The Cessna Aircraft Co.

National Labor Relations Board - Board Decisions

Apr 22, 1959

123 N.L.R.B. 855 (N.L.R.B. 1959)

THE CESSNA AIRCRAFT COMPANY 855
We still have one other allegation in the complaint to dispose of and that is that
Fritz Whitmer, steward for Local 513, on or about September 15, 1957, threatened
to inflict bodily injury to certain of the employees of Harrison and Snodgrass in
furtherance of the Respondent Union's illegal conduct.9 The only testimony in
the record that could possibly apply to this allegation in the complaint is Eichel-
berger's testimony to the effect that Whitmer told him that Davis told him that
"if you wasn't satisfied with the whipping that he'd come back and give you an-
other." Whitmer's version of the conversation was that Eichelberger started the
conversation and told him that he had a permit to carry a gun and that "if he had
to he was going to use it." To which he replied, "Well, now I will tell you, Charlie,
if you don't like the way the boy did it [meaning Davis] I believe he'd be glad to
come back and do it over." Whitmer's testimony stands uncontradicted and un-
denied in the record. Eichelberger was present in the hearing room at the time
Whitmer testified but was not called to rebut this important testimony. Whitmer
impressed the Trial Examiner as an honest witness. On the other hand, Eichelberger
impressed the Trial Examiner as loquacious and inclined to exaggerate at times, and
a bit impressed with his own self-importance, as evidenced by his conduct at the time
the fight started. In the circumstances the Trial Examiner is inclined to and does
credit Whitmer's version of the above incident. As the Trial Examiner sees it, the
shoe is on the other foot, so to speak, insofar as the allegation in the complaint
as to the activities of Whitmer. In the circumstances the Trial Examiner will
recommend below that this allegation in the complaint be likewise dismissed.
The complaint also alleges that one Charlie Estes engaged in certain illegal con-
duct as an agent of the Respondent Union. The only reference in the record as
to Estes is found in the testimony of Snodgrass. He testified that Estes threatened
to "teach" him some of the union rules. Though the Trial Examiner credits
Snodgrass' testimony in this regard, he is unable to find any substantial evidence in
the record that Estes was ever designated an agent of the Respondent Union. Nor
is there any evidence in the record that Estes at times material herein held any
office in the Union. In the circumstances the Trial Examiner will recommend
that the allegation in the complaint as to his misconduct on behalf of the Respondent
Union be also dismissed in its entirety.
Conclusions
After long and careful consideration of the entire record, the General Counsel's
brief, and the above findings, the Trial Examiner concludes that the Respondent
Union did not violate Section 8(b) (1) (A) and (2) of the Act as alleged in the
complaint.
[Recommendations omitted from publication.]
9 See supra.
The Cessna Aircraft Company and International Association of
Machinists, District Lodge No. 70, AFL-CIO, Petitioner. Case
No. 17-RC-2782. April 22, 1959
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before William J. Cassidy, 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 organization involved claims to represent employees
of the Employer.
123 NLRB No. 103.
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The question concerning representation :
The Employer contends that its existing contract with the Peti-
tioner is a bar to the present petition because the Petitioner, by con-
tract, had agreed not to represent (employees of the inspection
department (the employees sought in its present petition) during the
term of the current agreement. The Petitioner contends that the
current agreement provides only that these employees will not neces-
sarily be automatically included but that it had not at any time bar-
gained away its right to represent them.
On October 21, 1957, the parties executed a collective-bargaining
agreement effective November 15, 1957, to remain in effect through
November 14, 1959, with a provision for opening for wage negotia-
tions 60 days prior to the first annual anniversary date. The unit
described in the contract consists of "all employees engaged in produc-
tion, maintenance work and parts room at the Hutchinson, Kansas,
plant of the Employer, including working supervisors, but excluding
the following classifications: nonworking suprvisors, engineers in any
department, office workers, watchmen, guards and janitors." Im-
mediately after this unit description appears the following provision :
It is understood and agreed that messenger boys, timekeepers,
employees of the inspection department, and inen engaged in
looking after warehouses and storerooms are part of the account-
ing or administration personnel and as such are classified as office
workers. [Emphasis supplied.]
In support of its contention that the Petitioner, by virtue of the
quoted provision, has in fact agreed not to seek to represent the
employees of the inspection department during the term of the current
agreement, the Employer relies on the Briggs Indiana doctrine 1 that
where a collective-bargaining agreement contains a provision by
which the union obligates itself to refrain from seeking to represent
certain employees, the Board will not during the life of that agreement
entertain a. petition for representation of such employees by that union.
However, as this doctrine is, in a sense, a limitation upon the rights of
employees to select representatives of their own choosing, its applica-
tion has in the past been limited to such situations where it is clear that
the union obligated itself not to represent them during the contract
term, and thus a mere exclusionary clause, without more, has not been
deemed sufficient to invoke the Briggs Indiana rule.2 An analysis of
the language of the pertinent provisions of the contract in the instant
case leads us to the conclusion that while the employees of the inspec-
'Briggs Indiana Corporation, 63 NLRB 1270.
2 See, for example, Chase Brass