Milton Bradley Co.

National Labor Relations Board - Board Decisions

Oct 6, 1939

15 N.L.R.B. 938 (N.L.R.B. 1939)

III the Matter of MILTON BRADLEY COMPANY and, INTERNATIONAL
PRINTING PRESSMEN AND ASSISTANTS UNION OF NORTH AMERICA
(A. F. L.)
Case No. R-1371.-Decided October 6, 1939
Toy and Novelty Manufacturing Industry-Investigation of Representatives.-.
petition for dismissed where no question concerning representation has arisen
in a unit which is appropriate for the purposes of collective bargaining-Unit
Appropriate for Collective Bargaining: unit sought in petition composed of print-
ing pressmen , found not to. be appropriate : divergent views of Board members :
(1) (Smith, concurring) since there is no evidence of past history of collective
bargaining on part of the pressmen , no justification for weakening the bargain-
ing strength of employees as a whole by permitting craft unit to split off from
the industrial unit; ( 2) (Leiserson , concurring ) prior and existing contracts
established an industrial unit, including pressmen, as appropriate ; Board not
authorized to split this unit; ( 3) (Madden, dissenting ) where considerations
determinative of appropriate .unit are such that either of two contentions is
valid, decisive factor is the desire of the employees involved.
Mr. Benjamin E. Gordon, for the Board.
Mr. Edward B. Cooley, and Mr. Abe Diamond, of Springfield,,
Mass. , and Mr. Lee Pressman, of Washington, D. C., for Local 224.
Mr. Anthony J. De Andrade, of Boston, Mass., for the International.
Mr. Samuel Sandberg, of New York City, for the Novelty Workers.
Mr. Gilbert V. Rosenberg, of counsel to the Board.
DECISION
AND
ORDER.
STATEMENT OF THE CASE,
On March 21, 1939, International Printing Pressmen and Assist-
ants Union of North America, affiliated with the American Federation
of Labor,' herein called the International, filed with the Regional
Director for the First Region (Boston, Massachusetts) a petition
alleging that a question affecting commerce had arisen concerning the
representation of employees of Milton Bradley Company, Spring-
'Incorrectly designated in the notice of hearing as international Printing Pressmen and
Assistants Union of North America (A. F. L.).
15 N. L. R. B., No. 105.
938
MILTON BRADLEY COMPANY 939
field, Massachusetts, herein called the Company, and requesting an
investigation and certification of representatives pursuant to Section
9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called
the Act. On April 26, 1939, the National Labor Relations Board,
herein called the Board, acting pursuant to Section 9 (c) of the Act
and Article III, Section,3, of National Labor Relations Board Rules
and Regulations-Series 1, as amended, ordered an investigation and
authorized the Regional Director to conduct it and to provide for
an appropriate hearing upon due notice.
On May 3, 1939, the Regional Director issued a notice of hearing,
copies of which were duly served upon the Company, the Interna-
tional, Milton Bradley Industrial Union, Local 224, chartered by
International Union of Playthings and Novelty Workers of America,
affiliated with the Congress of Industrial Organizations, herein called
Local 224, a labor organization claiming to represent employees di-
rectly affected by the investigation, and International Union of
Playthings and Novelty _ Workers of America, herein called the
Novelty Workers. Pursuant to notice, a hearing was held on
May 11, 1939, at Springfield, Massachusetts, before E. G. Smith, the
Trial Examiner duly designated by the Board. The Board and
Local 224 were represented by counsel, the International and the
Novelty Workers by representatives; all participated in the hearing.
Full opportunity to be heard, to examine and cross-examine wit-
nesses, and to introduce evidence bearing upon the issues was afforded
all parties. During the course of the hearing the Trial Examiner
made several rulings on motions and on objections to the admission
of evidence. The Board has reviewed the 'rulings of the Trial Ex-
aminer and finds that no prejudicial errors were committed. The
rulings are hereby -affirmed. Pursuant to notice duly served on all
the parties, a hearing was held before the Board in Washington,
D. C., on June 23, 1939, for the purpose of oral. argument. The
International was represented by its representative and Local 224 by
counsel, and both participated in the argument'.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY'
Milton Bradley Company, a. Massachusetts corporation, is engaged
at its plant in Springfield, Massachusetts, in the manufacture of
toys, games, novelties, and -advertising materials. During the year
1938 the Company sold finished products valued at approximately
$3,147,000, of which approximately 90 per cent were shipped from the
Company's plant to destinations outside the State of Massachusetts.
940 DECISIONS OF NATIONi L LABOR RELATIONS BOARD
During the same period, the Company purchased raw materials
valued at approximately $644,977, of which approximately 83 per
cent were shipped to the Company's plant from points outside the
State of Massachusetts. The Company employs more than 370
persons.
II. THE ORGANIZATIONS INVOLVED
International Printing Pressmen and Assistants Union of North
America is a labor organization affiliated with the American Federa-
tion of Labor, admitting to membership all persons employed. in the
printing-pressroom departments of all establishments in the United
States or Canada.
Milton Bradley Industrial Union, Local 224, is a labor organiza-
tion chartered by International Union of Playthings and Novelty
Workers, affiliated with the Congress of Industrial Organizations,
admitting to membership all employees of the Company except fore-
men and supervisors.
III. THE APPROPRIATE UNIT
The International alleges in its petition that all the pressmen, press
assistants, job press feeders, and lock-up men employed by the Com-
pany, herein sometimes collectively called the pressmen, constitute
a unit appropriate for the purposes of collective bargaining. It
asserts that 13 of the 15 employees in department 22 of the plant are
properly included in such unit. Local 224 contends that all em-
ployees of the Company, excluding lithographers, supervisors, and
clerks, constitute an appropriate unit. The Company expresses no
preference concerning the appropriate unit.
For the reasons set forth in the separate opinions below, we find
that the bargaining unit sought by the International is not appropri-
ate for the purposes of collective bargaining.
IV. THE QUESTION CONCERNING REPRESENTATION
Since the bargaining unit sought to be established by the petition
is inappropriate for the purposes of collective bargaining, we find
that no question has been raised concerning the representation of
employees in an appropriate bargaining unit.
On the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSION OF LAW
No question concerning the representation of employees of the
Milton Bradley Company in a unit which is appropriatd for the
MILTON BRADLEY COMPANY 941
purposes of collective bargaining has arisen within the meaning of
Section 9 (c) of the National Labor Relations Act.
ORDER
Upon the basis of the foregoing findings of fact and conclusion
of law, the National Labor Relations Board hereby orders that the
petition for investigation and certification filed by International
Printing Pressmen and Assistants Union of North America, be, and
it hereby is, dismissed.
Separate concurring opinion of MR. EDWIN S. SMITH :
In June 1937, pursuant to the result of a consent election conducted
by the Board among all the Company's employees, except lithogra-
phers; supervisors and clerks, Local 224 3 was recognized by the Com-
pany as the sole bargaining agent of all such employees, including
the pressmen. Local 224 and the Company thereupon entered into a
written exclusive bargaining contract for the remainder of 1937.
Thereafter they entered into a parole exclusive bargaining contract
for 1938. At the time of the hearing the Company and Local 224
were negotiating a new contract for the large unit, subject to the
decision of the Board in this proceeding. Both contracts between
Local 224 and the Company and the negotiations which were pending
at the time of the hearing covered wages, hours, and working condi-
tions of all employees of the Company except the lithographers.
Prior to March 1939 no attempt had been made by or on behalf of
the pressmen to bargain separately. On March 10, 1939, the Inter-
national requested the Company to recognize it as the exclusive bar-
gaining agent of the employees in department 22. The Company
refused to grant such recognition prior to certification by the Board.
The Company employs over 370 persons in 23 different departments,
of which 14 are manufacturing departments and 9 are service centers.
The employees are classified in approximately 275 different functional
occupations. Working hours and base-pay rates are approximately
the same in all the departments except the lithographing department.
Approximately 20 operations are performed in printing. department
22. Between 4 and 5 thousand different items go through some oper-
ation in that department, of which approximately 70 to 80 per cent are
sent to, or received from, other departments for further processing.
2 The lithographers were excluded from the unit by agreement between the Lithographers,
Union and Local 224 and did not participate in the election.
At this time Local 224 was chartered by United Electrical and Radio Workers of Amer-
ica (C. I. 0.). On April 12, 1939, it transferred its affiliation to International Union of
Playthings and Novelty Workers of America ( C. I. 0.).
942. DECISIONS OF NATIONAL LABOR RELATIONS BOARD
For the reasons stated in my dissenting opinion in Matter of 411is-
Chalmers Manufactur,irng Company,4 and in my concurring opinion
in Matter of American Can Company,5 I concur in the decision that
a unit of pressmen is not appropriate in this case.
The separate opinion of Mr. Leiserson states that in the consent
election, which included the employees of McLaughlin Bros., Inc:, a
subsidiary of the Company, an opportunity was given for the press-
men to vote as a separate unit; that the. employees in department 22
of the Company were not included in the pressmen's unit but voted
with the other factory employees; and that this arrangement 'indi=
cates an agreement by the parties that the employees in department
22 should be "classified . . . as factory employees and not as print-
ing press craftsmen." The full details of the consent election do not
appear in the record. It is disclosed, however, that only the press-
men employed by McLaughlin Bros., Inc., voted as a separate unit.
The "Notice of Election" referred to by Mr. Leiserson is not part of
the record and it is very uncertain that the election was actually con-
ducted'in accordance with the Notice. In fact, at the oral argument
before the Board, the attorney for the International stated that when
he discovered it was proposed to'vote the pressmen of both companies
in the consent election as a separate unit he insisted that such a vote
be taken only among the pressmen of McLaughlin Bros., Inc. The
reason for thus varying the original plan (which was apparently
embodied in the Notice of Election) was that at the time Interna-
tional had no members among the pressmen employed by the Com-
pany. It has never been. disputed at any time that the employees
here claimed by the International as constituting a separate unit are
in fact pressmen and eligible to membership in the International. I
interpret the opinion of Mr. Leiserson to mean, therefore, not that
the employees in department 22 are not pressmen but that in the con-
sent election these employees voted in a single unit with the other
production employees.
I agree with the views expressed in the Chairman's dissenting
opinion that there is no language in the statute which contemplates
imprisoning the Board's findings as to unit within the framework of
a pre-existing contract. Furthermore, I likewise agree with Chair-
man Madden that, although the existence of a previous, contract
should be an important factor in guiding the Board's decisions as to
the appropriate unit, it is not necessarily conclusive.5a
d Matter of Allis-Chalmers Manufacturing Company and International Union, United
Automobile Workers of America, Local 248, 4 N. L. It. B . 159, 175.
5 Matter of American Can Company and Engineers Local No. 30, et al., 13 N. L. R. B.
1252.
6° Compare my concurring opinion Matter of American Can Company, supra.
MILTON BRADLEY COMPANY 943
Separate concurring opinion Of MR. WILLIAM M. LEISERSON:
On May 14, 1937, after a strike , an agreement was made by the
Company ( including also a subsidiary known as McLaughlin Bros.,
Inc.) with the representatives of its employees by which all parties
stipulated that an election should be conducted by the Board in which
the employees of all departments would be eligible to participate
-except those in the lithographing department . In this election three
separate ballots were taken , the employees being divided into three
:separate bargaining units. The "Notice of Election" printed by the
Board and signed by the Regional Director of the First Region read
in part as follows :
ELIGIBILITY OF VOTERS
Those eligible to vote are the production and maintenance em-
ployees of the Milton Bradley Company and McLoughlin Bros.,
Inc. whose names are on the payroll list as of May 11, 1937 and
who are not now permanently employed elsewhere.
Printing Pressmen, Assistants and Feeders.
Persons eligible to vote employed in the above classifications
will vote on a separate ballot containing the names of the C. I. O.
Local 224 and the International Printing Pressmen and Assist-
ants' Union of North America, A. F. of L.
Bookbindery Department.
Persons eligible to vote employed in the Bookbindery Depart-
ment will vote on a separate ballot which will contain the names
of the C. I. O. Local 224 and the International Brotherhood of
Book Binders, A. F. of L.
All Other Employees Eligible to Vote.
All other employees eligible to vote will vote on a ballot contain-
ing the name of the C. I. O. Local 224 and a block marked YES
:and one marked NO in which they mark their choice.
The election notice also reproduced samples of the three separate
ballots.
It is plain from this notice of election that the consent agreement
provided that the printing pressmen, assistants, and feeders constitute
an appropriate bargaining unit, and they' voted accordingly. The
International Printing Pressmen and Assistants' Union of North
America receiving a majority of the votes in this unit, and it accord-
ingly was designated as the exclusive representative of these em-
ployees. However, the employees in'department 22 were not included
in the unit with the printing pressmen but were classified and voted
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the third unit which included all the other factory employees.
In this unit Local 224 was victorious.
On June 11, 1937, pursuant to the results of the election, the Com-
pany entered into a written agreement with Local 224, the first
paragraph of which read as follows :
Recognition: The Employer recognizes the above Union as
the collective bargaining agency for factory employees to repre-
sent all factory employees, who are not members of the Litho-
graph Department, also excepting supervisors and clerks, with
respect to wages, hours and similar conditions of employment.
This agreement remained in effect until December 31, 1937, when it
was succeeded by another agreement containing the same recognition
clause, and the terms of this agreement are still in effect. The em-
ployees of department 22 have been covered by these agreements as an
integral part of the bargaining unit that includes the factory force.
On the basis of these facts, it seems clear that by voluntary agree-
ment and by collective bargaining contracts the employees have them-
selves together with the Company classified the employees of depart-
ment 22 as factory employees and not as printing-press craftsmen.
Had they been considered such craftsmen they would have been
eligible to vote the printing pressmen's ballot in the election. Under
these circumstances I ' do not think that it is within the authority of
the Board to split off the employees of department 22, to remove them
from the contract by which they are covered, and to reclassify them
in another bargaining unit with a separate and different contract.
These employees have acquired rights and privileges under the work-
ing contracts that now govern their relations with the Company which
the Board is not free to set aside or to ignore.
By assuming authority to alter bargaining units established and
maintained by collective agreements the Board endangers all union
contracts whether these are negotiated on a craft basis, a plant basis,
industry basis, or on the basis of any other unit that the parties have
found appropriate in bargaining collectively. Because craft unions
rarely consist of one craft only but commonly are a combination of
several skilled occupations together with helpers and other semi-
skilled and unskilled workers, the assumption of authority by the
Board in substituting its judgment as to the appropriateness of a unit
for the customs and practices of collective bargaining as evidenced by
contracts threatens with disruption craft unions as well as the unions
that are organized on a so-called industrial or other basis.
The International Association of Machinists includes mechanics
of various kinds and degrees of skill, as well as unskilled workers.
The same is true of the Brotherhood of Electrical Workers, the Hotel
MILTON BRADLEY COMPANY 945
and Restaurant Workers' Union which includes cooks, waiters, bar-
tenders, and dishwashers, the Amalgamated Meat Cutters and
Butcher Workmen, the Amalgamated Association of Street and Elec-
tric Railway Employees, the United Garment Workers, the Brother-
hood of Railway Clerks, and many others affiliated with the A. F.
of L. The same is true also of the so-called industrial unions affili-
ated with the C. I. 0. If the bargaining units maintained by these
organizations in their contracts may be changed or split by the Board
when it feels that other units are preferable, then the existence of
these unions as well as their established contractual relationships with
employers are at the mercy of the members of the Board. Every
disgruntled occupational group within a craft or other unit might
well demand and secure separate certification if the Board is not
bound by the bargaining units established by contracts.
It is argued that this result does not necessarily follow and that
nothing of the sort has. in fact happened. The complaints of both
C. I. 0. and A. F. of L. unions seem to me to indicate that it has
happened. But even assuming that it has not happened, if the
Board may consider units established by contracts as "fortuitous" and
if it is vested with authority to alter such established units when in
its judgment this is necessary or desirable, then of course the Board
may bring about a splitting or combining of established contractual
craft units whenever it so desires. If the authority is lodged in the
Board, as is contended, then the fact that it may not yet have been
exercised makes it no less dangerous to labor organizations and their
contracts with employers. I am of the opinion that Congress in-
tended the Board to be bound by the bargaining units established and
maintained by collective agreements.
Precisely this problem arose under the Railway Labor Act where
the term "craft or class of employees" is used in the same sense as
"appropriate bargaining unit" is used in the National Labor Relations
Act. In neither Act are the terms defined. Under the Railway Act
stationary engineers demanded separate representation from firemen
and oilers with whom they were combined by contract in a single bar-
gaining unit. Dining-car cooks wanted separate representation from
waiters and other dining-car employees where contracts of the Hotel
and Restaurant Workers' Union included all of them in a single
unit, or craft or class. Freight handlers petitioned for separate rep-
resentation where the Brotherhood of Railway Clerks had by con-
tracts established the craft or class to include all clerical, office, station,
and storehouse employees as a single bargaining unit. Yard con-
ductors attempted to split themselves off from yard brakemen where
the contracts included both in a single craft or class.
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Because of the vital interests involved the courts have been called
upon to review findings as to craft or class (or bargaining units)
under the Railway Labor Act. In Brotherhood of Railroad Train-
men v. National Mediation Board 6 the United States Court of Ap-
peals for the District of Columbia laid down the rule which is now
being followed in determining representation disputes under that Act :
The general purpose of the (Railway) Labor Act was to pro-
mote peaceful and conciliatory consideration of labor disputes
and especially to secure the right of collective bargaining through
a representative chosen by a majority of the employees in a par-
ticular craft or class. It is not going too far to say that the
basic and underlying purpose of the Act was to insure repre-
sentation in accordance with established custom to those em-
ployees whose interests are involved. But the Act leaves uncer-
tain the precise or exact meaning of the words "class or craft",
and we think obviously for the reason that it was intended by
Congress to adopt the designation of class or craft as determined
by the then current working agreement between the railroad and
particular groups or classes of its employees. And we find justi-
fication for this conclusion in paragraph seven of Sec. 2, which
provides that:
No carrier, its officers or agents shall change the rates of pay,
rules; or working conditions of its employees, as a class or em-
bodied in agreements except in the manner prescribed in such
agreements or in section 6 of this Act.
In other words, that no carrier shall change the terms of its
working agreement with any class of employees, as that class is
embodied in and declared to exist by the working agreement,
except in accordance with the terms of the agreement or in con-
formity with the Act. In the light of this provision-and that
of the general scheme of the Act as a whole-we think it is ob-
vious that how classes are to be formed and who shall compose
them are matters left to the employees themselves; and so we
think that by reference to the terms of the working agreement
which the employees have made, is to be found at least some evi-
dence of who are members of the craft or class covered by that
agreement. The Board also recognizes that this is a criterion,
for in its First Annual Report to Congress, after noting that the
Act does not give it authority to define the crafts or classes, it
says : "So far as possible the Board has followed the past practice
of the employees in grouping themselves for representation pur-
6 88 F. (2d ) 757, decided Dec. 21, 1936.
MILTON BRADLEY COMPANY 947
poses and of the carriers in making agreements with such
representatives."
Here we are clearly told that the precise meaning of the words
"craft. or class" being .left uncertain, it was intended by Congress "to
adopt the designation of class or craft as determined by the then
current working agreement between the railroad and the particular
groups or classes of its employees." The National Labor Relations
Act leaves uncertain the precise meaning of the term "appropriate
bargaining unit," I believe, for the same reason that "craft or class"
is undefined in. the Railway Act;-because Congress intended to
adopt the designation "bargaining unit" as determined by the work-
ing agreements voluntarily made by the employees with their em-
ployers. Many' cases come to the Board, of course, where no bar-
gaining units have been established by collective bargaining agree-
ments. In these cases it is clear that the appropriate units are those
determined by the employees' own voluntary organization. Where
no contract provides otherwise, every separately organized group is
entitled. to select or vote for representatives in a unit based on its
own.form of organization.
This' rule is working successfully, and satisfactorily to all con-
cerned, under the Railway Labor Act. I am of the opinion that the
same rule is required to control the, administration of the National
Labor Relations Act, if the purposes of the Act are to be accom-
plished.
Although admitting that collective bargaining custom and prac-
tice as evidenced by working contracts must be considered by the
Board in determining appropriate bargaining units, the majority of
the Board contends that other factors must also be considered. -In
the Pittsburgh Plate Glass Company case7 these other factors are
enumerated. They include uniformity'of wages, hours, and working
conditions as well as manufacturing processes, the necessity of plac-
ing employees on a basis of equal bargaining strength with the em-
ployer and avoiding disharmony in the, bargaining process, the
continued insistence of legitimate labor organization on a particular
form of bargaining unit, and the feasibility of a particular-form of
bargaining unit. In the present case' the majority mentions also the
history of collective bargaining throughout the industry as a whole,.
as well as the structure of the various labor organizations which
admit to membership the employees, or some of the employees, in
question.
It does not seem to me that these are objective criteria on the basis
of which a determination of a bargaining unit can be- made in ac-
'' Matter of Pittsburgh Plate (class Co. and Federation of Flat Glass Workers of America,
affiliated with the C. I. 0., 15 N. L. It. B. 515.
.
'
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cordance with the provisions of the National Labor Relations Act.
Such factors do not provide a rule or principle which binds the mem-
bers of the Board as well as the parties whose disputes are to be set-
tled. They make the final determination a personal judgment instead
of a rule of law. The listed factors are more in the nature of argu-
ments that the protagonists of one form of structure and organization
of labor unions may use as against those who favor other forms.
I do not think that it was intended by Congress when it adopted
the Act that a government administrative board should decide in
favor of one or another form of labor organization by weighing
arguments or the factors indicated in order to determine the form that
is best for collective bargaining. It seems plain to me that the intent
of the Act was to keep the Government out of any such controversies
and to leave the employees free to organize on a craft, industrial,
plant, or other basis as they deem best, without any interference from
their employers. Only by considering itself bound by the bargaining
units established and maintained by collective bargaining contracts
can an administrative board keep itself from taking sides in juris-
dictional controversies among labor organizations which differ as to
the most effective form of organization for collective bargaining
purposes.
In view of these considerations I am of the opinion that the
Board is constrained by the existing contract covering factory em-
ployees to dismiss the petition in the present case.
Separate dissenting opinion of CHAIRMAN MADDEN :
I am of the opinion that the pressmen should be given the oppor-
tunity to determine by a secret ballot whether they wish to bargain
collectively through the International Printing Pressmen's Union
as a separate unit, or whether they wish to merge with the other
employees in an industrial unit. My reasons for this conclusion are
the same as those expressed in my dissenting opinion in Matter of
American Can Company.8
I further do not agree. with the reasoning of my colleague that
the Board is not authorized to find a unit different from that which
the parties in collective bargaining have considered to be appropriate
and which they have embodied in a contracts I believe that the past
13 N. L. R. B. 1252.
The opinion of Mr . Lelserson states that "the terms " of the 1938 contract "are still in
effect," and that, "Under these circumstances I do not think that it is within the authority
of the Board to split off the employees of department 22, to remove them from the contract
by which they are covered, and to reclassify them in another bargaining unit with a sepa-
rate and different contract . These employees have acquired rights and privileges under
the working contracts that now govern their relations with the Company which the Board
is not free to set aside or to ignore ." Elsewhere the opinion concludes that "the Board is
constrained by the existing contract covering factory employes to dismiss the petition in
the present case." The record seems clear, however, that both the 1937 and the 1938 con-
tracts have expired and that at'the time of the hearing no contract covering the factory
employees or including the employees of department 22 was in existence.
MILTON BRADLEY COMPANY 949
history of collective bargaining in a plant,_as evidenced by collective
bargaining agreements, is a factor entitled to great weight in the
determination of the appropriate bargaining unit. But I do not be-
lieve that 'a, prior exclusive bargaining contract is, by itself, decisive
of the issue. As I have previously had occasion to point out, the form
which a collective agreement takes normally depends upon a variety
of fortuitous circumstances; differing from plant to plant 10 It can-
not be said by any means to represent invariably the most effective
unit for collective bargaining or the unit that is fairest to the con-
flicting interests involved. Other important factors cannot be ig-
nored. These include, for instance, the history of collective bargaining
throughout the industry as a whole as well as the structure of various
labor organizations which admit to membership the employees, or
some of the employees, in question.
Furthermore, while an exclusive bargaining contract may represent
the agreement of-employers and employees at the time it is executed,
clearly it does not necessarily represent that such agreement will
continue forever. If we are to be guided solely by the terms of
previous contracts, however, it is in practical effect impossible, after
a contract has once been made with an industrial union, for craft
groups of employees ever to obtain craft units except by first des-
troying the industrial union. Thus unions which may have organized
on the basis of craft units in other plants for many years are effec-
tively excluded forever from the plant. And, indeed, a craft union
may have bargained for many years for a craft unit , but if at one
election or in one contract the workmen in the unit amalgamate
themselves with a larger industrial unit, it becomes perpetually im-
possible for them ever to resume their former form of organization.
Again, an exclusive bargaining contract may not necessarily repre-
sent the agreement of employer and employees even at the time it is
executed. It may be and often is an expedient, a compromise, a
gentleman's agreement between two contesting groups to seem to
amalgamate in order to present a united bargaining front to the em-
ployer, while really giving separate representation to the two groups.
These arrangements, often used to settle troublesome industrial-con-
troversies, are made unsafe by the doctrine of the concurring opinion.
I doubt whether unions will resort to these desirable settlements, re-
garded by them as experimental and tentative, if the Board treats
them as final and perpetual determinations of the form of the bar-
gaining unit.
I further cannot agree that a reservation of the right of the Board
to find a different unit than that embodied in an exclusive bargaining
10 Matter of American Can Company and Engineer8 Local No. 10, at at ., 13 N. L. R. B.
1252; Matter of Clyde Mallory Lines and Industrial Union of Marine R Shipbuilding
Workers of America, Local No. 22, 15 N. L. R. B. 1008.
199549-39-vol. 15--61
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contract "threatens with disruption craft unions as well as the unions
that are organized on a so-called industrial or other basis." The
argument seems to be based on the contention that a failure to follow
the unit established by a previous contract involves a willingness to
create a separate unit out of every subordinate group which wishes to
break away. - This result does not follow and nothing of the sort has
in fact happened in actual practice.. Indeed, the Board has consist-
ently held that it would not find appropriate a subordinate part or
fragment of the group which has conventionally bargained on a craft
basis.11 It is true that the application of the Globe doctrine may
result in a portion of an idustrial unit being separated from the main
group. But this result follows only when the majority of a group
that has conventionally bargained as a craft are. in favor of the
separation and the alternative is to deny a craft union of many years'
standing, such as the Printing Pressmen's Union in the instant case,
the right to organize in the particular plant at all. -
The argument is based largely upon experience under the Railway
Labor Act. The problems arising under the Railway Labor Act, how-
ever, are far different from those with which the Board is confronted.
The. Railway Labor Act applies to a single industry in which col-
lective bargaining through collective agreements is well established
and relatively stable. Under such conditions it is feasible to rely
more on what the parties have over a number of years worked out in
the form of collective agreements. In industry as a whole, over
which this Board has 'jurisdiction,. we are faced with no such rela-
tively simple situation. Many industries are unorganized, others are
just being organized, and others have been organized for a compara-
tively. short period of time. There is no uniformity of conditions and
frequently no substantial history of collective bargaining.
It is stated that the National Mediation Board has in railway cases
refused to permit stationary engineers to separate themselves from
firemen and oilers, dining-car cooks from waiters, freight handlers
from other station employees, and yard conductors from yard brake-
men. It was thus, I should suppose, determining bargaining units
which were in accord with the conventional methods of organization
of railway employees by standard labor organizations. In the instant
case the Printing Pressmen's Union asks to be permitted to do what
it has done with thousands of other employers; to be permitted to
bargain for the pressmen. I do not see why it should follow that
11 Matter o f Novelty Stearn, Boiler Works and Local 101, Welders, Burners, Apprentices,
A. F. of L., 7 N. L. R. B. 969; Matter of Rembrandt Lamp Corporation and Metal Polishers,
Buffers, Platers and Helpers International Union, Local No. 6,-Chicago, Illinois, Affiliated
with The American Federation of Labor, 13 N. L. R. B. 945; Matter of Climax Machin-
ery and Metal Polishers, Buffers, Platers and Helpers, Local Union No. 171, affiliated with
the A. F. of L., 14 N. L. R. B. 252.
MILTON BRADLEY COMPANY 951
because the National Mediation Board does not permit the formation
of new and unusual units, this Board must not tolerate the formation
of old and conventional units, units just like thousands of others
which the world outside the Board knows familiarly.
Reference is made to the decision of the United States Court of
Appeals for the District of Columbia in Brotherhood of Railway
Trainmen v. National Mediation Board 12 The meaning of Judge
Groner's opinion in that case is not entirely clear. Although at one
point he states that Congress intended to adopt the designation of
class or craft "as determined by the then current working" agree-
ment," subsequently he adds that "by reference to the terms of the
working agreement which the employees have made, is to be found
at least some evidence of who are members of the craft or class
covered by that agreement." Furthermore, the expression of opinion
of Judge Groner is purely dictum. The actual holding in the case
was that the National Mediation Board had arbitrarily refused to
grant the parties. to the dispute a ."real hearing" and the case was
remanded to the Board for such a hearing.
Finally, I see nothing whatever in the National Labor Relations
Act which indicates an intention of Congress that the Board, in
determining the appropriate unit, is governed solely by the terms of
a previous exclusive bargaining contract. It would have been com-
paratively easy for Congress to have expressly included in Section
9 (b) a provision to the effect that the Board should be bound by
previous agreements even though those agreements had expired.
Congress did not do this, however, but left the matter in the dis-
cretion of the Board. Nor is. there anything in the legislative
history of the Act which indicates an intention by Congress that the
Board be bound by the terms of previous collective agreements. On
the contrary, the report of the Senate Committee on Education and
Labor, submitted when the bill was reported out to the Senate,
states as follows :
Section 9 (b) empowers the National Labor Relations Board
to decide whether the unit appropriate for the purposes of col-
lective bargaining shall be the employer unit, craft unit, plant
unit, or other unit. Obviously, there can be no choice of repre-
sentatives and no bargaining unless units for such purposes are
first determined. And employees themselves cannot choose these
units, because the units must be determined before it can be
known what employees are eligible to participate in a choice of
any kind.
-88 F. (2d) 757.
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The dogma "Once an industrial unit, always an industrial unit" 18
is so important and involves so great an assumption as to the stabil-
ity of human affairs in a field which is far from stable, that it ought
to be promulgated by Congress if it is promulgated at all. But, as I
have said, I see no evidence that Congress intended any such dogma.
For the foregoing reasons I cannot agree that the Board is re-
quired to find that the appropriate bargaining unit is fixed by a
previous exclusive bargaining contract, or that as a matter of policy
it should do so in all cases.
n The correlative statement is, as we seem to agree , "Once a craft unit , change it if you
will at the next bargaining period."