McGraw-Edison Co.

National Labor Relations Board - Board Decisions

Oct 24, 1972

199 N.L.R.B. 1017 (N.L.R.B. 1972)

NATIONAL ELECTRIC COIL 1017
National Electric Coil Division , of McGraw-Edison
Company and Harlan County Workers Association,
Petitioner. Case 9-RC-9523
October 24, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
PENELLO
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as' amended, a
hearing was held before Hearing Officer Wayne E.
Natale of the National Labor Relations Board.' Fol-
lowing the close of the hearing the Regional Director
for Region 9 transferred this case to the Board for
decision. Thereafter, .the Employer and Intervenor
filed briefs with the Board.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error.' They are hereby affirmed.
Upon the entire record in this proceeding, the
Board finds:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the pur-
poses of the Act to assert jurisdiction herein.
2. The labor organizations involved claim to rep-
resent certain employees of the Employer.
3. A question affecting commerce does not exist
concerning the representation of certain employees of
the Employer within the meaning of Section 9(c)(1)
and Section 2(6) and (7) of the Act for the following
reasons:
The Petitioner filed the instant petition in the
historic unit in the face of a 20-year collective-bar-
gaining relationship with the Employer. A current
agreement is effective from September 21, 1970, to
i International Union of Electrical , Radio and Machine Workers, AFL-
CIO-CLC, and its Local 658 (herein called Intervenor) intervened at the
hearing based upon a showing of interest.
2 The Intervenor contends that the Hearing Officer erred in calling wit-
nesses and permitting evidence concerning "the alleged sponsorship for the
filing of the petition." In view of the circumstances of this case , we find no
merit in that contention . This petition was filed under the principles of
General Box Company, 82 NLRB 678, which allows recognized unions to seek
certification at any time . The issue was squarely raised by the Employer
whether the Petitioner and Intervenor were acting in concert concerning the
filing of this petition , which , if true , would strike at the very core of the
petition 's purpose, and its validity . As such, it formed a proper subject for
inquiry, and the Hearing Officer , who is charged with the responsibility in
this nonadversary type proceeding of making a complete record, would have
been remiss in his duties had he not pursued it . Moreover , this is not a
situation , as contended by the Intervenor , that entails delving into areas
involving potential unfair labor practices.
September 23, 1973, and covers the same unit as
sought in the petition. But while the Petitioner has
been the recognized bargaining agent in the peti-
tioned-for unit for all these years, it has never received
the certification of the Board.
Petitioner contends that certification is the sole
purpose of the instant petition-filed during the con-
tract term-and thus, under the rational of General
Box Company, 82 NLRB 678, the petition is properly
filed. The Intervenor claims that since the petition
raises a question concerning representation under
current Board law, it is entitled to intervene based on
its showing of interest. The Employer contends, inter
alia, that the petition should be dismissed on the
ground that it is an ill-disguised attempt by the Peti-
tioner to change its affiliation and escape from its
current collective-bargaining agreement,' a purpose
totally at odds with the principles of General Box,
supra. We find merit in the Employer's position.
The Board's decision in General Box, supra. has
firmly established the principle that an uncertified
union which already enjoys recognition can file a peti-
tion at any time during a; contract's term to secure the
benefits of certification. The rationale behind this de-
cision is that certification affords certain statutory
benefits under Section 8(b)(4) of the Act, and lends
stability, security, and permanency to the bargaining
relationship primarily by removing challenges to a
union's majority status for a 1-year period following
the date of certification. The Board reasoned that
these benefits of certification would provide greater
protection to an already recognized union against
raids of competing unions with jurisdictional claims
or organizational designs on the employees involved.
For these reasons, a petition filed by a recognized but
uncertified labor organization is treated by the Board
as an exception to its contract-bar rules. And once a
petition is filed under the General Box exception, it is
viewed by the Board the same as any other petition
that raises a question concerning representation and
the contracting union's contract cannot thereafter act
as a bar. Accordingly, the Board has permitted other
unions to intervene 4 and has even directed an election
in a case where the petitioner sought to withdraw its
petition after intervention occurred.'
3 At the hearing the Intervenor was asked if it would continue the agree-
ment for the balance of its term The Intervenor stated it would if the
4ployees so desired but did not feel compelled to do so.em
Ottawa Machine Products Co., 120 NLRB 1133, Puerto Rico Cement Cor-
poration, 97 NLRB 382. In fight of these decisions , the Employer's alternate
argument that the Intervenor should be barred from the ballot under the
doctrine of contract bar is disposed of as lacking in merit.
s Jefferson City Cabinet Co., 120 NLRB 327. In this case and those cited
in In . 4, above , it was quite clear that the unions involved were legitimate
rivals contesting for the right to represent the sought-after employees, the
incumbent earnestly battling to retain its position as their bargaining repre-
sentative while its rival tried to replace it We consider the presence of such
a rivalry to be a determining factor in General Box cases of this type . Unlike
Continued
199 NLRB No. 133
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, the General Box contract bar exception
requires the Board to be vigilant in guarding against
its abuse by a party or parties attempting to circum-
vent our normal contract bar rules. Where a second
union seeks a place on the ballot through interven-
tion, we are confronted with a situation which creates
the greatest potential and opportunity for subterfuge
and misuse of this exception, and which must, there-
fore, be given the closest scrutiny by the Board. Con-
sequently, it is necessary that we carefully examine
and evaluate the facts of this case to determine wheth-
er the Petitioner's petition was, as it professes, filed
solely to obtain certification for itself, or to provide a
choice for the employees in selecting a bargaining
representative through our election processes at a
time when the existing contract would otherwise have
barred a rival claim.
According to the uncontradicted testimony of
George Cox, Petitioner's vice president and an em-
ployee of the Employer,6 at a regular monthly meeting
of Petitioner's members held on April 1, 1972, a mo-
tion was made that the Petitioner "be able to become
certified through the National Labor Relations.Board
of a union of our own choosing so that we be able to
receive the benefits of such." (Emphasis supplied.)
The motion carried. Cox further testified that he and
other members had heard that the Intervenor would
intervene if asked. Thus, when the motion passed, the
Intervenor's representatives, who apparently had sta-
tioned themselves near the meeting room, were invit-
ed into the meeting by Petitioner at the request of the
membership, and thereafter permitted by the Petition-
er to circulate and secure signatures to authorization
cards designating the Intervenor as bargaining agent.
The testimony of John C. Barker, the
Intervenor's organizational coordinator for Ohio,
Kentucky, and West Virginia, establishes that the
presence of these representatives near the Petitioner's
meeting was not accidental. He testified that he had
heard from one of his field representatives as much as
a month prior to the April 1 meeting that there were
rumors that the Petitioner was considering filing a
petition?
He states, consequently, that he went to Harlan
on April 1 with the avowed purpose of trying to get
into the meeting with the help of the committee of
employees the Intervenor was already working with,
all of whom were members of the Petitioner but not
officers thereof.'
the situations in the cases cited above, we are unable to detect the existence
of any such relationship between the Petitioner and Intervenor for the rea-
sons discussed, infra
6 It appears that the Petitioner is an independent labor organization
formed and administered by the employees of the Employer at its Harlan,
Kentucky, facility.
r The Intervenor represents employees at the Employer's plants in Colum-
bus, Ohio, and Bluefield, West Virginia
The undisputed evidence also shows that on May
3 Cox called a special meeting of the Petitioner to
quell rumors that the Employer might shut down or
take other reprisals because of the situation created by
the petition. The Intervenor's representatives were
also invited by the Petitioner to attend this meeting,
which they did. The reason for the invitation as ad-
vanced by Cox in his testimony was that the Interve-
nor-had already asked to intervene." The record does
not reveal what took place at this meeting. These last
events occurred prior to the hearing in this case which
was held on May 17, 1972. These facts establish that
the Petitioner knew before, the motion to file this
petition was made and carried, of the Intervenor's
presence outside the meeting room, and of that labor
organization's keen interest and readiness to organize
the unit employees; that the Petitioner knew then that
there already was an active dissident movement
among its members in favor of the Intervenor's sup-
planting it as bargaining representative; that the Peti-
tioner knew when it entertained the motion that if it
carried, as it did, that the filing of such a petition
would more likely than not lead to the demise of
Petitioner as an operating labor organization; that the
Petitioner knew the Intervenor would accept the invi-
tation to come into the meeting and participate there-
in; and that the Petitioner knew-or took action to
make such knowledge certain by permitting the In-
tervenor to circulate among the membership to solicit
signed pledge cards-that the Intervenor's efforts to
organize the members present would be successful.
Yet armed with all this knowledge and fully aware of
the consequences of its conduct, including the certain-
ty that intervention by the Intervenor would follow,
the Petitioner filed the instant petition, and claims
before us, that it merely seeks the benefit of certifica-
tion, so as to protect it from rival claims such as that
made by Intervenor.
To us, the only valid explanation for the conduct
of the Petitioner in the face of the Intervenor's threat
to its continued existence, is that the Petitioner sought
an election for the precise purpose of bringing in the
Intervenor as bargaining agent for the employees. As
a preliminary means towards that end, the Petitioner,
before filing its petition, willingly and wholeheartedly
extended its aid and cooperation to the Intervenor's
cause by thrusting the Intervenor upon the member-
ship at the April meeting. As the device to fulfill that
goal, the Petitioner then filed the petition herein. And
as confirmation of that purpose, the Petitioner invited
the Intervenor to its emergency meeting on May 3 to
8 According to James Parker, the Employer's Harlan plant manager, on or
about April 4 or 5 he was told by Petitioner's president, Earl Hibbard, that
Hibbard was not involved in bonging representatives of the Intervenor into
the April meeting of Petitioner ; that such was the work of "an older group "
Hibbard did not testify. He was on a job for the Employer in California at
the time of the hearing.
NATIONAL ELECTRIC COIL 1019
present a united front against rumors of dire action by
the Employer . Indeed, that a desired change in repre-
sentatives was the real purpose fueling the Petitioner's
conduct all along can also be gleaned from the testi-
mony of Cox , its vice president , when he stated that
the motion concerning the petition was made to ena-
ble the Petitioner "to become certified ... of a union
of our own choosing" and later , when he testified that
the Petitioner was invited into the second meeting,
because they "had already asked to intervene," al-
though at the time the hearing had not yet been held.
Clearly, based on the facts presented here as illumi-
nated by Cox's testimony , the petition was aimed at
giving the employees that choice and the invitation
was made-in the same spirit accompanying the one
extended on April 1-because the Petitioner and its
members welcomed the idea of such intervention.
In view of the foregoing , we are unwilling to
make our election processes available to the parties in
this case . The effect (even if we had found it was not
the intent) of Petitioner 's course of action has been to
establish a purpose other than certification behind the
filing of its petition , thereby making unwarranted the
application of our General Box rationale . Thus, be-
cause there is no basis for applying the General Box
contract bar exception to the petition of Petitioner in
this case , there is no reason to remove the current
collective-bargaining agreement between the Petition-
er and Employer as a bar . We find, therefore, that
there is no question concerning representation to be
resolved by an election.
Accordingly , we shall dismiss the petition.
ORDER
It is hereby ordered that the petition herein be,
and it hereby is, dismissed.