Lufkin Foundry & Machine Co.

National Labor Relations Board - Board Decisions

May 23, 1949

83 N.L.R.B. 768 (N.L.R.B. 1949)

In the Matter of LUFSIN FOUNDRY & MACHINE COMPANY, EMPLOYER
and AMERICAN FEDERATION OF LABOR, PETITIONER
Case No. 16-R-2174.-Decided May 23, 1949
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before Elmer Davis,
hearing officer of the National Labor Relations Board . Except as
specifically indicated herein, the rulings of the hearing officer made
at the hearing are free from prejudicial error and are hereby affirmed.
The hearing officer referred to the Board the Employer' s motion to
dismiss this proceeding. The Employer's motion is grounded upon
(1) the contention that the Board has no jurisdiction to proceed in
this case because no petition pursuant to Section 9 (c) of the Act is
properly on file, and (2) the Petitioner's failure to make a current
showing of interest necessitated by the long interval between the filing
of the petition and the hearing herein. The pertinent facts are as
follows :
The petition was filed on January 15, 1947. On February 6, 1947,
an Agreement for Consent Election was executed by the Petitioner
and the Employer. On February 18, 1947, the Regional Director con-
ducted the consent election, which the Petitioner lost. Thereafter, the
Petitioner filed objections to the election and a charge alleging vio-
lation of Section 8 (1) of the Act. On May 27, 1947, the Regional
Director issued his Report on Objections setting aside the election and
stating that a new election would be conducted under the terms of
the consent election agreement at a date, time, and place to be an-
nounced. With respect to the unfair labor practice charge, complaint
was issued and hearing was held thereon commencing May 21, 1948.1
On September 8, 1948, the Regional Director advised the parties that
he was dismissing the petition in view of the pendency of the unfair
s The Trial Examiner issued his Intermediate Report on October 29, 1948 , finding viola-
tion of Section 8 (1), as alleged ; the Employer having filed no exceptions within the
prescribed time, the recommended order of the Trial Examiner became the order of the
Board.
83 N. L. R. B., No. 116.
768
LUFKIN FOUNDRY & MACHINE COMPANY 769
labor practice case and that a review of such action by the Board
might be obtained. On September 11, 1948, the Petitioner filed its
appeal with, the Board. Thereafter, the Regional Director withdrew
his dismissal of the petition and indicated that the case would beset
down for hearing? On November 15, 1948, the Petitioner, by letter,
protested the holding of a hearing in the matter and insisted that a
second election be conducted pursuant to the terms of the consent
election agreement. On November 20, 1948, the Employer filed with
the Board a motion praying that the Regional Director be ordered
not to proceed further in the case on the ground that his dismissal of
September 8, 1948, constituted a final disposition under Section 203.61
of Board Rules and Regulations.'
We find no merit in the Employer's position and hereby deny its
motion.. The Regional Director in dismissing the petition on Sep-
tember 8, 1948, proceeded pursuant to Section 203.63 of Board Rules
and Regulations and Section 202.17 of Board Statements of Procedure
which set forth the Regional Director's authority to dismiss and there-
fore, by implication, his authority to withdraw such action 4 The
Regional Director's dismissal having been appealed within the 10 days
provided therefor, his action had not become final and, consequently,
could have been effectively withdrawn. Moreover, the Employer was
in no way prejudiced by the Regional Director's action.
Concerning the currency of the Petitioner's showing of interest, it
is the Board's thoroughly settled policy that this is entirely an admin-
istrative matter not open to question or attack by the parties. Further-
more, it is apparent from the facts that the delay in this proceeding was
occasioned by no fault of the Petitioner.'
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
National Labor Relations Act.
2. The Petitioner is a labor organization claiming to represent cer-
tain employees of the Employer.
Intervention is sought by Lodge 1808, International Association of
Machinists, herein called the IAM. The Petitioner opposes such
intervention on the ground that the IAM was notified of the consent
election proceedings in February 1947, but expressly waived its interest
therein. On November 24, 1948, the Regional Director granted the
2 By letter to the Regional Director dated October 25, 1948 , the Petitioner specifically
waived the unfair labor practices alleged in the pending complaint case as grounds for
protesting any election to be conducted.
8 Section 203.61 pertains to Board procedure following an election . Thus, the Em-
ployer contends that the action of September 8, 1948, was the Regional Director's final
step in disposing of the election and the objections thereto.
4 Matter of Armstrong Cork Company , 80 N. L . R. B. 566.
5 lbid; see also Matter of The Northern Trust Company, 69 N. L R . B. 652.
770 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
• •IAM's motion to intervene-and thereafter served IAM with Notice of
• Hearing herein. At the hearing, this action of the Regional Director
was affirmed by the hearing officer and the IAM was permitted to par-
ticipate in, the hearing as an intervenor. In these respects, for reasons
hereinafter discussed, we hereby overrule the Regional Director and
the hearing officer and deny the IAM's motion to intervene.6
We are mindful of the fact that there has been a considerable lapse
of time since the filing of the -petition herein. However, as shown
-above, the pendency of unfair labor practice proceedings against the
Employer precluded further action on the petition after the Regional
Director set aside the consent election.' Investigation of the peti-
tion can now be resumed. Prior to the consent election in February
1947, the IAM expressly waived any interest it may then have had
with respect to any of the employees covered by the petition: It must
be presumed, therefore, that the IAM had no interest in these employees
at the time of the consent election agreement.8 Upon these facts, we
believe that the issue of intervention under consideration is governed,
in principle, by the settled rule of the United Boat Service case .9 The
basic policy of the Board, as described in the latter case , requires
that a labor organization seeking to intervene after the close of a hear-
ing establish that it had an adequate representative interest in the
employees in question as of the time of the hearing.10 This rule has,
been applied to deny intervention after the close of hearing in cases
,where the original election has not yet been held," and where, as in
- the situation before us, intervention is sought after the original elec-
8 However , we do not find it necessary to remand this case to the Regional Director
for a rehearing , as there is no indication in the record that the IAM's participation in the
conduct of the hearing affects the accuracy and the completeness of the record for a proper
disposition of the case, or in any way prejudices the Petitioner or the Employer herein.
° The Petitioner now requests that the Board order the Regional Director to proceed
with the holding of a second election pursuant to the Agreement for Consent Election.
There is no question that the Regional Director had full power to conduct such a second
election, at the appropriate time, under the terms of this agreement . He chose rather to
set the case down for formal hearing on the petition in view of the involved circumstances
herein , including the long lapse of time since the original election . Thus, in effect, the
case was removed from the framework of the consent election agreement and transferred
to the Board for decision on all issues. We cannot say that this action on the part of the
Regional Director was an abuse of discretion . Moreover, the procedure adopted by him
clearly resulted in no prejudice to any of the parties.
8 The designation cards submitted by the IAM in support of its motion to intervene were
dated approximately 10 months after the consent election.
9 Matter of The United Boat Service Corporation , 55 N L . R. B. 671 ( March 22, 1944).
10 This policy of the Board is based upon the premise that "expeditious investigation
and certification of representatives is essential to the proper administration of the Act."
Matter of American Woolen Company, 32 N. L. R. B . 1, 8. However , the rule has been
applied even though, as in the present case, granting motion for belated intervention would
not in itself occasion any delay in the proceedings . See, e. g., Matter of The United Boat
,Service Corporation, supra.
11 See, e. g, Matter of Consolidated Vultee Aircraft Corporation , 80 N L . R. B. 116.
LUFKIN FOUNDRY & MACHINE COMPANY ` { .771
-tion has been'set aside but prior to the holding of a new election onAhe
petition 12
In the,instant case, by utilizing the Board's consent election pro-
cedure, the parties were able to dispense with the formality of a hear-
ing. The mere circumstance that no formal hearing preceddd' the
original election does not, in our opinion, remove the case from the
applicability of the United Boat Service rule. The Agreement for
Consent Election took the place of the formal hearing. We find, there-
fore, that because it has failed to establish a representative interest in
the employees affected by this petition as of the date of the consent
election agreement herein, the IAM is not now entitled to intervene.ls
3. A question affecting commerce exists concerning the representa-
tion of certain employees of the Employer, within the meaning of Sec-
'tiori9 (c) (1) and Section 2 (6) and' (7) of the Act.
4. The following employees of the Employer constitute a unit appro-
priate for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act:
All production and maintenance employees of the Employer at its
Lufkin, Texas, plant, including shipping clerks, but excluding office
and clerical employees, -guards, laboratory and technical employees,
and supervisors .1.4
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with the Employer, elections 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 was
heard, and subject to Sections 203.61 and 203.62 of National Labor
Relations Board Rules and Regulations-Series 5, as amended, among
the employees in the unit found appropriate in paragraph numbered 4,
' Matter of The May Department Stores Company, 61 N. L . R B. 258, 276
"Compare the Board ' s administrative decisions on appeals from actions of Regional
Directors in F. W. Woolworth Company, Case No. 2-RC-381 , December 28, 1948, and Case
No. 2-RC-989, January 14 , 1949, and in Univis Lens Co., Case No . 9-RC-374, March 11,
1949. In the Woolworth cases a majority of the Board upheld the Regional Director's
denial of a request to intervene in a second election , after the original consent election had
been set aside , on the ground , in part, that the evidence of interest of the union seeking to
intervene post-dated the consent election agreement . Similarly , in the Univi8 Lens case
the Board majority, relying upon the United Boat Service rule, supra, upheld the Regional
Director in dismissing a petition for certification filed during the pendency of a decertifica-
tion proceeding involving the same employees . The authorization cards evidencing the
petitioner 's interest in the Univis Lens case were secured after the holding of the initial
decertification election as to which objections were being considered by the Board . Matter
of Litchfield Manufacturing Co., 70 N . L. R. B. 900 ( 1946 ) insofar as it is inconsistent here-
with is hereby overruled.
11 This is substantially the same unit used in the earlier consent election.
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
above, who were employed during the pay-roll period immediately
preceding the date of this Direction=of Election; s includingsemployees-•
who did not work during said pay-roll period because they were ill
or on vacation or temporarily laid off,1° 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 exclud-
ing employees on strike who are not entitled to reinstatement, to de-
termine whether or not they desire to be represented, for purposes of
collective bargaining, by American Federation of Labor.
CHAIRMAN HERZO(i and MEMBER HousTON, dissenting in part :
We are unable to agree with so much of this decision as denies the
I. A. M. a place on the ballot in the election we are directing. The
original election was held more than 2 years ago. We think it more
important that the ballot permit the employees a full opportunity to
express their current choice than that a questionable technical right
of the petitioning union be protected.
We do not consider the issue presented by the I. A. M.'s motion to
intervene to be governed in any way by the rule in the United Boat
Service case. We believe that it should be treated as was the quite
similar issue in the later Litchfield Manufacturing Co., case,17 in which
intervention was permitted. We note that that case is now overruled
.by the majority, although we cannot find, in the cases relied upon-
with the second of which we disagreed-any valid reason for the
reversal.
16 No party objects to the use of a current pay roll.
19 The parties are in agreement that the employees in the construction gang under Foreman
Beaver are temporary employees and therefore not eligible to vote.
14 70 N . L. R. B. 900 (1946).