Nash-Kelvinator Corp.

National Labor Relations Board - Board Decisions

Oct 22, 1954

110 N.L.R.B. 447 (N.L.R.B. 1954)

NASH-KELVINATOR CORPORATION 447
at the hearing further alleged discrimination with request to certain employees, and
various acts of interference with , and restraint of, employees.
On May 5, 1953, hearing on the complaint was opened , and thereafter continued
on various dates by the Trial Examiner, duly designated to conduct the proceeding.
On July 17, 1953, counsel for the General Counsel requested the Board 's permis-
sion to appeal from certain rulings made in the course of hearing by the Trial
Examiner . To allow counsel time to prepare arguments and briefs on the subject
of the interim appeal , the hearing was recessed , to be resumed upon order of the
Trial Examiner , upon the motion of any party.
On January 14, 1954, the Board held in Compliance Status of Furniture Workers,
Upholsterers and Woodworkers Union, Local 576, Independent, 107 NLRB 872,
Administrative Determination of Compliance Status, that the Charging Union herein
"was not in compliance with Section 9 (h) of the Act during the period when the
incumbents of [certain ] positions did not have on file the affidavits therein pre-
scribed ." The Board also found that "all incumbents of these positions failed to
file non-Communistic affidavits until the latter part of 1953."
Consequently , on March 16 , 1953 , the date of issuance of the complaint herein,
the Charging Union was not in compliance with Section 9 (h) of the Act, and
the issuance of the said complaint was invalid under Section 9 (h) of the Act.
On May 13, 1954, the General Counsel addressed a formal request to the Board,
asking that he be permitted to withdraw the aforementioned request for permission
to appeal from Trial Examiner 's ruling and argument in support thereof, and that
the proceeding be remanded to the Trial Examiner for the purpose of enabling
the Trial Examiner to rule on a motion of the General Counsel to dismiss the
complaint herein because of the noncompliance of the Charging Union, as set
forth above. On the same date, the General Counsel filed with the undersigned
the above-mentioned motion to dismiss the complaint.
On May 24, 1954, the Board by order permitted the General Counsel to withdraw
the "Request for Permission to Appeal from Trial Examiner 's Rulings and Argument
in Support Thereof."
Wherefore , upon the entire record herein , the Board 's administrative determina-
tion of compliance status of the above-named Union , dated January 14, 1954, and
upon motion of the General Counsel, no party opposing,
IT IS ORDERED that the complaint herein, issued on March 16 , 1953 , as finally
amended , be, and it hereby is, dismissed in its entirety.
NASH-KELVINATOR CORPORATION , BODY PLANT #6 and INTERNATIONAL
BROTHERHOOD OF FIREMEN AND OILERS , LOCAL 125, AFL, PETI-
TIONER . Case No. 13-RC-3833. October 02, 1954
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before William F. Trent,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.
3. No question affecting commerce exists concerning the represen-
tation of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act.
The Petitioner seeks to sever a powerhouse unit from the produc-
tion and maintenance unit currently represented by the Intervenor,
110 NLRB No. 62.
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Union, United Automobile, Aircraft and Agricul-
tural Implement Workers of America, Local No. 75, CIO. The Inter-
venor claims as a bar to this proceeding its current wage agreement
with the Employer. The Petitioner contends that a bargaining
agreement which pertains only to wages is too limited and incom-
plete a contract to constitute a bar. The Employer takes no position
concerning this issue.
Intervenor was recognized by the Employer at the conclusion of
a strike in 1934 and has bargained for the powerhouse employees as
a part of the production and maintenance unit since 1941, the year in
which Intervenor won a consent election in the powerhouse. The
Employer and Intervenor have never entered into any basic written
contract covering such things, among others, as seniority, union se-
curity, transfer, hours of employment, and working standards. How-
ever, negotiations for an agreement covering these matters were begun
in January 1953 and were still in progress at the time of the hearing
in this proceeding.
The contract upon which the Intervenor relies as a bar to this pro-
ceeding is a "Supplemental Agreement" which was executed in June
1953 and which terminates in May 1955. This agreement provides
for (1) shifting a part of the cost-of-living allowance in effect at the
time of its execution to existing base hourly wage rates, (2) annual
improvement adjustments to be made in June of 1953 and 1954, (3)
quarterly cost-of-living wage adjustments, (4) further increases in
the base hourly wage rates of certain skilled employees and ap-
prentices, and (5) the continuation in effect of a 1950 "Pension
Agreement."
The Employer and Intervenor have also entered into "understand-
ings" at their regular and special meetings and other written agree-
ments concerning vacations, insurance, pensions, overtime and holi-
day pay, a policy regarding 7-day operations, and premium pay for
second and third shifts. However, these agreements and understand-
ings and the "Pension Agreement" mentioned in the "Supplemental
Agreement" were not introduced in evidence. The Intervenor relies
upon only the wage agreement as a bar to this proceeding.
In determining whether a collective-bargaining agreement should
be held a bar to a representation proceeding the Board must deter-
mine, among other things, whether it imparts to the relationship of
the parties a degree of stability which outweighs the right of the em-
ployees to a redetermination of bargaining representatives at that
particular time.' Not every aspect of employment need be fixed by
such a contract-even the most extensive contract cannot guarantee
the tranquil association of an employer and a bargaining representa-
i Bethlehem Steel Company, 95 NLRB 1508, at 1510
NASH-KELVINATOR CORPORATION 449
tive. But the contract must contain terms and conditions of employ-
ment of sufficient substance to reasonably justify the conclusion that
in the light of the surrounding circumstances the contract is likely to
preserve, undisturbed by serious differences and disruptions, the work-
ing relationship of the parties to it.
We believe that the Intervenor's wage agreement embodies sufficient
substantive terms and conditions of employment to be found a bar
in the circumstances of this case. The execution of this agreement
does not appear to have been in anticipation of a rival representation
claim. Neither is it the result of the beginning efforts of a newly
recognized bargaining representative or the only settled area.
in a relationship otherwis8 marred by serious and disruptive disputes.
The Employer and Intervenor have long maintained a harmonious
association, the success of which is evidenced by the many agreements
and understandings reached through their regular and frequent nego-
tiations. The agreement here submitted as a bar establishes not only
a comprehensive schedule of wages but incorporates a dynamic sta-
bility in this central issue in collective bargaining by providing for
improvement and cost-of-living adjustments to be made during its
term. Under these circumstances we find that the "Supplemental
Agreement" between the Employer and the Intervenor is a bar to an
election at the present time. Accordingly, we shall dismiss the peti-
tion filed herein.
[The Board dismissed the petition.]
MEMBER DODGERS, dissenting :
I cannot agree with the finding that the "Supplemental Agreement"
constitutes a bar to an election.
The Board has consistently held that a mere wage agreement does
not achieve such stability in labor relations that it should operate as
a bar .2 In expressing the basic principles which underlie its contract-
bar policy, the Board has invariably stated that when the existence
of a contract does not serve to stabilize the relationship between the
parties, either because of the nature of the contract or because of
other factors, the Board will give immediate effect to the employees'
freedom to choose their representatives. Indeed, in the General
Electric case 9 issued as recently as June 10 this year, the Board cited
as authority the Laclede 4 case in illustrating the principle that a con-
tract which fails to stabilize the bargaining relationship of the parties
2 The Laclede Gas Light Co., 76 NLRB 199; Federal Shipbutldvng and Dry Dock
Company, 76 NLRB 413; Associated Transport, Inc., 93 NLRB 1564; Groveton Papers
Company, 96 NLRB 1369; A. 0. Smith Corporation , 78 NLRB 1050; Swift and Company,
82 NLRB 994 ; see also Thirteenth Annual Report, p. 29; Sixteenth Annual Report, p. 64;
Seventeenth Annual Report, p. 38.
3 General Electric Company, 108 NLRB 1290
4 Supra
338207-55-vol. 110-30
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"because of the nature of the contract" cannot serve as a bar.' It
is significant that in the Laclede case the parties-to quote from that
decision-"agreed to wage increases and incorporated a new schedule
of wages into a supplemental agreement," and the Board held that
such wage agreement was "not a full collective bargaining agreement
containing the usual substantive provisions concerning conditions of
employment," and accordingly held that "such a partial agreement
does not achieve such stability in labor -relations that it should dper-
ate as a bar to this proceeding."
It seems clear that the "Supplemental Agreement" in the present
case is no different in any material respect from the many other mere
wage agreements which the Board has in the past declined to regard
as a bar.
I am not persuaded by the majority's attempts at justification of a
result which flies in the face of a sound policy which the Board has
so recently cited with approval. Neither the circumstances surround-
ing the execution of the "Supplemental Agreement" nor the character
of the association between the parties are, in my opinion, relevant. I
have stated before, and shall, if need be, repeat again, that there should
be no departure from the exercise of objective standards in the admin-
istration of the policies of the Act. It is far better to require adher-
ence to a rule rather than to change the rule from case to case in order
to accommodate parties, who, despite the continued existence of the
requirement for many years, nonetheless choose not to follow it. More
specifically, it is much sounder administration to require that a col-
lective-bargaining agreement contain adequate substantive provisions
concerning terms and conditions of employment, thereby stabilizing
the collective-bargaining relationship-a requirement that is by no
means onerous or unreasonable-than to abandon the rule and by so
doing opening up a veritable Pandora's box of unnecessary problems.
I know of no better way of encouraging stability and discouraging
unnecessary litigation than by adhering to the standard which the
majority would now destroy.
In calling attention to the abandonment of this vital contract-bar
policy, I feel compelled to add that in spite of the clear conflict between
the majority holding in this case and the policy now in effect, the
majority fails to make any reference whatever to the Laclede decision
or to any of the other decisions, both before and after, or to the explicit
expressions by the Board in its annual reports which state this policy
in unequivocal terms, i. e., that a mere wage agreement may not serve
as a bar.
I feel that is the duty of the Board to keep its decisional process
free of doubt and ambiguity. To deviate from this policy, particularly
6 The concurring opinions in the General Electti-c case did not question the validity of
this statement.
DICK BROTHERS , INC. 451
in the face of its recent actions, is to leave the parties that come before
the Board in that state of confusion which the absence of an established
rule inevitably creates. To depart from established practice without
so much as acknowledging that fact serves only to add bewilderment
to a dilemma-a result good conscience and sound administration
should, at all costs, seek to avoid.
Under the circumstances, and for the reasons above stated, I would
hold the so-called "Supplemental Agreement" no bar, and would
entertain the petition on the merits.
MEMBER MURDOCK took no part in the consideration of the above
Decision and Order.
DICK BROTHERS, INC. and STEEL WORKERS FEDERATION, PETITIONER.
Case No. 4-RC-2430. October 22,1954
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before William Naimark, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
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 labor organizations involved claim to represent employees
of the Employer.
3. The Petitioner, Steel Workers Federation, filed its petition herein
on June 23, 1954, seeking to represent a unit composed of all produc-
tion and maintenance employees at the Employer's Reading, Penn-
sylvania, plant, excluding all office clerical employees, professional
employees, guards, and supervisors as defined in the Act. The Em-
ployer and the Intervenor, United Steelworkers of America, CIO,
contend, in substance, that this proceeding is barred by a settlement
agreement, settling alleged violations of Section 8 (a) (5) and (1)
of the Act, which was entered into by the Employer and the Inter-
venor with the approval of the Regional Director, and by a certain
bargaining contract executed by them approximately 2 days thereafter
as a result of the bargaining prescribed in the settlement agreement.
The facts of the case are briefly as follows : On January 7, 1953, the
Employer and the Intervenor entered into a collective-bargaining
agreement which was to remain in effect until September 1, 1954, and
thereafter unless terminated on 60 days' notice. This agreement also
provided for a midterm reopening to negotiate wage rates. On June
110 NLRB No. 81.