O & T Warehousing Co.

National Labor Relations Board - Board Decisions

Jan 29, 1979

240 N.L.R.B. 386 (N.L.R.B. 1979)

386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
O & T Warehousing Co., a Division of Bowline Cor-
poration and AFL-CIO and/or its Appropriate Af-
filiate, Petitioner. Case 11 -RC 4538
January 29, 1979
DECISION AND DIRECTION OF ELECTION
By MEMBERS PNEI.I.O MUtRPHY, AND TRUFSDALE
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held on June 12, 1978, before Hearing
Officer Ronald L. Yost. Following the close of the
hearing, the Regional Director for Region 11 trans-
ferred this proceeding to the Board for decision.
Thereafter, briefs were filed by the Employer and
Petitioner.
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 rul-
ings made at the hearing and finds that they are free
from prejudical 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. At the hearing in this case, the Employer moved
for dismissal of the petition on the ground that the
Petitioner, AFL CIO and/or its appropriate affiliate,
is not a labor organization as defined in Section 2(5)
of the National Labor Relations Act, as amended.
The motion was referred to the Board for ruling.
In its brief to the Board, the Employer asserts that
the petition bearing the name "AFL CIO and/or its
Appropriate Affiliate" designates neither the AFL-
CIO nor a specific affiliate as the labor organization
seeking representative status. Thus, the Employer
contends that the employees do not know the identi-
ty of the prospective bargaining agent they are asked
to vote for and, therefore, cannot select a representa-
tive of their choice. To buttress its contention, the
Employer notes that, at the hearing, Petitioner ad-
mitted that it was uncertain what organization would
appear on the ballot or, assuming Petitioner as cur-
rently designated won the election, whether an af-
filiated organization would be designated as exclu-
sive bargaining representative.
IIn response to the question how the Petitioner intends to appear on the
ballot, the Petitioner's witness provided the following testimony:
I am not sure at this point. It nma' be that we name an affiliate before
the election ... r we nnay choose to represent them directly, or
240 NLRB No. 46
While Petitioner concedes the possibility that it
may, upon certification, appoint an affiliated labor
organization to assume the role of exclusive bargain-
ing representative, it nevertheless argues that the pe-
tition should not be dismissed inasmuch as the Board
has held that the AFL-CIO is a labor organization
within the meaning of Section 2(5) of the Act and
that its designation may support a valid showing of
interest.2
It is apparent from its brief herein and the above
argument that Petitioner misperceives the issue in
this case. Contrary to Petitioner's contention, the is-
sue is not whether the AFL CIO is a labor organiza-
tion: rather, the issue is whether the designation
"AFL-CIO and/or its Appropriate Affiliate" suffi-
ciently identifies a labor organization to accord em-
ployees their Section 7 rights of selecting bargaining
"representatives of their own choosing." We find that
the designation fails to accord those rights and is,
therefore, improper.
As noted, employees, pursuant to Section 7, are
entitled to select the labor organization or organiza-
tions they desire to represent them for the purpose of
bargaining collectively with their employer. That
statutory right can only be meaningfully exercised if
the employees are presented on the election ballot
with the choice of a clearly identified labor organiza-
tion. In the instant case, it is far from clear what
labor organization or organizations are seeking rep-
resentative status inasmuch as Petitioner's designa-
tion encompasses three possibilities: the AFL-CIO,
the AFL-CIO and an affiliate, or an affiliate of the
AFL CIO.
While we would, of course, certify the AFL-CIO
to represent the Employer's employees,3 we perceive
no basis for certifying "AFL CIO and/or its Appro-
priate Affiliate" inasmuch as the affiliate is, as yet,
unknown, and the prospective bargaining representa-
tives are listed in the alternative as well as jointly.4
Thus, under the current designation, if the employees
select the Petitioner, they would, in effect, delegate to
the AFL CIO the authority to choose, in its discre-
we may like to designate an affiliate aIfter the election is over
sith ....
See. eg.. General Shoe (rporation. I 13 NL R B 905 1955).
See In. 2. supra. It is, of course, beyond question that the AFL CIO and
its affiliates are labor organizations within the meaning of Sec. 2(5) of the
Act inasmuch as the) exist. in whole ior in part. for the purpose "of dealing
with employees concerning grievances, labor disputes, wages. rates of pay.
hours of employment. or conditions of work."
In some previous decision we have held that a parent federation such as
the A-L or the ('10 ma) file a petition n behalf of an after-designated
labor organization. See. e.g. Sherold rv stols. Inc. 104 NLRB 1072 (1953).
loweer. for certification purposes. the designation must be made prior to
the balloting and must appear on the ballot. hus in M. A. Norden Comra-
to. Inc.. 159 NLRB 1730 (196). the Board, in an amendment of certifica-
tion case. refused to permit the AFL ('10 to substitute an affiliated labor
organization when only the AFL ('10 appeared on the ballot and was certi-
fied
0 & T WAREHOUSING CO. 387
tion, which entity would become the exclusive bar-
gaining representative. Such a delegation would be.
in our judgment, contrary to the concerns inherent in
Sections 7 and 9(a) of the Act inasmuch as the ulti-
mate right to select the actual bargaining representa-
tive would rest not with the employees, but with the
AFL-CIO.
Accordingly, for the reasons set forth above, we
find that the Petitioner, "AFL-CIO and/or its Ap-
propriate Affiliate," cannot appear on the election
ballot as currently designated. We will not, however.
order dismissal of the petition herein.
It is well-established Board law that the showing of
interest is an administrative matter not subject to liti-
gation.5 In the instant case, we are satisfied that
Petitioner's showing is adequate to support the peti-
tion filed herein. As we stated in General Dynamics
Corporation, 213 NLRB 851, 854 (1974):
[T]he showing of interest evinces an underlying
substantial employee intent to acquire a bar-
gaining representative or, at the ery least, an
employee desire of being placed in a position to
cast a ballot. The mere showing of interest is
primafacie evidence thereof. We cannot assume.
therefore, that these employee intents and de-
sires have been blunted b the wording on the
[authorization] cards.
Here, the employees, by signing authorization
cards designating "AFL-CIO and/or its Appropriate
Affiliate," have demonstrated an interest in represen-
tation by a labor organization within the designated
class sufficient to justify acceptance of the showing
5 O D. Jennings d Companr. 68 N.RB 16 1946).
of interest and direction of election. Accordingly. we
will allow the petition to stand. However, we shall
place onl the AFL- CIO on the ballot at this time. If
the AFI CIO wishes to designate the name of the
labor organization or organizations it desires to ap-
pear on the ballot with it or in its place. it may do so
within 10 days from the date of this direction.i The
labor organization or organizations so designated
must be among those described by the designation
"A L C('10 and or its Appropriate Affiliate" and
must satisf, the requirements of Section 2(5) of the
Act.
3. We, therefore, find that a question affecting
commerce exists concerning the representation of
certain employees of the Employer within the mean-
ing of Section 9(c)(1) and Section 2(6) and 2(7) of the
Act.
4. The parties stipulated, and we find, that the fol-
lowing employees constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All production and maintenance emplo\ees, in-
cluding warehousemen, order pullers. saw oper-
ators, and crane operators at the Employer's
Charlotte, North Carolina, facility; excluding
officer clericals, guards, professional and super-
visory employees as defined in the Act.
[Direction of Elections and Exelsior footnote omit-
ted from publication.]
1e .I o or nlmore lahor orgnlationls ;ire permitted to ;lct o.iitl s . h, ailrziill-
ing reprseintali se for a single group of etmplosee. See S 1) Ii airrdlr <,'
pat, 1SI) NI RB 288 (1964.
If the Al I ('10 wihe, not to ippealr on the hallot hi tself, i ia?
silhdraiu the petition wirhout preludice. pros.ided it dlles so Within 10 da!s
fromn the date sof this Decision
0 & T WAREHOUSING CO