Douglas and Lomason Co.

National Labor Relations Board - Board Decisions

Aug 9, 1941

34 N.L.R.B. 69 (N.L.R.B. 1941)

In the Matter of DOUGLAS AND LOMASON COMPANY and INTERNATIONAL
UNION, UNITED AIITomoBILE WORKERS OF AMERICA, AFFILIATED WITH
THE C. I. O.
Case No. R-26'73.-Decided August 9, 1941
Jurisdiction : metal stamping manufacturing industry.
Investigation and Certification of Representatives
In furtherance of the purposes of the Act to attain stabilized labor relations
in industry through collective bargaining agreements held a closed-shop con-
tract of reasonable duration constitutes a bar to an investigation and certifi-
cation of representatives despite a change of affiliation by a substantial num-
ber of members of the contracting union to the petitioning labor organization.
Practice and Procedure : petition dismissed where no question concerning rep-
resentation exists.
Mr. Colonel C. Sawyer, for the Board.
Mr. Frederick W. Bauer, of Detroit, Mich., for the Company.
MD. Maurice Sugar, by Mr. Ernest Goodman and Mr. N. L. Smokler,
of Detroit, Mich., for the UAW-CIO.
Mr. Joseph Padway, by Mr. Henry Kaiser, of Washington, D. C., for
the UAW-AFL.
Mr. Frederic B. Parkes, end, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
On June 9 and 18, 1941, respectively, International 'Union, United
Automobile Workers of America, affiliated with the C. I. 0., herein
called the UAW-CIO, filed with the Regional Director for the Sev-
enth Region (Detroit, Michigan) a petition and an amended petition
alleging that a question affecting commerce had arisen concerning the
representation of employees of Douglas and Lomason Company, De-
troit, Michigan, herein called the Company, and requesting an investi-
gation and certification of representatives pursuant to Section 9 (e)
of the National Labor Relations Act, 49 Stat. 449, herein called the
Act. On June 19, 1941, the National Labor Relations Board, herein
called the Board, acting pursuant to Section 9 (c) of the Act, and
34 N. L. R. B., No. 8.
69
451269-42-vol. 34-6
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Article III, Section 3, of National Labor Relations Board Rules and
Regulations-Series 2, as amended, ordered an investigation and au-
thorized the Regional Director to conduct it and to provide for an
appropriate hearing upon due notice.
On June 20, 1941, the Regional Director issued a notice of hearing,
copies of which were duly served upon the Company, the UAW-CIO,
and International Union, United Automobile Workers of America,
affiliated with the A. F. L., herein called the UAW-AFL, a labor or-
ganization claiming to represent employees directly affected by the
investigation. Pursuant to notice, a hearing was held on June 25, 26,
and 27, 1941, at Detroit, Michigan, before Mortimer Riemer, the Trial
Examiner duly designated by the Chief Trial Examiner. The Board,
the Company, the UAW-CIO, and the UAW-AFL were represented
by counsel- or official representatives and participated in the hearing.
Full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing on the issues was afforded all parties.
During the course of the hearing the Trial Examiner made various
rulings on motions and on objections to the admission of evidence.
The Board has reviewed the rulings of the Trial Examiner and finds
that no prejudicial errors were committed. The rulings are hereby
affirmed. On July 16 and 17, 1941, respectively, the UAW-AFL and
the UAW-CIO filed briefs which the Board has considered.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Douglas and Lomason Company, a Michigan corporation, is engaged
in the manufacture of metal stampings for the automobile industry
at its plant in Detroit, Michigan. During 1940, the Company pur-
chased raw materials valued at approximately $1,000,000, of which
approximately 80 per cent were shipped to it from points outside the
State of Michigan. During the same period, the Company sold prod-
ucts valued at approximately $2,250,000, of which approximately 34
per cent were sold and shipped to points outside the State of Michigan.
The Company employs approximately 500 employees.
II. THE ORGANIZATIONS INVOLVED
Local No. 858, International Union, United Automobile Workers of
America, is a labor organization affiliated with the Congress of Indus-
trial Organizations, admitting employees of the Company to member-
ship.
Local No. 669, International Union, United Automobile Workers
of America, is a labor organization affiliated with the American Fed-
eration of Labor, admitting employees of the Company to membership.
DOUGLAS & LOMASON COMPANY 71
III. THE ALLEGED QUESTION CONCERNING REPRESENTATION
On June 7, 1941, Local No. 858, UAW-CIO, requested the Company
to recognize it as the exclusive bargaining representative of the Com-,
pany's employees. The Company refused to grant such recognition
for the reason that the Company was in contractual relationship with
the UAW-AFL. On June 9, 1941, the UAW-CIO called a strike.
On December 5, 1940, the Company and Local No. 669, UAW-AFL,
entered into a closed-shop contract, recognizing Local No. 669, UAW-
AFL, as the exclusive bargaining representative of all the Company's
employees within the unit herein stipulated by the parties to be appro-
priate, except the toolroom and die-room employees.' The latter em-
ployees were brought under the contract by two supplemental agree-
ments which were made part of the original contract. Such agreements
were executed on March 12 and April 8, 1941, respectively. The con-
tract provided that it should be in effect until April 1, 1942, and that
after that date it might be amended or canceled by either of the parties
upon 30 days' written notice.
Early in 1941, considerable sentiment in favor of the UAW-CIO
arose among the Company's employees. On April 2 and May 25, 1941,
representatives of the Company's employees requested the UAW-CIO
to grant them a charter. The UAW-CIO refused to grant a charter
until more definite proof should be shown that an overwhelming ma-
jority of the Company's employees were in favor of shifting to the
UAW-CIO. On June 6,1941, the UAW-CIO chartered Local No. 858.
The UAW-CIO asserts that it did not commence any organizational
activities at the Company's plant until after the strike was called on
June 9, 1941.
On May 23, 1941, the president of Local No. 669, UAW-AFL, sub-
mitted his resignation to be effective at once. On the same day a special
meeting of the bargaining and shop committees, the shop stewards,
and some of the executive officers, hereinafter called the Executive
Committee, was called.' At that meeting, the Executive Committee
accepted his resignation.' On May 29, 1941, at another meeting, the
1 At the hearing the Company , the UAW-CIO, and the UAW-AFL stipulated that all
employees of the Company in the press , molding No . 1, molding No. 2, board , paint, ship-
ping, stock , maintenance , tool and die room , inspection , and fire departments , excluding
office and clerical help, superintendents , assistant superintendents , foremen , assistant
foremen , and plant protection employees , constitute a unit appropriate for the purposes of
collective bargaining.
2 The UAW-CIO contends that this committee was in fact the Executive Board and that
its subsequent action was within the scope of its authority The UAW-AFL claims that
the committee was not the Executive Board, and that its action was based upon usurped
power. 'The UAW-AFL constitution provides , "The Executive Board of each local union
shall consist of all the elected union officers and such members at large as the local may
deem necessary."
3 There is conflicting testimony in the record on this point A witness for the UAW-AFL
testified that the Executive Committee deferred the consideration of the president 's resig-
nation until the next regular meeting of Local No . 669, UAW-AFL
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Executive Committee elected a president pro-tem.4 On June 5, 1941,
the Executive Committee authorized the president pro-tem "to file for
an N. L. R. B. election." On June 7, 1941) the president pro-tem in the
name of Local No. 669, UAW-AFL, filed a petition for an investigation
and determination of representatives. The petition was subsequently
dismissed.
On June 7, 1941, at a general meeting of Local No. 669, UAW-AFL,
attended by 250 to 300 employees of the Company, the membership of
Local No. 669, UAW-AFL, by unanimous vote 5 assigned all its interest
in the above contract and all its assets to Local No. 858, UAW-CIO."
At the same meeting a resolution was unanimously adopted to disband
Local No. 669, UAW-AFL, and to return its charter to the UAW-AFL.
Immediately upon the adjournment of'that meeting, the employees in
attendance convened at a meeting of Local No. 858, UAW-CIO, and
voted to carry over the same officers of Local No. 669, UAW-AFL, as
officers of Local No. 858, UAW-CIO. At this meeting Local No. 858,
UAW-CIO, formally accepted the assignment of the contract.
On June 9, 1941, a meeting of Local No. 669, UAW-AFL, was
called and was attended by approximately 150 employees of the-
Company. The resignation which the president of Local No. 669,
UAW-AFL, had tendered on May 23, 1941, was formally rejected.
Subsequent meetings of Local No. 669, UAW-AFL, were held on
June 12, 19, and 24, 1941, and were attended by 150 to 200 employees
of the Company.'
The UAW-CIO contends that Local No. 669, UAW-AFL, has
been disbanded, that more than two-thirds of its membership desire
to change their affiliation to Local No. 858, UAW-CIO," that the
4 The UAW-AFL contends that the election of a temporary president was beyond the
authority of the Executive Committee or of the Executive Board, because the constitution
of the UAW-AFL provides that all questions of a parliamentary nature shall be decided by
Robert's Rules of Order. The latter provides that under any constitution no subordinate
body may set aside or modify any action of its superior . The election of officers is
specifically granted by the constitution of the UAW-AFL to the local union as a whole
5 Testimony in the record is conflicting on the question of the unanimity of the vote
cast for this and other resolutions adopted at the meeting . Witnesses for the UAW-CIO
testified that the resolutions were unanimously adopted ; witnesses for the UAW-AFL
testified that there were dissenting votes.
6 The meeting was called to order by the president pro-tem, elected by the Executive
Committee . The UAW-AFL contends that he had no authority to conduct the meeting,
because both Robert's Rules of Order and the constitution of the UAW-AFL provide that
either the president or the vice president must conduct the meeting . The UAW-AFL
asserts that the regular order of business was set aside at the outset of the meeting
by the president pro-tem without submitting such action to vote, thus constituting still
another infraction of Robert 's Rules of Order. Early in the meeting , the president pro-
tem was elected president by acclamation
7 The testimony in the record is conflicting on, the number present at these meetings
A witness for the UAW-CIO testified that there were only 35 to 75 persons present at the
various meetings.
fi The UAW-CIO submitted to the Regional Director 214 authorization cards, of which
15 were undated , 2 were dated in October 1940, and 197 were dated in June 1941. The
UAW-CIO also submitted undated petitions ratifying the shift to the UAW-CIO, bearing
13 names. The Regional Director found all the signatures , except 4, to be genuine and 227
DOUGLAS & LOMASON COMPANY 73
1940 contract between the Company and Local No. 669, UAW-AFL,
has been assigned to Local No. 858, UAW-CIO, and accordingly,
that a question concerning representation exists. It further con-
tends that since Local No. 669, UAW-AFL, filed a petition for an
investigation and certification of representatives on June 7, 1941, it
cannot claim the 1940 contract to be a bar to the petition filed by
the UAW-CIO.
The UAW-AFL, on the other hand, claims that no question con-
cerning representation exists, because of the existence of its 1940
contract with the Company. It further contends that the action
taken by the Executive Committee and by the general meeting of
Local No. 669, UAW-AFL, on June 7, 1941, was in violation of the
UAW-AFL constitution governing Local No. 669 9 and hence that
Local No. 669, UAW-AFL, is still in existence and has not changed
its affiliation to the UAW-CIO, and that the attempted assignment
of the 1940 contract was invalid. It further claims that the peti-
tion filed on June 7, 1941, in the name of the UAW-AFL, was not
made in good faith, having been filed without the authorization of
the membership of Local No. 669, UAW-AFL.
The constitution of the UAW-AFL provides, "no Local Union,
Ladies Auxiliary, District Council, or subordinate body shall dis-
band as long as fifteen members or two Local Unions desire to
retain the Charter." From a statement of the Trial Examiner
introduced into evidence at the hearing, it is apparent that there
are more than 15 members who desire to retain the charter of Local
No. 669, UAW-AFL.10 Furthermore, the four subsequent meetings
of Local No. 669, UAW-AFL, are a positive indication of the fact
that it is a functioning organization. Under the circumstances,
without considering the alleged irregularities of the action taken by
fie Executive Committee and by the general meeting of Local No.
669, UAW-AFL, on June 7,,1941, we are of the opinion that the
adoption of the resolutions to change its affiliation to the UAW-CIO,
to assign the 1940 contract to the UAW-CIO, and to disband Local
signatures to be the names of persons appearing on the Company 's pay roll of June 9,
1941. At the hearing, the UAW-CIO submitted 10 additional cards to the Trial Examiner,
who found 2 cards, undated , to bear genuine signatures of persons whose names were on
the pay roll of June 9, 1941 , and were not included in the Regional Director 's statement
There are approximately 333 employees within the alleged appropriate unit.
9 See footnotes 2, 4, and 6, supra. The international president of the UAW-AFL and
an international representative of the UAW-AFL, who was a member of Local No. 669,
were both denied admission to the meeting of June 7, 1941, in spite of the fact that the
constitution of the UAW-AFL authorized them to attend any meeting at any time.
10 The UAW-AFL submitted to the Trial Examiner several petitions bearing the signa-
tures of 99 persons, who therein reaffirmed their desire to be represented by Local No. 669,
UAW-AFL, for the purposes of collective bargaining . The Trial Examiner found that
97 of the signatures were genuine and 94 were the signatures of persons whose names
were on the Company's pay roll of June 9, 1941 . He further found that of the total
number of genuine signatures , 34 also appeared on UAW-CIO authorization cards or
petitions.
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
No. 669, UAW-AFL, was not sufficient to deprive Local N6. 669,
UAW-AFL, of its existence or of its right to enforce the contract
it entered into with the Company on December 5, 1940, the term of
which is for a reasonable duration.h1
Nor do we find any merit in the UAW-CIO's contention that the
UAW-AFL cannot claim its 1940 contract to be a bar to the instant
proceeding since it filed a petition requesting an investigation and
certification of representatives on June 7, 1941. The record clearly
indicates that the petition was filed not in behalf of Local No. 669,
UAW-AFL, but rather for its members who were seeking to change
its affiliation to the UAW-CIO12
Although. there has been a considerable shift in membership from
the UAW-AFL to the UAW-CIO, we are of the opinion that the
Board in furtherance of the purposes of the Act to attain stabilized
labor relations in industry through collective bargaining agreements
should not proceed to an investigation and certification of repre-
sentatives during the term of the contract between the Company
and Local No. 669, UAW-AFL. In view of the circumstances,
therefore, we find that the contract between the Company and Local
No. 669, UAW-AFL, executed on December 5, 1940, constitutes a
bar to an investigation and certification of representatives at the
present' time.
We find that no question has arisen concerning the representation
of employees of the Company.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSION OF LAW
No question concerning the representation of employees of Douglas
and Lomason Company, Detroit, Michigan, exists within the meaning
of Section 9 (c) of the Act.
ORDER
Upon the basis of the foregoing findings of fact and conclusion of
law, the National Labor Relations Board hereby orders that the peti-
11 Cf. Matter of M. and M. Wood Working Company and Plywood and Veneer Worker.
Union, Local No . 102, affiliated with International Woodworkers of America , 6 N. L. R. B.
372, reversed in M. and M. Wood Working Co . at al. v. National Labor Relations Board
(C. C. A. 9) 101 F. ( 2d) 938; Matter of J. E. Pearce Contracting and Stevedoring Com-
pany, Inc. and International Longshoremen and Warehousemen 's Union, Local 2-5,
20 N L. R. B. 1061
12 The UAW-AFL petition was filed by the president pro-tem of Local No . 669 on June
7, 1941, the day he was elected president of Local No . 858, UAW-CIO. Moreover, he was
one of the chief advocates for a change in affiliation to the UAW-CIO. Under the circum-
stances presented in the instant case, it would hardly be conceivable that a labor organ-
ization, having a closed -shop contract with the Company , would desire an- investigation
and certification of representatives merely because a rival labor organization claimed to
represent some of the Company 's employees.
DOUGLAS & LOMASON COMPANY 75
tion for investigation and certification of representatives, filed by
International Union, United Automobile Workers of America, affili-
ated with the Congress of Industrial Organizations, be, and it hereby
is, dismissed.
MR. EDWIN S . SMITH , dissenting :
I dissent from the decision of the majority that the contract be-
tween the Company and Local No. 669, UAW-AFL, executed on
December 5, 1940, constitutes"a bar to a present investigation and cer-
tification of representatives.
I agree with the majority that stability of labor relations is an im-
portant objective which this Board should seek to promote through
the- proper exercise of an informed administrative discretion. Thus,
where employees shift their membership from Union A to Union B
during the middle of the term of a valid exclusive bargaining con-
tract between the employer and Union A, which is in its first year
and is for a -reasonable: term, I would not direct an election on the
petition of Union B. Such action would not defeat self-organization,
since at the close of the term of the contract, or after 1 year, which-
ever occurs sooner, an election may be had and the desires of the em-
ployees with respect to representation may be effectuated. However,
when the contract asserted as a bar provides for a closed shop and
more than a^ majority of the employees have changed their affiliation
to a rival labor organization, even though during the original term
of the contract, as in the instant case, I am firmly convinced that the
policy of the Act to promote stability of labor relations through
collective bargaining agreements , if applicable in this situation,13 must
yield to the fundamental doctrine of majority rule, enunciated in Sec-
tion 9 (a) of the Act. Nevertheless, I would grant employees the
opportunity to make such selection only where there was a competent
prima facie showing that a majority had shifted from the contracting
13 The policy of promoting stable labor relations through collective bargaining agreements
is not in fact applicable in this situation . In my view all the substantive provisions of a
labor agreement, including those relating to wages , hours, other working conditions,' and
the settlement of employment problems which may arise in the future, continue in full
force and effect after a new representative is selected in the election I would direct, and
only those provisions become invalid which recognize the repudiated union as representing
the employees To suspend the latter provision under such circumstances not only does not
disrupt the agreement in any realistic sense or render the results of collective bargaining
unstable or uncertain , but is, on the contrary , the only way in which the ultimate congres-
sional goal of industrial peace may be achieved ; for it prevents employers from destroying
the right of the majority of the employees to organize and select collective bargaining
representatives of their own choosing , the denial of which right the Congress found to be
a fruitful source of industrial unrest. See my dissents in Matter of Ansley Radio Cor-
poration and Local 1221 United Electrical & Radio Workers of America , C. 1. 0., 18
N. L R. B. 1028 ; Matter of - Taylor Milling Corporation and Avery Smith and James L.
Wykes, 26 N L R. B 424 ; see also my dissent to the Proposed Findings of Fact , Pob iosed
Conclusions of Law, and Proposed Order in Mattei of Rutland Court Owners , Inc and
United Building Service Employees Local Union, Local No 695, and Building Service Employees
International Union, Local 82
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union to a rival organization. Given such a prima facie majority, I
consider it repugnant to the purposes of the Act not to permit the
formalizing of such majority by a Board certification following an
election. Otherwise, long before the end of the, contract period, when
a majority of the Board would permit the question concerning repre-
sentation to be opened, the employer, by virtue of the closed-shop con-
tract, would be able to destroy the majority by dismissal of those
employees who have shifted their affiliation. Such an undermining
of the whole principle of self-organization opens the way to a seem-
ingly limitless perpetuation as representative of the union which
happens to be the employees' initial choice. Self-organization of em-
ployees is the primary source from which -flows all the advantages
envisioned by Congress in the enactment of the statute. To risk'the
frustration of the possibility of free self-organization in the future,
as the majority opinion does, accords to contractual stability a posi-
tion of such eminence as to defeat the purpose of the Act. With this
I cannot agree.
Therefore, since the contract between the Company and Local No.
669, UAW-AFL, requires membership in that local as a condition of
employment, and since approximately two-thirds of the Company's
employees covered by the contract have changed their affiliation to
Local No. 858, UAW-CIO,14 I am of the opinion that the contract
is^ no bar to a present determination of representatives 1
For the foregoing reasons, I would find that a question has arisen
concerning the representation of 'employees of the Company and
would order that an election by secret ballot be conducted among the
employees in the stipulated unit 16 to determine whether they desire
to be represented by Local No. 858, UAW-CIO, or by Local No. 669,
UAW-AFL, for the purposes of collective bargaining, or by neither.
14 See footnote 8, supra.
15 In view of the fact that in my opinion the contract between the Company and Local
No 669, UAW-AFL, Is no bar to the instant proceeding , I find It unnecessary to consider
whether the record discloses that Local No. 669, UAW-AFL has disbanded and trans-
ferred its contract and assets to Local No 858.'UAW-CIO.
10 See footnote 1, supra.