The Axton-Fisher Tobacco Co.

National Labor Relations Board - Board Decisions

Apr 23, 1936

1 N.L.R.B. 604 (N.L.R.B. 1936)

In the Matter of THE AxTON-FISHER TOBACCO COMPANY and INTER-
NATIONAL ASSOCIATION OF MACHINISTS, LOCAL No. 681, and TOBACCO
WORKERS' INTERNATIONAL UNION, LOCAL NO. 16
Case No. R,5
In the Matter of BROWN AND WILLIAMSON TOBACCO CORPORATION and
INTERNATIONAL ASSOCIATION OF MACHINISTS, LOCAL No. 681, and
TOBACCO WORKERS' INTERNATIONAL UNION, LOCAL No. 185
Case No. R-6
Decided April 33, 1936
Tobacco Products Industry-Labor Organization: Board will not intervene
in internal affairs of-American Federation of Labor-Jurisdictional Dispute-
Unit Appropriate for Collective Bargaining: Board will not determine where
only, question involved is one of internal affairs of labor organization-Petition
for Investigation and Certification of Representatives: denied.
Mr. Ralph A. Lind for the Board.
Mr. Ernest Woodward , of Louisville , Ky.; for the Axton -Fisher
Tobacco Co.
Mr. H. M. Robertson , of Louisville , Ky., for Brown and Williamson
Tobacco Corp.
Mr. 0. R . Strackbein , of Washington , D. C., and Mr. E. Lewis
Evans, of Louisville , Ky., for Tobacco Workers' International Union,
Locals No. 16 and No. 185.
Mr. Stanley S. Surrey, of counsel to the Board.
DECISION
STATEMENT OF CASE
A stipulation was entered into between the above-named parties
in Case No. R-5 whereby all agreed that a question affecting com-
merce within the meaning of Section 9 (c) of the National Labor
Relations Act had arisen concerning the representation of the ma-
chinists employed by the Axton-Fisher Tobacco Company. All of
the parties further consented to the jurisdiction of the National La-
bor Relations Board to conduct a hearing for the purpose of deter-
mining the appropriate bargaining unit under the circumstances of
the case and of certifying the representatives of said machinists pur-
604
DECISIONS AND ORDERS 605
suant to Section 9 (a), (b) and (c) of said Act. A similar stipula-
tion was entered into in Case No. R-6, which involves the machinists
employed by the Brown and Williamson Tobacco Corporation.
Pursuant to these stipulations, the National Labor Relations Board
on January 13, 1936 ordered that an investigation be conducted and
an appropriate hearing be held in each case in accordance with Sec-
tion 9 (c) of the Act and Article III, Section 11 of National Labor
Relations Board Rules and Regulations-Series 1. In consequence
of such orders notices of hearings to be held on February 3 and 4,
1936 were duly served upon the respective parties. Said hearings
were thereafter postponed until February 10 and 11, 1936. On said
dates, hearings were held at Louisville, Kentucky by Edwin S.
Smith, the Trial Examiner duly designated by the Board, and testi-
mony was taken. Full opportunity to be heard, to examine and to
cross-examine witnesses and to introduce evidence bearing upon the
issues was afforded to all parties.
While the two cases have not been consolidated, in view of the
identity of the problems involved it is appropriate that they be con-
sidered together in one decision. Upon the respective records in the
cases, -the stenographic transcript of the hearings, and all the evi-
dence, including oral testimony, documents and other evidence offered
and received at the hearings, the Board makes the following respective
findings of fact :
FINDINGS OF FACT
A. CASE NO. R-5
The Axton-Fisher Tobacco Company, hereinafter referred to as the
Axton-Fisher Company, is a corporation engaged in the manufacture
of cigarettes and other tobacco products at a plant in Louisville,
Kentucky. As of January 28, 1936, 706 workers were employed at
that plant. The preponderant majority of these workers, 640 in
number, consisted of groups of employees performing various tasks
involved-in the manufacture of tobacco products and known as "to-
bacco workers." The remainder consisted of skilled and semi-skilled
craftsmen-machinists, carpenters, electricians, plumbers, painters,
teamsters , tinners, cooks and waitresses and, firemen. Classified by the
Axton-Fisher Company among the "tobacco workers" are 16 machine
fixers, 8 oilers and greasers, 2 knife grinders and 130 tobacco machine
operators. The machine fixers are employees who, with only a few
exceptions, have graduated from the ranks of the machine operators
and whose duties consist of supervising the performance of the ma-
chines-to ensure their continuous and effective operation. They are
qualified to make running repairs on these machines, to remove broken
606 NATIONAL LABOR RELATIONS BOARD
parts and to replace them with new parts. However, they do not
work in the machine shop and are not qualified to repair broken parts
that are removed. Their training does not qualify them to be ma-
chinists and they do not receive promotion in that direction.
The Tobacco Workers' International Union, Local No. 16, as its
name implies is a local of a labor organization that is organized as
an international union upon a semi-industrial basis, admitting tobacco
workers to membership. Local No. 16, hereinafter referred to as the
Tobacco Workers' Union, is affiliated through the parent body with
the American Federation of Labor.
The International Association of Machinists, Local No. 681, here-
inafter referred to as the Machinists Union, is a labor organization.
It is a local of the international union of that name affiliated with
the American Federation of Labor. The Union is organized on a
craft basis and admits machinists from all industries and trades.
Out of the 706 employees, 650 are members of the Tobacco Workers'
Union. The Axton-Fisher Company has operated on a closed shop
basis since 1899 and requires each employee to have a membership
card in some recognized union. Prior to 1932 all of the employees
were members of the Tobacco Workers' Union and the Axton-Fisher
Company dealt with that Union, agreements being regularly con-
cluded between the two parties. In 1932 the Tobacco Workers'
Union recognized the jurisdiction of the various American Federa-
tion of Labor craft unions and many of the craft employees left the
Tobacco Workers' Union to join their respective craft unions. In
1933 the machinists took similar action, leaving the Tobacco Workers'
Union and joining the Machinists Union. The Axton-Fisher Com-
pany continued to bargain collectively with the Tobacco Workers'
Union and to enter into written agreements with it, but in addition
entered into verbal agreements with the representatives of those craft
unions that desired such agreements. However, the only written wage
contract entered into by the Axton-Fisher Company was with the
Tobacco Workers' Union. Since 1933 the Machinists Union has at-
tempted to obtain a separate written agreement with the Axton-
Fisher Company applicable to the machinists and the machine fixers.
The Axton-Fisher Company has refused to enter into such a con-
tract for reasons that will be stated later. In December, 1935, the
Axton-Fisher Company again entered into a written contract with
the Tobacco Workers' Union to run for two years. The wages of
the machine fixers are fixed in this contract.
The Tobacco Workers' Union, as stated above, recognized the
jurisdiction of the Machinists Union over the machinists employed
by the Axton-Fisher Company. However, both Unions claim ex-
clusive jurisdiction over the "machine fixers" and their conflicting
DECISIONS AND ORDERS 607
claims constitute one of the issues in this case. At present, some of
the machine fixers belong to the Tobacco Workers' Union, some to
the Machinists Union and some to both Unions.' The constitution
of each Union supports the respective claim.
Briefly, and solely to point the problem, the contentions of each
Union regarding the machine fixers are as follows : The Machinists
Union states that the machine fixers perform duties that are related
to the work of machinists-the adjustment and repair of machines.
The Tobacco Workers' Union states: (1) That as machine fixers
graduate from the ranks of the tobacco machine operators their prior
membership will have been in the Tobacco Workers' Union, so that if
the claim of the Machinists Union were upheld these fixers would
upon their promotion from operators be compelled to resign their
membership in the former Union, forego sick benefits and seniority
accrued during such membership and join a new union as new mem-
bers. If a tobacco machine fixer is laid off or discharged by one
company, he can gain somewhat equivalent employment in the trade
elsewhere only as a fixer or an operator. Accordingly, accrued
seniority as a tobacco worker is important to him; (2) The work
of the machine fixers is not of a skilled type and does not qualify
them to be machinists so that they cannot ever hope to gain such
skilled employment. Consequently, there is no reason for them to
join a union which represents a craft to which they can never attain;
(3) With the exception of one other tobacco plant, union machine
fixers elsewhere belong to the Tobacco Workers' Union; (4) In other
industries, such as the textile industry, machine fixers belong to the
union having jurisdiction over the basic occupations rather than to
the Machinists Union. The claim of the Tobacco Workers' Union
is supported by the Axton-Fisher Company. There has been no
ruling on the question by the American Federation of Labor.
The apparent issue between the Machinists Union and the Axton-
Fisher Company is whether the machinists (whether the term in-
cludes only the machinists proper or both the machinists proper and
the machine fixers) constitute an appropriate unit for collective bar-
gaining with the Axton-Fisher Company. The Machinists Union
contends that they do on the basis of both labor history and present
occupational differences. The Axton-Fisher Company asserts that
the entire plant should be declared the unit here appropriate for
collective bargaining in view of the preponderant membership in
the Tobacco Workers' Union-over 90%-and the history of collec-
tive bargaining in the plant. However, in November, 1935, the
1 In addition to the machine fixers, the two knife grinders, now members of the Tobacco
Workers' Union , are claimed by both Unions . Since the problems are essentially the
same, reference hereafter will be made only to the machine fixers.
608 NATIONAL LABOR RELATIONS BOARD
Axton-Fisher Company offered to enter into a written agreement
with the Machinists Union provided that the agreement did not
cover the fixers, but the Machinists Union refused. Moreover, it does
deal with a shop committee representing the machinists. The To-
bacco Workers' Union does not dispute either the jurisdiction of the
Machinists Union over the machinists proper or its claim to bargain
collectively with the Axton-Fisher Company for that group.
B. CASE NO. R-6
The Brown and Williamson Tobacco Corporation, hereinafter re-
ferred to as the Brown and Williamson Corporation, is a corporation
engaged in the manufacture of cigarettes and other tobacco products
at various plants. The plant located at Louisville, Kentucky, is the
one involved in this case. At the time of the hearing, 2,684 em-
ployees were employed at this plant. Of these 2,451 were employees
of the type described above as "tobacco workers" and belonged to
the Tobacco Workers' Union. The remainder of the employees con-
sisted of craftsmen of various types-machinists, carpenters, painters,
pressmen, bookbinders, electricians, etc.
The Louisville plant was organized in the fall of 1933 by the
Tobacco Workers' Union. However, as that body did not claim
jurisdiction over the crafts, it encouraged the various craft unions
to enroll the respective craftsmen. A contract was executed between
the Tobacco Workers' Union and the Brown and Williamson Cor-
poration in December, 1933. In December, 1935 a new contract was
negotiated between the same parties to run for a two-year period.
The Brown and Williamson Corporation is operated on a closed shop
basis; i. e., it does not employ any person not a member of a local
of the Tobacco Workers' International Union unless such person is
a member of some other union affiliated with the American Federa-
tion of Labor.
The machinists proper employed by the Brown and Williamson
Corporation are members of Local No. 681 of the International Asso-
ciation of Machinists, hereinafter referred to as the Machinists Union.
In addition practically all of the machine fixers (including the knife
grinders) are also members of that Union, since Local No. 185 of the
Tobacco Workers' International Union, the Local at the Louisville
plant and hereinafter referred to as the Tobacco Workers' Union, at
the outset conceded the claim of the Machinists Union to jurisdiction
over that group. However, the parent body, the Tobacco Workers'
International Union, never officially relinquished its claim to jurisdic-
tion over the machine fixers and it asserted that claim for its local
at the hearing. The conflicting claims of the Tobacco Workers'
Union and the Machinists Union to jurisdiction over these machine
DECISIONS AND ORDERS` 609
fixers constitutes the issue between the two Unions. The contentions
of each are the same as outlined under Case No. R-5.
Likewise, as in the other case, the apparent issue between the Brown
and Williamson Corporation and the Machinists Union is whether
the machinists constitute an appropriate unit for collective bargain-
ing with the Corporation. The Machinists Union proposed a con-
tract covering both the machinists and the machine fixers, but the
Brown and Williamson Corporation did not accept it. The jurisdic-
tion of the Machinists Union over the machinists proper and its claim
to represent them are not contested by the Tobacco Workers' Union.
CONCLUSION
The main issue in these cases is the jurisdictional contest between
the International Association of Machinists and the Tobacco Workers'
International Union, both represented by local unions in each plant.
Each Union claims that it has "jurisdiction" over the machine fixers,
the claims being based upon the respective charters issued by the
American Federation of Labor and the pattern of labor organization
in this country.
A brief description of certain aspects of the structure of the Ameri-
can Federation of Labor will make clear the nature of such a contest.2
That organization is a federation of national and international labor
unions. The member unions possess complete autonomy as regards
their internal affairs. Hcwever, a significant portion of their rela-
tionships to one another are regulated by the Federation. These
unions represent organizations of various types, roughly divided as
follows : organizations of craftsmen of identical skill and training
working in different trades and industries-the pure craft unions;
organizations of workers in interrelated crafts and processes or in
closely allied trades that are competitive in character (e. g., building,
metal and machine trades)-the compound craft unions; organiza-
tions of workers engaged in the basic occupations of an entire indus-
try or a major branch thereof, but in which craft lines are maintained
among the various groups of members-the amalgamated or semi-
industrial unions; and, finally, organizations of workers on the basis
of product made or materials used, regardless of craft or skill-the
pure industrial unions.3 Since each organization claims that it alone
represents the group of workers from which its members are
2 In general , see Lorwin , The American Federation of Labor ( 1933 ) ; Ware, Labor in
Modern Industrial Society ( 1935) Ch. XII ; Hoxie, Trade Unionism in the United States
(1923 ) Ch. V ; Bureau of Labor Statistics , Handbook of American Trade-Unions (Novem-
ber, 1929).
' Lorwin, op . cit. supra, at 305-6. For a somewhat different terminology applied, to
the same general classifications , see Twentieth Century Fund , Labor and the Government
(1935 ) 33-38.
6 10 NATIONAL LABOR RELATIONS BOARD
drawn, the likelihood of jurisdictional disputes is obvious and their
importance undeniable.
The desire to maintain stability of relationships and to adjudicate
peacefully those jurisdictional disputes that do arise is one of the fac-
tors that holds the member unions together in the Federation.4 That
body issues a charter to each of the unions affiliated with it in which
the "jurisdiction" of that union is defined. The Constitution of the
Federation provides in Section 11 of Article IX that :
"No charter shall be granted by the American Federation of
Labor to any National, International, Trade, or Federal Labor
Union without a positive and clear definition of the trade juris-
diction claimed by the applicant, and the charter shall not be
granted if the jurisdiction claimed is a trespass on the jurisdic-
tion of existing affiliated unions, without the written consent
of such unions; no affiliated International, National, or Local
Union shall be permitted to change its title or name, if any tres-
pass is made thereby on the jurisdiction of an affiliated organiza-
tion, without having first obtained the consent and approval of a
Convention of the American Federation of Labor; and it is fur-
ther provided, that should any of the members of such National,
International, Trade or Federal Labor Union work at any other
vocation, trade, or profession, they shall join the union of such
vocation, trade, or profession, provided such are organized and
affiliated with the American Federation of Labor."
Such charters are sufficient to regularize to a large extent the basic
jurisdictional questions. However, boundary line questions continue
to arise as a result of ambiguous or overlapping charters and changes
in industrial techniques and trends. Since the charters are issued
by it, the Federation possesses authority to decide such questions,
acting through its annual conventions or its Executive Council in the
periods between such conventions.
Jurisdictional disputes are thus no new phenomenon and many
have been presented to the Federation for settlement. Between 1917
and 1925 the Executive Council and the Conventions of the Federa-
tion handled about 150 jurisdictional cases. Fifty-two more were con-
sidered between 1925 and 1931. Many were disputes of long standing.5
Some of these jurisdictional disputes are settled by inter-union agree-
ments, some by amalgamations of the contesting parties;6 some by
the creation of "departments" within the Federation, such as the
4 Lorwin, op. cit supra, at 324; Twentieth Century Fund, op cit. supra, at 32.
Lorwin, op. cit. supra, at 340, 342.
6 Ibid, at 489-491, 342-3.
DECISIONS AND ORDERS 611
Building Trades Department or the Metal Trades Department.?
Many disputes have never been settled, but are permitted to continue
through innumerable conferences in the hope of possible settlement.8
Thus the National Labor Relations Act did not give rise to these
problems. They occurred before,' they will doubtless occur again,
and they have prompted the majority of labor- organizations in this
country to establish a procedure of their own creation and manage-
ment for their solution. While the Act provides a new vocabulary
in which such jurisdictional disputes may be described, it does not
alter their nature. The instant case affords an apt illustration. The
Machinists Union claims that the machinists proper and the machine
fixers constitute together a "unit appropriate for the purposes of col-
lective bargaining" in the terminology of Section 9 (b). The To-
bacco Workers' Union contends that the tobacco workers and the ma-
chine fixers belong together and as such constitute an appropriate
unit, as do the machinists alone. But such use of the Act's terminol-
ogy does not disguise the real issue. Since both employers operate
on a closed shop basis, each employee in the plants must join some
union. Obviously, a craftsman will join the union to which other
members of his craft belong and which is recognized by the Ameri-
can Federation of Labor as having jurisdiction over that craft. As
long as the Machinists Union has recognized jurisdiction over ma-
chinists in the tobacco industry, a machinist will belong to that
Union. Similarly, a decision by the American Federation of Labor
on the jurisdictional question involving the machine fixers would'
determine to which organization they will choose to belong, unless
for some reason the parent body is defied. Consequently, the issue
remains as simply a jurisdictional dispute between two labor organi-
zations. Each recognizes the jurisdictional character of the other-
tobacco workers and machinists ; the question involves only the draw-
ing of a precise boundary line.
In In the Matter of AImminuin Company of America, decided April
10, 1936, the Board was concerned with a petition for certification in
which the principal question was whether the local officers or the
officials of the American Federation of Labor should represent a
Federal labor union in its dealings with the employer. We refused
to act upon such a petition and dismissed it, saying :
"The real question is therefore who represents and speaks for
the Alcoa Union and not whether that Union represents a ma-
jority of the employees at Alcoa. The Board feels that the
question is not for it to decide. Such a question, involving solely
7 Handbook of Ameiican Trade-Unions , op. cit supra, at 8-13; Lorwin , op. cit. supra, Ch.
XIV ; Hoxie, op cit supra, at 122.
8 Lorwin, op cit supra, at 341, 345 ; ware, op cit supra, at 496
'For examples , see Lorwm , op. cit supra, at 341, 508 et seq ., 516, 525, 536.
612 NATIONAL LABOR RELATIONS BOARD
and in a peculiar fashion the internal affairs of the American
Federation of Labor and its chartered bodies, can best be decided
by the parties themselves. The availability of the Board as a
convenient forum for the airing of such problems would induce
the parties to present them to the Board without first having
made any real attempt to compose their' differences among them-
selves. The consequent accumulation of cases on its docket would
considerably hamper the work of the Board. Nor do we feel that
the petitioner itself after a full consideration of the implications
of its request would desire the Board to pass judgment upon
such matters.
"It is preferable that the Board should not interfere with the
internal affairs of labor organizations. Self-organization of em-
ployees implies a policy of self-management. The role that
organizations of employees eventually must play in the structure
established by Congress through that Act is a large and vital one.
They will best be able to perform that role if they are permitted
freely to work out the solutions to their own internal problems.
In its permanent operation the Act envisages cohesive organiza-
tions, well-constructed and intelligently guided. Such organiza-
tions will not develop if they are led to look elsewhere for the
solutions to such problems. In fine, the policy of the National
Labor Relations Act is to encourage the procedure of collective
bargaining and to protect employees in the exercise of the rights
guaranteed to them from the denial and interference of employ-
ers. That policy can be best advanced by the Board's devoting
its attention to controversies that concern such fundamental
matters." 10
That decision is fully applicable here. Both of the labor organiza-
tions involved in the instant cases are affiliated with the American
Federation of Labor and possess charters from that body. In view
of the structure of that body, the instant controversy is simply a dis-
pute involving the internal affairs of a labor organization, here the
American Federation of Labor. That dispute resembles the hundreds
of other jurisdictional questions handled by the Federation and is
clearly of a type which it has power to decide. There thus exists a
10 See also In the Matter of Rabhor Company , Inc, decided April 7, 1936, in which the
Board held that testimony offered to prove that employees were induced to strike by false
statements and promises of union organizers was irrelevant , since the contention of the
employer that such conduct relieved him of the duty to bargain collectively was erroneous.
It said : "where groups are to be organized and moved into action it is not unusual for
the leaders to promise more than can be secured or to indulge in some exaggeration. In-
deed , it is one of the functions of collective bargaining to eliminate the misunderstand-
ings that are bound to arise in these struggles and to resolve demands into what can be
achieved . The Act does not give to us the mandate to examine the speeches and the
conduct of those whom the employees choose to follow, and to determine whether, in our
opinion, they are worthy to lead. That is for the workers alone to decide."
DECISIONS AND ORDERS 613
body to which these two organizations belong and which has the
authority to render a binding decision on the dispute between them.
Under such circumstances, the Board is of the opinion that it should
not intervene in the. dispute for the. reasons stated in the Aluminum
Company case.
It is perhaps unnecessary to point out that the internal dispute pre-
sented in these cases is merely one of many now existing within the
American Federation of Labor and other organizations of labor.
Some of these disputes, obviously difficult of solution, are far-reach-
ing and fundamental to the labor movement; others are small by
comparison. But in either case, it is preferable that in the light of
the declared policy of Congress-"the exercise by workers of full
freedom of association, self-organization and designation of repre-
sentatives of their own choosing"-the Board should leave organiza-
tions of labor free to work out their own solutions through the
procedure they themselves have established for that purpose.
The subsidiary issue in this case concerns the question of whether
the "machinists" are an appropriate bargaining unit separate from the
other employees in these plants. The two employers apparently are
of the opinion that they do not constitute such a unit; the Machinists
Union in its attempts to bargain with these employers asserts the
contrary proposition. But in both cases the attempted bargaining
between the respective employers and the Machinists Union has
floundered on the preliminary question of what is a "machinist"-the
Machinists Union contending that the term includes machine fixers
and the employers restricting it to machinists proper. If the Tobacco
Workers' Union and the Machinists Union were to settle their contro-
versy on that point it is possible that the latter Union could then
reach an understanding with the employers. The record contains
evidence indicating that such a belief is more than mere speculation.
Consequently, in view of the determination not to interfere in the
dispute between the two Unions, the Board is of the opinion that it
should refrain at this time from passing on the subsidiary issue.
Accordingly, the Board will not certify any representatives in these
two cases nor determine the appropriate bargaining unit.