Interlake Iron Corp.

National Labor Relations Board - Board Decisions

Nov 9, 1937

4 N.L.R.B. 55 (N.L.R.B. 1937)

In the Matter Of INTERLAKE IRON CORPORATION and AMALGAMATED
ASSOCIATION OF IRON, STEEL, AND TIN WORKERS OF NORTH AMERICA,
LOCAL No. 1657
Case No. R-316
Mr. Jack G. Evans, for the Board.
Pope and Ballard, by Mr. Edward W. Ford, of Chicago, Ill., for
Interlake Iron Corporation.
Mr. Th urlow G. Lewis, of Chicago, Ill., for Amalgamated Associ-
ation of Iron, Steel, and Tin Workers of North America, Local No.
1657.
Mr. John F. Cusack, of Chicago, Ill., for Employees Association of
Interlake Iron Corporation.
Mr. Lester Asher, of counsel to the Board.
DIRECTION OF ELECTION
November 9, 19.37
The National Labor Relations Board, having found upon an ex-
amination of the record in the above matter that a question affecting
commerce has arisen concerning the representation of employees of
Interlake Iron Corporation, Chicago, Illinois, and that the employees
paid on an hourly rate and the heaters paid on a monthly rate em-
ployed by the Company at its Chicago, Illinois, plant , excluding su-
pervisory employees, cafeteria managers, patrolmen, watchmen, gate-
men, first aid men, bus operators, and laboratory samplers and chem-
ists, constitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9 (b) of the National Labor
Relations Act, 49 Stat. 449, and acting pursuant to the power vested
in it by Section 9 (c) of said Act, and pursuant to Article III, Section
8, of National Labor Relations Board Rules and Regulations-Series
1, as amended, hereby
DIRECTS that , as part of its investigation to ascertain representa-
tives for the purposes of collective bargaining with Interlake Iron
Corporation, Chicago, Ill., an election by secret ballot shall be con-
ducted within a period of fifteen (15) days from the date of this
Direction of Election, under the direction and supervision of the
Regional Director for the Thirteenth Region, acting in this matter
67573-38-vol. iv-5 55
I
56 NATIONAL LABOR RELATIONS BOARD
as the agent of the National Labor Relations Board, and subject to
Article III, Section 9, of said Rules and Regulations, among the em-
ployees paid on an hourly rate and the heaters paid on a monthly
rate employed by the Company at its Chicago, Illinois, plant, on
June 24, 1937, excluding all supervisory employees, cafeteria manag-
ers, patrolmen, watchmen, gatemen, first aid men, bus operators, and
laboratory samplers and chemists, and excluding all those employees
who have since quit or been discharged for cause, to determine
whether they desire to be represented by Amalgamated Association of
Iron, Steel, and Tin Workers of North America, Local No. 1657, or
Employees Association of Interlake Iron Corporation for the pur-
poses of collective bargaining , or by neither.
MR. DONALD WAKEFIELD SMITH took no part in the consideration
of the above Direction of Election.
[SAME TITLE]
AMENDMENT TO DIRECTION OF ELECTION
November 20, 1937
On November 9, 1937 , the National Labor Relations Board , herein
called .the Board, issued a Direction of Election in the above-
entitled matter.
On November 11, 1937, and on November 15, 1937, Steel Workers
Organizing Committee and Amalgamated Association of Iron, Steel,
and Tin Workers of North America, Local No. 1657, respectively;
filed with the Board requests that it amend the Direction of Election
by designating the petitioning union as "Steel Workers Organizing
Committee for the Amalgamated Association of Iron, Steel, and Tin
Workers of North America, Local No. 1657, affiliated with the C. I.
0." Copies of said requests were served upon Interlake Iron Cor-
poration and upon Employees Association of Interlake Iron Cor-
poration, and no objection thereto has been received by the Board.
The Board hereby amends its Direction of Election by striking
therefrom the name, "Amalgamated Association of Iron, Steel, and
Tin Workers of North America, Local No. 1657", wherever it occurs,
and substituting therefor the name, "Steel Workers Organizing Com-
mittee for the Amalgamated Association of Iron, Steel, and Tin
Workers of North America, Local No. 1657, affiliated with the
C. I. O."
MR. DONALD WAKEFIELD SMITH took no part in the consideration
of the above Amendment to Direction of Election.
DECISIONS AND ORDERS 57
[SAME TITLE]
AMENDMENT TO DIRECTION OF ELECTION
November 23, 1937
On November 9, 1937, the National Labor Relations Board, herein
called the Board, issued a Direction of Election in the above-entitled
case, the election to be held within 'fifteen (15) days from the date
of the Direction.
On November 11, 1937, and on November 15, 1937, Steel Workers
Organizing Committee and Amalgamated Association of Iron, Steel,
and Tin Workers of North America, Local No. 1657, respectively, filed
with the Board requests that it amend the Direction of Election by
designating the petitioning union as "Steel Workers Organizing Com-
mittee for the Amalgamated Association of Iron, Steel, and Tin
Workers of North America, Local No. 1657, affiliated with the C. I. O."
On November 18, 1937, the same parties filed with the Board a
joint request that the Direction of Election be further amended by
striking therefrom the words "or by neither", which appear in the
last line of said Direction of Election.
Copies of said requests were served upon Interlake Iron Corpora-
tion and upon Employees Association of Interlake Iron Corporation.
In order to afford the Board opportunity to consider these requests,
the Board hereby amends its Direction of Election issued on No-
vember 9, 1937, by striking therefrom the words, "within a period
of fifteen (15) days from the date of this Direction", wherever they
occur therein, and substituting therefor the words, "within a period
of thirty (30) days from the date of this Direction".
MR. DONALD WAKEFIELD SMITH took no part in the consideration of
the above Amendment to Direction of Election.
[SAME TITLE]
AMENDMENT TO DIRECTION OF ELECTION
December 7, 1937
On November 9, 1937, the National Labor Relations Board, herein
called the Board, issued a Direction of Election in the above-entitled
case, the election to be held within fifteen (15) days from the date of
the Direction. Thereafter Steel Workers Organizing Committee and
Amalgamated Association of Iron, Steel, and Tin Workers of North
America, Local No. 1657 filed with the Board requests that it amend'
the Direction of Election by designating the petitioning union as
58 NATIONAL LABOR RELATIONS BOARD
"Steel Workers Organizing Committee for the Amalgamated Asso-
ciation of Iron, Steel, and Tin Workers of North America, Local No.
1657, affiliated with the C. 1. 0.", and also that the Direction of Elec-
tion be further amended by striking therefrom the words "or by
neither." On November 20, 1937, the Board' amended the Direction
of Election, changing the name of the petitioning union as requested,
and on November 23, 1937, the Board further amended the Direc-
tion of Election by striking therefrom the words "within a period
of fifteen (15) days from the date of this Direction", and substituting
therefor the words "within a period of thirty (30) days from the
date of this Direction."
Employees Association of Interlake Iron Corporation, by John F.
Cusack, its counsel, filed with the Board, on November 22, 1937, a
petition and motion to amend the Direction of Election by adding
certain additional classes of employees to those eligible to vote at
the election, and on November 23, 1937, a petition joining in the
motion to strike the words "or by neither" from the Direction of
Election.
On December 2, 1937, counsel for Steel Workers Organizing Com-
mittee appeared' before the Board at Washington, D. C., and orally
argued the motion to amend the Direction of Election by striking
therefrom the words "or by neither."
In order to afford the Board opportunity to consider these peti-
tions and motions, the Board hereby amends its Direction of Election
issued on November 9, 1937, as amended, by striking therefrom the
words, "within a period of thirty (30) days from the date of this
Direction", and substituting therefor the words, "within a period of
sixty (60) days from the date of this Direction."
MR. DONALD WAKEFIELD SMITH took no part in the consideration
of the above Amendment to Direction of Election.
[SAME TITLE]
SUPPLEMENT TO DIRECTION OF ELECTION
December 28, 1937
By its Direction of Election dated November 9, 1937, as amended,
the National Labor Relations Board, herein called the Board, as part
of its investigation to ascertain representatives for the purposes of
collective bargaining with Interlake Iron Corporation, Chicago,
Illinois, directed the Regional Director for the Thirteenth Region,
acting as the agent of the Board and subject to the provisions of
National Labor Relations Board Rules and Regulations-Series 1,
as amended, to conduct an election by secret ballot among the em-
DECISIONS AND ORDERS 59
ployees paid on an hourly rate and the heaters paid on a monthly
rate employed by said company, at its Chicago, Illinois, plant, on
June 24, 1937, excluding all supervisory employees, cafeteria manag-
ers, patrolmen, watchmen, gatemen, first aid men, bus operators,
and laboratory samplers and chemists, to determine whether they
desire to be represented by Steel Workers Organizing Committee for
the Amalgamated Association of Iron, Steel, and Tin Workers of
North America, Local No. 1657, affiliated with the C. I. 0., or Em-
ployees Association of Interlake Iron Corporation, for the purposes
of collective bargaining, or by neither.
On November 18, 1937, Steel Workers Organizing Committee and
Amalgamated Association of Iron, Steel, and Tin Workers of North
America, Local No. 1657, filed with the Board a joint motion re-
questing that the Direction of Election be amended by striking there-
from the words "or by neither" appearing in the last line of said
Direction of Election. On November 23, 1937, Employees Associa-
tion of Interlake Iron Corporation filed a petition stating that it had
no objection to the granting of the motion to strike the words "or
by neither" and that it joined therein. Notice of a hearing for the
purpose of oral argument on this motion was served upon all the
parties to this proceeding and also upon Charlton Ogburn, counsel
for the American Federation of Labor and upon Lee Pressman,
counsel for the Committee for Industrial Organization. Pursuant
to the notice a hearing was held before the -full Board at Washing-
ton, D. C., on December 2, 1937. Steel Workers Organizing Com-
mittee availed itself of this opportunity for argument and appeared
by its counsel, Anthony Wayne Smith.
Section 9 (a) of the National Labor Relations Act reads as fol-
lows : "Representatives designated or selected for the purposes of
collective bargaining by the majority of the employees in a unit ap-
propriate for such purposes, shall be the exclusive representatives of
all the employees in such unit for the purposes of collective bargain-
ing . . ." The problems presented by this Section were ana-
lyzed by the Board in Matter of R. C. A. Manufacturing Company,
Inc. and United Electrical d Radio Workers of America 2 and it
was there stated :
Three interpretations of this language as applied to election
cases have been suggested: (1) the phrase, "majority of the em-
ployees", refers to an affirmative majority of the employees
eligible to vote, so that to be certified as the exclusive representa-
tive an organization must have received a number of affirmative
votes equal to a majority of the employees eligible to vote in the
election;-(2) the phrase "majority of the employees", refers to
2 2 N. L. R. B. 159.
60 NATIONAL LABOR RELATIONS BOARD
the employees participating in the election, so that the organiza-
tion which is the victor in an election participated in by at
least a majority of the eligible employees is to be certified as the
exclusive representative; (3) the phrase, "majority of the em-
ployees", refers to a majority of the eligible employees voting
in the election, so that the organization receiving a majority of
the votes cast is to be certified as the exclusive representative
(p. 173).
After a detailed discussion of all the available decisions involving
this problem, the Board concluded :
It is an accepted canon of statutory construction that an
unwise and unworkable interpretation is to be rejected if another,
and sensible, interpretation is at hand. Consequently, we feel
that the third interpretation mentioned above, a majority of the
eligible employees voting in the election, is required if the intent
of Congress in enacting the Act is to be fulfilled. Such an
interpretation is in harmony with decisions of the Supreme
Court interpreting similar phrases to refer to the votes cast rather
than to the number of eligible voters (p. 177).
Following these cases the phrase, "majority of the employees,"
in the Act must be interpreted as meaning a majority of the
employees who participate in the election, so that the organiza-
tion receiving a majority of the votes cast is entitled to certifi-
cation. Such an interpretation is both consistent with the broad
declarations of the Act in favor of the procedure of collective
bargaining, since it facilitates the choice of representatives to
carry on that bargaining, and in accord with the general con-
cepts and court decisions concerning elections (pp. 177, 178).
In carrying out this principle of ascertaining the will of the
majority of the employees, the Board has in cases involving only
one ' labor organization directed that an election be conducted to
determine whether or not the employees desired that union to repre-
sent them. The ballot in such cases provides a space to vote for,
and a space to vote against, the named organization.
Similarly, in elections involving two or more rival unions, the
Board has provided for a space on the ballot in which a voter may
indicate that he does not desire either of the named unions to repre-
sent him.3 It is this space on the ballot, in which an employee is
given the opportunity to vote against both named organizations,
which is contemplated by the words "or by neither" appearing in
the Direction of Election in the present case. The motion to strike
B Matter of American France Line et at. and International Seamen '8 Union of America,
3N.L.R.B.64.
DECISIONS AND ORDERS 61
out these words is aimed at removing from the ballot any additional
space which allows the employees to vote against both organizations
and is intended to provide for a ballot with only two spaces, one
naming Steel Workers Organizing Committee for the Amalgamated
Association of Iron, Steel, and Tin Workers of North America,
Local No. 1657, affiliated with the C. I. 0., and the other naming
Employees Association of Interlake Iron Corporation.
It is obvious that with ballots of the type prescribed by the Board
a small number of employees voting "neither" may in some cases pre-
vent either of the designated unions from securing a majority. Coun-
sel for Steel Workers Organizing Committee argued that a minority
favoring neither union might, therefore, thwart the desires of a
vastly greater number of employees and that the Board's policy was
placing too much emphasis upon the rights of a minority.
The Act, however, does not require an unwilling majority of em-
ployees to -bargain through representatives. It merely guarantees
and protects that right of a majority if it chooses to exercise it. Yet
if the opportunity of voting against the organizations named on the
ballot were denied, a majority might be forced against its will to
accept representation by one or other of the nominees. The policy
adopted by the Board is designed merely to make sure that the votes
recorded for a particular representative express a free choice rather
than a choice in default of the possibility of expressing disapproval
of both or all proposed representatives. Anything which is incon-
sistent herewith in Matter of International Mercantile Marine Com-
pany et al. and International Union of Operating Engineers, Local
No. 3,4 is hereby expressly overruled. -
It was contended by counsel for Steel Workers Organizing Com-
mittee that the privilege of an employee to indicate that he does not
desire either of the named unions to represent him, if it must be
preserved, could also be expressed by refraining from voting or by
casting a blank ballot. In line with other authorities both before
and after 5 our decision, however, we indicated in Matter of R. C. A.
Manufacturing Company, Inc. (supra) that those not voting would
be presumed to acquiesce in the choice of the majority who do vote,
and thus the employee who does not desire to be represented by either
designated union would not express this preference by refraining
from voting. As to the solution of casting a blank ballot, the prac-
tice of the Board, again in line with other authorities," has been to
hold that a blank ballot is to be regarded as a failure to vote by one
qualified to do so. We see no advantage in forcing employees who
• 1 N. L. R. B. 384.
Vtirgmaan Railway Company v. System Federation No. 40, 300 U. S. 515, 57 S Ct. 592.
e The Association of Clerical Employees of the A T. d S F. Railway System at al. V.
Brotherhood of Railway and Steamship Clerks et al ., 85 F. (2d ) 152 (C. C. A. 7th, 1936).
62 NATIONAL LABOR RELATIONS BOARD
disapprove of the nominees to adopt the rather ambiguous method
of expression involved in casting a blank ballot, when their choice
can be clearly indicated by providing a space therefor.
For the reasons which we have outlined, it is the conclusion of the
Board that a free expression of the desires of the majority of the
employees in the unit found appropriate in the present case demands
that the ballot provide for a space in which employees may indicate
that they do not desire to be represented by either of the named
organizations. The motion to amend the Direction of Election by
striking therefrom the words "or by neither" is hereby denied.
In the event that the election in the present case results in none
of the three preferences obtaining a majority of the votes cast, we
will, upon the request of the labor organization receiving the greater
number of votes, promptly direct a run-off election in which the
ballot, will allow employees the opportunity to vote for or against
this organization.
Steel Workers Organizing Committee and Amalgamated Associa-
tion of Iron, Steel, and Tin Workers of North America, Local No.
1657, concluded their joint motion to delete the words "or by neither"
with the following statement :
And in the event this Honorable Board does not grant the
request of your petitioners as above set forth, the undersigned
respectfully request this Honorable Board to permit your peti-
tioners to withdraw or dismiss the petitions heretofore filed in
these proceedings, and that said election under said Direction of
Election be not held.
The petition filed by • Employees Association of Interlake Iron
Corporation on November 23, 1937, states that it is in response to
the request to amend the Direction of Election by striking therefrom
the words "or by neither" and joins in said request. No mention
is made of the further request that no election be held in the event
the amendment is not allowed, and instead the petition of Employees
Association prays that the election take place without further delay.
Since the original and amended petition for investigation and
certification of representatives names Employees Association of
Interlake Iron Corporation as another known labor organization
claiming to represent employees in the unit appropriate for collective
bargaining purposes, and this organization intervened and partici-
pated in the hearing, and, as evidenced by the present state of the
record, desires that an election be held, the motion to dismiss the
petition for certification and investigation and to vacate the Direc-
tion of Election is hereby denied.
On November 22, 1937, Employees Association of Interlake Iron
Corporation filed its petition requesting. that the Direction of Elec-
DECISIONS AND ORDERS 63
tion be amended by adding to those employees eligible to vote the
following: (a) Laboratory samplers paid on an hourly basis; (b)
Clerks in the plant 'paid on a monthly basis; (c) Weigh-masters
or scalers paid on a monthly basis; (d) Timekeepers paid on a
monthly basis; and (e) Homer E. Lynch, a utility man paid on a
monthly basis. The petition further prayed for an opportunity to
submit evidence relating to these employees, and also requested that
in the event no ruling concerning these employees was made by the
Board prior to the date of the election, that they be allowed to vote
under protest and thus cause no delay. On December 4, 1937, Steel
Workers Organizing Committee filed its objections to the granting of
these requests.
The Direction of Election of November 9, 1937, as-amended, was
issued for the purpose of securing the conduct of the election as soon
as possible, and although the Board did not at the same time
issue a decision embodying complete findings of fact and conclusions
of law; the Direction of Election set forth the Board's carefully con-
sidered conclusion relating to the employees constituting the unit
appropriate for collective bargaining. Employees Association of
Interlake Iron Corporation was represented by counsel throughout
the hearing held in this case and submitted evidence relating to the
appropriate unit and the employees to be included therein. The rec-
ord discloses that both labor organizations, together with Interlake
Iron Corporation, offered testimony concerning all the employees
appearing on the pay rolls and included material involving the em-
ployees which, the petition filed on November 22, 1937 contends,
should be added to the list of eligible voters. The petition sets forth
no facts which were not touched upon at the hearing. For these
reasons the motions presented by the petition of Employees Associa-
tion of Interlake Iron Corporation are hereby denied.
EDWIN S. SnrrTH, dissenting :
I fully appreciate the force of the argument that a majority, not
desiring representation by any labor organization named on a ballot,
should not be forced to be represented in collective bargaining by an
agency which is merely the majority choice of an actual minority of
employees participating in the election. This problem can be met,
however, without raising the other difficulties presented by the solu-
tion approved by the majority of the Board.
I would permit the "or by neither" place to continue to appear on
the ballot. I would provide, however, that 'unless the ballots marked
in this space constitute a majority of the ballots cast they should be
disregarded in tabulating the effective vote. * Under such an ar-
rangement these ballots would merely have filled the role of indicat-
ing to the Board that less than a majority of those voting do not
64 NATIONAL LABOR RELATIONS BOARD
desire to be represented by either labor organization. The wishes of
this minority should then properly be held ineffective to prevent a
choice of,representative by the majority of the, employees who desire
representation by one of the contending agencies.
If a majority of those casting ballots should mark their ballots
in, the "or by neither" space, no representatives should be certified.
Otherwise, the choice of a majority of employees voting in favor of
representation by one of the rival organizations should be declared
to be the 'representative of all.
The purpose of an election under the Act is to allay an existing con-
troversy over representation. The heart of that controversy in the
case before us is the wishes of the active partisans for either of the
candidates. It has already happened in the Board's experience with
the use of the "or by neither" place on the ballot ythat a minority of
a very few ballots so marked can destroy the bargaining choice of a
large majority of the employees who have voted for either one or the
other contending labor organization. To permit the continuance of
a, device which can produce such illogical results seems to me entirely
gratuitous, particularly when it does not appear to be required either
by the purposes or the wording of the Act.