board in its original Decision and Order herein to entertain the petition of the Inter-
national because Local 128 was not in compliance with the filing requirements of the Act.
This apparent Inconsistency , in our opinion , clearly reveals that the issue with which we
are confronted is not one of authority but rather one of discretion. -
A See Matter of The Colson Corporation , 70 N L R B. 1235.
LANE. WELLS COMPANY 259
Moreover, we are of the opinion generally that employees voting
in a representation proceeding are entitled to indicate their choice
for the labor organization which, if chosen by majority vote, will be
the agency through which they will deal with their Employer through
the utilization of the generally accepted grievance procedures set up
in bargaining agreements. Participation in grievance procedures
traditionally has. been a matter peculiarly of interest to and -within
the grasp of-local union officers and members.5
For the foregoing reasons, we would therefore place Local 128 on
the ballot.
5 Before the recent amendments to the Act, the Board has on occasion refused to place
an international or parent organization on the ballot where it appeared that the local was
the "real party in interest " While no rationale accompanied these decisions, it is a reason-
able assumption that the Board was moved by the primary interest of union locals in repre-
sentation proceedings brought by their internationals. See Matter of Ai,iola Radio Cor-
poration, 71 N L. R B. 321 ; Matter of The Colson Corporation, supra; Matter of United
States Gauge Company, 63 N. L R. B. 1254, 1259; and Matter of Pendleton Shipyards
Company, 62 N L It. B 1409, 1412. Of course, where there is no local union in the pic-
ture, certification must and appropriately should run to the petitioning international or
national organization Cf Matter of Granite Textile Mills, 76 N L. It. B. 613.