The Firestone Tire & Rubber Co.

National Labor Relations Board - Board Decisions

Aug 24, 1970

185 N.L.R.B. 63 (N.L.R.B. 1970)

FIRESTONE TIRE & RUBBER CO
The Firestone Tire & Rubber Company and Local
Union No . 7, United Rubber Cork , Linoleum and
Plastic Workers of America , AFL-CIO,' Petition-
er. Case 8-UC-47
August 24, 1970
DECISION AND ORDER
Upon a petition of Local 7 for clarification of
unit duly filed on January 14, 1970, under Section
9(b) of the National Labor Relations Act, as amended,
a hearing was held before Hearing Officer Charles
Z. Adamson. All parites appeared at the hearing
and were given full opportunity to participate therein.
On February 26, 1970, the Regional Director for
Region 8 transferred the case to the National Labor
Relations Board. Thereafter, briefs were timely filed
by the Petitioner and the Employer.
The Board has reviewed the Hearing Officer's rul-
ings made at the hearing and finds that they are
free from prejudicial error. They 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, and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The Petitioner, a labor organization within the
meaning of the Act, is currently recognized bargaining
representative of employees of the Employer in two
separate bargaining units at the latter's Akron, Ohio,
plant. In this proceeding Petitioner seeks the Board's
consolidation of these two bargaining units. The
Employer opposes the requested consolidation and
has moved that the petition be dismissed. For the
reasons hereinafter set forth, we shall grant the motion
to dismiss.
3. The relevant facts are as follows: The Akron
plant is one of 11 plants at which the Employer
produces finished rubber tires.' Production and main-
tenance employees at all 11 plants are represented
by the Petitioner's International as well as by separate
local affiliates at each of the plants. For a number
of years the Employer and the International have
executed a master contract for all 11 plants. The
master contract was supplemented by local agreements
negotiated with the local representative at each plant
involved. The agreement in effect on the filing date
Herein called Local 7 or the Petitioner
The other 10 plants are located at Los Angeles, California, Memphis,
Tennessee , Bloomington , Illinois, Decatur, Illinois; Des Moines, Iowa,
Fall River, Massachusetts , New Castle , Indiana, Noblesville , Indiana;
Pottstown , Pennsylvania ; and Salinas , California
63
of this petition bore an expiration date of April 20,
1970.
Petitioner is the local union which has for some
time represented the approximately 4,285 employees
in the uncertified production and maintenance unit
at Akron. That unit, as defined in the Petitioner's
contract with the Employer, expressly excludes,
among others, employees classified as firemen. The
Akron firemen remained unrepresented until about
April 29, 1969,' when, following a Board election
held pursuant to an agreement for consent election
executed in Case 8-RC-7741, the Regional Director
for Region 8 certified Petitioner as the representative
of a unit confined to the firemen. The firemen unit
contains approximately 20 employees. In negotiations
conducted after the issuance of the Board's certifica-
tion, Petitioner requested that the firemen be added
to the uncertified production and maintenance unit
and be covered by the then existing plant contract.
The Employer refused.
Thereafter, on January 14, 1970, Petitioner filed
the instant clarification proceeding in which it seeks
a Board unit determination that would add the firemen
in the certified unit to the production and maintenance
employees in the uncertified unit, either without or
after a preliminary Board-conducted election among
the firemen to determine their unit preference. In
making this request, Petitioner does not assert that
there has been any relevant change in circumstances
affecting the firemen since the consent election agree-
ment. Nor does it contend that the unit lines as
now drawn define inappropriate units. Rather, it
appears to be Petitioner's claim that the merger of
the two existing units would form a more appropriate
unit.' For present purposes, we need not determine
' Employees classified as firemen are employed at two other of the
I1 plants covered by the master agreement, namely, at Los Angeles,
California, and at Memphis, Tennessee At Los Angeles, the plant firemen
are included in the production and maintenance unit and are covered
by the supplemental agreement between the Employer and the local
union at that plant At Memphis, the firemen are separately represented
by the United Plant Guards At the remaining plants covered by the
master agreement , the fire-fighting and fire-prevention functions compara-
ble to those of the firemen here involved are assigned to employees
who are classified as guards and who concededly have guard status
under the Act All these guards are unrepresented
' In support of its merger request, Petitioner points to cases in which
the Board has included in a plantwide production and maintenance
unit firemen performing functions similar to those of the firemen here
involved See Magma Copper Co., 115 NLRB 1, 3; Wilson & Co., 101
NLRB 1755, 1756 In each of these cases the Board' s unit determination
was made in the context of an RC proceeding involving an initial request
for a plantwide unit We note , however, that where, as here, the parties
themselves have voluntarily established a production and maintenance
unit excluding certain fringe classifications which the Board would ordinari-
ly have included in a plantwide unit and, after a history of bargaining
in the plantwide unit, the parties request the Board to find appropriate
a separate unit of the fringe employees , the Board has granted that
request See, e g ,Swift & Co., 131 NLRB 143
185 NLRB No. 11
64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the merits of that claim, as we would dismiss this
petition in any event for the reasons that follow.
Chairman Miller, without reaching other questions
that may be present, would dismiss the petition on
the ground of untimeliness. The Union filed its petition
herein less than a year after the Board had certified
it as the representative of the Employer's Akron
firemen and without, so far as appears, having first
made a genuine effort to negotiate a separate collective-
bargaining contract covering the employee unit for
which it was certified. The principle is now deeply
rooted in our law that "a bargaining relationship
once rightfully established must be permitted to exist
and function for a reasonable period in which it
can be given a fair chance to succeed." Frank Bros.
v. N.L.R.B., 321 U.S. 702, 725. The Board has long
recognized that consideration of claims questioning
the continued viability of a Board certification within
a year after issuance not only does violence to that
principle but also disrupts the orderly and stable
labor relations that a certification is designed to pro-
mote. Accordingly, the Board has established and
consistently applied a rule requiring the dismissal
of any representation petition filed during the certifica-
tion year. See Centr-O-Cast & Engineering Co., 100
NLRB 1507. It is true that the petition in this case
does not concern the representative status of the
certified Union, but only the unit in which bargaining
is to be conducted. But, in the opinion of Chairman
Miller, the Board action sought by this clarification
petition would be no less disruptive of the orderly
and stable labor relations envisioned by a certification
than would the action sought by a representation
petition.' This petition should, therefore, at a mini-
mum, be governed by the same principles and be
subject to the same rules with regard to timely filing.
He would therefore dismiss the petition herein as
having been untimely filed.'
Members Fanning and Jenkins agree with Chairman
Miller's application of the Board's Centr-O-Cast rule
to this petition. They would, however, also rest dis-
missal on other grounds. They adhere to the view,
reflected in their opinions in Libbey-Owens Ford Glass
Co., 169 NLRB No. 2, and P.P.G Industries, Inc.,
180 NLRB No. 85,' that, absent a question concerning
representation or a clear showing that as a result
of changed conditions the employees composing exist-
ing units have become so merged into a single overall
unit as to make their continued maintenance in sepa-
rate units inappropriate, the merger of established
'Cf NL R B v Prudential Insurance Co , 154 F 2d 385 (CA 6)
Nothing in the opinion of Chairman Miller is to be taken as intimating
any view on his part as to whether a unit issue of the kind sought
to be presented in this case may, or may not, be determined in a
clarification proceeding
' Both decisions predate the incumbency of Chairman Miller
units is a matter which, under the statutory scheme,
is to be left for voluntary bargaining by the parties.
In the instant case there is no claim-let alone any
showing-of changed conditions and no question con-
cerning representation is involved. Further, Members
Fanning and Jenkins note that a Board certification
provides certain important protections to an employer8
(as well as to a union) so long as he continues
to recognize the certified union and to bargain within
the unit certified and that these protections would
disappear if the firemen's unit was dissolved by the
Board's inclusion of the firemen in the production
and maintenance unit as requested by Petitioner. They
note that, in a somewhat comparable situation in
which an employer requested the inclusion of the
employees composing a small certified unit in a broad-
er unit, the Board declined to grant the request unless
the certified union expressly waived its rights under
the certification.' They do not believe the Employer
should be compelled to give up the statutory protec-
tions it is afforded under the certification simply
because the Union prefers to bargain in a unit other
than that certified-especially since the unit involved
had been agreed to by the parties, with Board approval,
as a basis for certification.
Members Fanning and Jenkins also note that as
the election resulting in the Petitioner's certification
was held in a separate unit confined to firemen,
there exists the possibility that the firemen might
not have voted for Petitioner had they been advised
that this would or might result in their being sub-
merged in the much larger production and mainte-
nance unit in which they would have but a small
minority voice. Although the doubt as to their desires
would be resolved by the conduct of the kind of
nonrepresentational election the Board conducted in
Libbey-Owens-Ford, supra, they believe, for the reasons
they stated in that case, that the Board is without
authority to conduct that kind of an election.
ORDER
The Board orders that the petition filed herein
be, and the same is hereby , dismissed.
MEMBERS MCCULLOCH AND BROWN , dissenting:"
As noted by our colleagues , the Petitioner urges
in support of its petition that the inclusion of the
See Sec 8 (b)(4)(ii)(C) and 8 (b)(4)(ii)(D) of the Act
See Prudential Insurance Co, 50 NLRB 689, 694, and 53 NLRB
775, 776 These two citations are to the representation proceedings
underlying the Board determinations which came before the Court in
the context of an 8 (a)(5) case in NL R B v Prudential Insurance Co,
supra, fn 5
10 Member Brown would grant this unit clarification petition without
a self-determination election among the employees now in the firemen's
unit However , as he does not have majority support for that position
he joins in the d :ssent of Member McCulloch
FIRESTONE TIRE & RUBBER CO
Akron plant's firemen in that plant's much larger
unit of production and maintenance employees would
result in a more appropriate unit. This contention
finds support in the record and in applicable Board
law. The facts presented leave little doubt that the
firemen share a sufficient community of interests with
other plant employees to justify their inclusion in
the broader unit. A unit confined to firemen of the
kind here involved will not be found inappropriate
if established with the consent of the parties. But
the Board has customarily held in cases where this
employee category has been in dispute that such
firemen must be grouped with production and mainte-
nance employees for purposes of collective bargain-
ing." As the unit the Petitioner requests is plainly
appropriate under Board standards, we believe that
statutory policy, as reflected in part by Section 9(b)
of the Act,12 would best be served by allowing the
employees now in the 20-man firemen's unit, should
they so desire, to become part of the production
and maintenance unit at the Akron plant. Accordingly,
we would not dismiss the petition in this case, but
would direct an election among the employees now
in the firemen's unit to determine whether they wish
to be represented for purposes of collective bargaining
as part of the plantwide unit of production and mainte-
nance employees. If the firemen so elect, we would
clarify the unit accordingly. See, Libbey-Owens-Ford
Glass Co., 169 NLRB No. 2."
The Board's majority holding does not pass on
the present appropriateness of the Petitioner's request-
ed unit merger. Instead, applying the Centr-O-Cast
" See Magma Copper Co, 115 NLRB 1, Wilson & Co, 101 NLRB
1755, 1756
" Sec 9 (b) mandates the Board in deciding unit issues to do so
with a view toward assuring employees "the fullest freedom in exercising
their rights under the Act "
" The cited case rejects the position of Members Fanning and Jenkins
in the instant case that, in the absence of a question concerning representa-
tion, the Board has no statutory authority to merge previously established
separate units or to conduct an election to determine employee desires
in that regard See, also McCulloch v Libbey-Owens-Ford Glass Co,
403 F 2d 916 (C A D C)
We are not impressed by the argument made by Members Fanning
and Jenkins- one not presented by the Employer- that the clarification
request if granted would, by dissolving the firemen's unit, withdraw
from the Employer protections now available to it under Sec 8 (b) (4)(ii)(C)
and (D) of the Act We suggest that our colleagues may be in error
as to 8 (b)(4)(ii)(D ) since, under its literal terms , the protections of
that section would appear to be as much applicable under a Board
clarification "order" adding the firemen to the production and maintenance
unit as under the present certification We note, too , that protections
substantially as extensive as those provided by Sec 8(b)(4)(u)(C) are
available to employers under Sec 8(b)(7) Unlike our colleagues, we
cannot ignore the fact that the employees also have statutory interests
and that Congress in Sec 9(b) of the Act emphasized the primacy
that must be given to the interest of employees in the Board's determination
of units The loss of employer protections, such as they are, to which
our colleagues advert-and for which the Employer's need is at best
remote and conjectural-does not, in our opinion, transcend in statutory
importance the employee rights and interests that are involved
65
rule, the majority dismisses this unit clarification peti-
tion on the ground that it was filed less than a
year after the Petitioner was certified as the representa-
tive for the firemen' s unit . The Centr-O-Cast rule
is limited in its stated application to representation
petitions (RM, RD, and RC) filed during a certifica-
tion year which challenge the majority status of an
incumbent certified representative; it has never hereto-
fore, as far as we know, been applied to unit clarifica-
tion petitions. The administrative bar announced in
Centr-O-Caston the processing of untimely filed repre-
sentation petitions was designed to support the long-
recognized principle that a statutory bargaining agent
must be left free of challenge to its majority status
for a year after it is certified. We are unable to
concur in the position of the majority that the unit
clarification petition in this case should "be governed
by the same principles and be subject to the same
rules with respect to timely filing."
We regard as patently overdrawn the view expressed
by the majority, that "the Board action sought by
this petition would be no less disruptive of orderly
and stable labor relations envisioned by a certification
than would the action sought by a representation
petition." A representation petition challenging an
incumbent union 's majority is clearly at war with
certification's protective purpose, since it is aimed
at the complete destruction of an established bargain-
ing relationship. In contrast, the action which Petition-
er seeks here looks toward the continuation of the
collective-bargaining relationship that presently exists
between the Petitioner and the Employer with respect
to both units at the Akron plant for which it is
now the recognized employee representative. All that
the Petitioner asks the Board to do is to combine
the two employee groups, for purposes of future collec-
tive bargaining, into a single and , under Board stand-
ards, a more appropriate unit. Far from being destruc-
tive of orderly and stable labor relations, the action
sought by the Petitioner should, more likely than
not, enhance the functioning of collective bargaining
by providing a more appropriate unit base and elimi-
nating a present cause of dissension.
Moreover, if the majority is laying down a new
rule that the Centr-O-Cast principle shall apply to
unit clarification petitions generally, we believe it
would be unnecessarily tying the Board's hands and
denying to employers and unions access to the Board's
processes to resolve unit-scope disputes at the very
time such resolution could be most useful in removing
obstacles to the institution of a stable bargaining
relationship.
If, as we believe, the Board could have effected
the unit merger even within the certification year,
66 DECISIONS OF NATIONAL
the issue of timely filing becomes irrelevant. But,
even if we agreed that the relief requested was of
a kind the Board should withhold during the initial
year of certification , we still would not subject this
petition to the Centr-O-Cast untimely filing rule. There
is good reason for applying a strict rule against the
processing of representation petitions filed during a
certification year . The very act of filing calls into
doubt the continuing majority status of the incumbent
and thus tends to have an intrusive and disturbing
effect on bargaining during the remainder of the
certification year . That reason is not present in the
case of a unit clarification petition . Nor has the
Board heretofore announced any administrative-bar
rules with respect to this kind of petition as it has
LABOR RELATIONS BOARD
with respect to representation petitions. The Board
is empowered to regulate its own certifications even
during the initial year , and parties to a collective-
bargaining relationship have a legitimate right and
interest in having access to Board processes for that
purpose . In the instant case, the petition was accepted
by the Regional Director , processed through hearing,
and is now before us on a full record for decision.
As more than a year from the date of certification
has now elapsed , and as the relief sought by the
petition can now be granted, we do not believe that
statutory policy is served by subjecting this petition
to the Centr-O-Castuntimely filing rule.
For the reasons stated above , we note our dissent
to the dismissal of the petition.