International Harvester Co.

National Labor Relations Board - Board Decisions

Jul 27, 1951

95 N.L.R.B. 730 (N.L.R.B. 1951)

730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The Respondent , Celanese Corporation of America , has not engaged in
unfair labor practices as alleged in the complaint , within the meaning of Sec-
tion 8 ( a) (1), (3), and ( 5) of the Act.
Recommendations
0
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that the complaint be dismissed in its entirety.
INTERNATIONAL HARVESTER COMPANY, FOUNDRY DIVISION (Louis-
VILLE WORKS) and FALLS CITIES CARPENTERS DISTRICT COUNCIL,
THE UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA,
A. F. L., PETITIONER
INTERNATIONAL HARVESTER COMPANY and UNITED ELECTRICAL, RADIO
&, MACHINE WORKERS OF AMERICA (UE), PETITIONER. Cases Nos.
9-RC-1082 and 9-RC-1106. July 27, 1951
Decision and Direction of Elections
Upon petitions duly filed, a consolidated hearing was held before
William A. McGowan, 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 National Labor Relations Act.
2. The labor organizations involved' claim to represent certain
employees of the Employer.
3. The Employer and the UAW contend that a contract at present
in effect between them is a bar to this proceeding. The Carpenters
and the UE assert that such contract contains an unlawful union-
security clause and therefore cannot constitute a bar.
On January 5, 1950, the UAW was certified in a production and
maintenance unit at the Employer's plant. In February 1950, the
Employer and the UAW signed a contract which terminated on Au-
gust 23, 1950. On July 10, 1950, after an election conducted pursuant
to Section 9 (e) (1) of the Act, the Board certified that -the UAW
was authorized to make an agreement with the Employer requiring
membership in such organization as a condition of employment, in
conformity with Section 8 (a) (3) of the Act. On November 6, 1950,
i Petitioner In Case No. 9-RC-1082 will be referred to herein as the Carpenters. Peti-
tioner in Case No. 9-RC-1106 will be called the UE. The International Union, United
Automobile, Aircraft and Agricultural Implement Workers of America, CIO, Intervenor in
both cases, will be referred to as the UAW.
95 NLRB No. 80.
INTERNATIONAL E ARVESTER COMPANY 731
the Employer and the UAW entered into a contract having a termina-
tion date of August 23, 1955. The validity of the union-security
provision in this contract is in question. This provision is as follows :
Any employee in the bargaining unit who is a member of the
Union in good standing on the effective date of Sub-sections (a)
to (f) inclusive of this Section 1, as to'such bargaining unit shall
be required, as a condition of continuing employment with the
Company, to maintain his membership in the Union to the extent
of current monthly Union dues, general assessments and initiation
fees, if any,'commencing on the thirtieth- (30th) day following the
effective date of Sub-sections (a), to (f) inclusive?
The asserted vice of this provision is that it requires as a condition
of continuing employment the payment to the UAW of general assess-
ni nts levied by that organization. The UE and the Carpenters con-
tend that such a requirement- goes beyond the permissive language of
the second proviso to Section 8 (a) (3) of the amended Act. That
proviso states that no employer shall 'ustify any discrimination
against an employee for nonmembership in a labor organization "if
,he has reasonable grounds for believing that membership was denied
or terminated- 1-or reasons other than the failure of the employee to
tender the periodic dues and the ihitiatioir fees uniformly required
as a condition of acquiring,or 'retaining nmember'ship." The question
raised is whether or,,not the general assessments providedfor in the
Employer-UAW contract are encompassed within the term "periodic
dues" as used in this section. We believe't'hat they are not..
The constitution -of the UAW, entered as an exhibit in this case,
provides that assessments may be levied in the following ways: s (1)
By the executive board of the International acting independently,
up to 1 dollar per member annually; (2) by the local unions, in
certain situations and under specified conditions; and (3) by the.execu-
tive board with-the.-approval of a majority of all the union members,.
in any amount and at any time. Under each, of the methods, the time
and amount of the assessment are variable and not a matter of certain
prediction. A standard. dictionary defines periodic in 'its principal
meaning as "Characterized by periods, occurring at regular stated
times , acting, happening or appearing at fixed intervals." 4 The assess-
ments provided for in the contract do not appear to contain any ele-
ment of regularity or periodicity. In these circumstances we fail to
see any support for the contention that such assessments are included
within the phrase "periodic dues" as enacted by Congress in 1947..
2 The quoted provision refers only to employees then members of the UAW. However,
other clauses in the contract impose similar requirements on employees who thereafter
become members and also on new employees.
Although the contract does not explicitly state that the assessments provided for therein
are those referred to in the UAW constitution , we assume that such is the case.
Webster 's Dictionary (Second Edition Unabridged).
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, the UAW and the Employer assert that the purpose of
Section 8 (a) (3) (B) of the Act is-to prohibit the use of the device
of nonuniform membership charges as a means of penalizing union
members; they argue that Congress was seeking to eliminate dis-
crimination among union members. Therefore it is contended that
because the contract here in question specifically provides that the
assessments shall be levied uniformly among all members,5 the intent
of Congress is satisfied.. -
While it is true that Congress certainly meant to prohibit discrimi-
nation among employees based on nonuniform union membership
charges, the legislative history of the Act reveals that Congress also
desired to eliminate nonpayment of assessments, even though uni-
formly levied, as a basis for such discrimination. This is particularly
evident in the 1947 legislative discussions of the Cecil B. De Mille
case. In that case the union to which De. Mille belonged had levied
a 1 dollar assessment on each member to raise a fund to fight a
proposed anticlosed-shop law in California. Because De Mille refused
to :pay the assessment , he was expelled from the union and had to
give up, his job producing a radio program. - This evoked much com-
ment during the discussions in Congress leading up to .the passage of -
the amended Act. Among them was the following significant state-
ment by Senator Ellender, who was an active member of the labor
committee in support- of the Senate Bill :
'.One of the cases was that of Cecil B. De Mille, who, as we know,
is a producer of motion pictures on the west coast. He is also a
radio commentator. Mr. De Mille was forced to join a union'in
order to be able to appear on the radio. Soon after he joined the
union, he was asked to make a contribution to a cause in which he
did not believe:
He refused to make such a contribution. Then what happened?
The union kicked him out; it said, "We do not want you as a mem-'
ber any more." Up to this moment, Mr. President, Mr. De Mille
has not been able to make any further broadcasts on the radio,
simply because he violated the rules of the union to which he
belonged. • Now here was a man called upon to put up a contribu-
tion to fight a cause in which he did not believe and because he
refused to pay the assessment made on him, he was kicked around
and is now unable to pursue his work. . Such a situation is intoler-
able and must be corrected. The pending measure as I will show
better corrects such. an evil .6
5 Article V, Section 1' (f) of the contract states : -
The term "general' assessments" as used in' this Section shall mean assessments
uniformly levied by the International Union and/or the Local Union against an'mem-
bers, notice of which shall have been given to the Company.
93 Cong. Rec. 4258,; 2 Leg. Hist.1081.
INTERNATIONAL HARVESTER COMPANY 733
Senator Ellender then went on to say that the union-shop provisions
of the Senate Bill 7 would prevent a union from causing the discharge
of an employee as the union had done in the De Mille case. Other
Senators also deplored that incident and indicated a desire to prevent
such occurrences in the future. It is important to note that the assess-
ment in the De Mille case was not discriminatory; that is, it was
uniformly required of all members. Hence, it appears that Congress
intended to eliminate the nonpayment of assessments, as such, as a
basis for discharge of employees. It is our duty to follow that intent.
The Employer and the UAW refer the Board to an opinion of the
Department of Justice interpreting the term "membership dues" as it
appears in Section 302 of the Act to include assessments as well as
regular dues.s While the Board, of course, is not bound in its adminis-
tration of the Act by the interpretation of the Department of Justice,
the Board has always deemed it proper in the interest of consistent and
orderly administration to give due weight to the considered opinion
of a sister agency. However, the clause in Section 302 interpreted by
the Department of Justice to include assessments contains different
language and has a different purpose from that used' by Congress in
Section 8 (a). (3) (B), with which we are here solely concerned: Here;
the words to be construed are "periodic dues"; there they were "mem-
bership dues." The latter term' is more susceptible' of a brbadth in=
terpretation. Under Section 8(a) (3) (B),Congiess' waslegisl'ating
with regard to a collective bargaining agreement making mandatory
the payment of periodic dues as a -condition of -employment: Under
Section 302 the term'"membership dues" embraces those union charges
that may legally be included in'the checkoff provisions of a contract,
where the checkoff cannot be' 'effect'ive as, to any- individual `employee
unless specifically and voluntarily authorized iii' writing by that em-
ployee. For these reasons we do not believe that the cited opinion of
the Department of Justice can be controlling.
Finally, the UAW and the Employer assert that if the Board finds
this.contractnot-to be a bar, it will "disturb a great .body: of American
labor-management contracts" containing similar provisions.. ;How-
.ever, it,must not be forgotten that, as the agency designated for;that
purpose, this Board has the duty to administer the Act in accordance
with the letter of the Act and the evident intent of the Congress that
T S. 1126. The applicable provision of this bill was almost identical with Section 8 (a)
(3) (B) as finally passed.
8 That opinion appears in a letter from the Assistant Attorney General to the Assistant
Solicitor General dated May 13, 1948. The section of the Act discussed , Section 302, makes
it a misdemeanor for any employer to make payments to the representative of any
employees , or for the representative to receive such payments , and then goes onto state:
(c) The provisions . of this section shall not be applicable . (4) with respect to
money deducted from the wages of employees in payment of membership dues in a
labor organization.
734 DECISIONS `OF: NATIONAL " LABOR RELATIONS BOARD
passed it . The only possible interpretation of that intent, based upon
legislative history , leads us to the conclusion that the assessments in-
volved in this case are not encompassed within the term "periodic dues"
as used in Section 8 (a) (3) of the Act.
As the contract contains an illegal union -security clause we find that'
it cannot constitute a bar to these proceedings .e, Accordingly, we find
that a question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act 1°
4. The appropriate units :
Case No. 9-RC-1106
In this case the UE seeks a unit composed of all production.em-
ployees at the Employer's plant and would exclude all maintenance
'employees. As an alternative, the UE' would accept an over-all pro-
duction and maintenance unit with certain exclusions. The UAW
contends that the latter unit, corresponding to its present contractual
unit, is alone appropriate. That contractual unit is the same as the
unit previously, found appropriate by the Board 11 in which the UAW
was certified on January 5, 1950, except for the exclusion in the con-
tract of craft groups for whom bargaining representatives were sub-
sequently certified by the Board. The UE has .not presented any
reasons to warrant a departure from the Board's usual practice of
including production and maintenance employees in one unit. We
therefore find such. a unit to be appropriate in this case. However,
as we shall direct "Globe" elections among the employees concerned in
the other of these consolidated cases, the actual composition of the
production and maintenance unit in this case will await. the results
of those elections. %
Case No. .9-RC-1082
The Carpenters petitioned for a unit composed of millwrights, so-
called millwright welders, apprentices-and helpers, and repairmen, all
'working in the Employer' s maintenance department . Most of these
0. Hager c6 Sons Hinge Manufacturing Company, 80 NLRB 163.
10 The Employer also takes the position with reference to the petition in Case No. 9-RC-
1082 that Section 9 ( c) (3) requires that the petition be dismissed as untimely , in that it
was filed less than 1 year after the UAW was certified as the bargaining representative in
this unit . Section 9 ( c) (3) provides that "no election shall be directed in any bargaining
unit or any subdivision within which, in the preceding twelve-month period, a valid election
shall have been held ." The runoff election as a result of which the UAW was certified
N was held on November 22, 1949 . It is now over a year since then ; moreover more than a
year had elapsed at the time each of the petitions was filed in this case. Consequently we
And no merit in the Employer's contention. General Electric Company, 89 NLRB 726.
u International Harvester Company, Louisville Works, 85 NLRB 1310.
INTERNATIONAL HARVESTER COMPANY 735
employees are in. the category of repairmen, sometimes referred to as
maintenance machinists. The job of repairmen is to diagnose trou-
ble in machinery and equipment, repair it; and, when necessary, re-
pair or make parts. The millwrights do the usual work of their
trade, setting up machinery, building foundations for it, making the
necessary rigging, assembling the machinery, and preparing it for
operation. As the employees in these two groups do highly skilled
work of a craft nature iii connection with machinery and equipment
and as they work in conjunction with each other, we find that they
may jointly comprise an appropriate unit which may be severed.
from the production and maintenance unit if they so desire.12
The welders, who are maintenance welders as distinguished from
the Employer's production welders, perform their duties throughout.
the plant on machinery and equipment and also on structural steel,.
and overhead construction. They do both are .and gas welding. It
appears that part of their work is..done in aid of the work of the mill-
wrights and the repairmen. However, the record does not show that
the maintenance welders are regularly assigned to the millwrights and
repairmen. The Board has recently held that maintenance welders
constitute an identifiable craft group who may compose a separate
bargaining unit if they' so desire.13 Accordingly, we will set up the-
maintenance welders in a separate voting group to ascertain whether
they desire to be represented for the purposes of collective bargaining:
as a separate unit or as part of the production and maintenance unit..
We shall direct elections among the following groups of employees
at the Employer's plant :
Group No. 1-All production and maintenance employees in the
foundry at the Louisville Works of the Employer, including the cab
crane operators ; but excluding the employees in voting groups 2 and
3, and also excluding all maintenance electricians ('including the
helpers and the industrial truck repairmen who do electrical work in
the garage and their helpers), all pipe fitters and pipe fitter helpers,''
all employees of the Pattern Shop,15 guards, professional employees,.
and supervisors as defined in the Act.
Group No. 2-All millwrights, repairmen, apprentices and helpers,.
excluding office clericals, guards, and .supervisors as defined in the°
Act.
12 A. C. Spark Plug Division, General Motors Corporation ( Milwaukee Plant ), 88 NLRB
1214.
Is International Paper Company, Southern Kraft Division , (Rayon Plant), 94 NLRB 500';
International Paper Company, Southern Kraft Division, 94 NLRB 483.
14 The. excluded maintenance electricians and pipe fitters are those found to constitute
separate appropriate units in International Harvester Company, 88 NLRB 214 , and for
whom bargaining , representatives were subsequently certified.
25 A bargaining representative was certified for these patternmakers in Case No : 9 -RC=430'_
736 DECISIONS OF NATIONAL. ,LABOR .RELATIONS BOARD
Group No.. 3=All maintenance welders, including apprentices and
helpers, excluding office clericals, guards, and supervisors as defined in
the Act.
[Text of Direction of Elections omitted from publication in this
volume.]
THE TIMKEN-DETROIT AXLE COMPANY wind INTERNATIONAL UNION,
UNITED AUTOMOBILE, AIRCRAFT AND., AGRICULTURAL IMPLEMENT
WORKERS - OF AMERICA, LOCAL 174, CIO,, PETITIONER. Case No.
7-RC-1223. July 27, 1951
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 George A. Sweeney,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-mem-
ber panel [Chairman Herzog and Members Murdock and Styles].
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 certain em-
ployees of the Employer.
3. A question affecting commerce exists. concerning the representa-
tion of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act.
.4- The appropriate unit:
The parties agree generally that the appropriate unit should con-
sist of all office and clerical employees employed- at the Employer's
Detroit, Michigan, offices.' They, are, in disagreement, however, as
to the inclusion of switchboard, operators and certain other specific
categories of employees discussed below. The Employer takes the
position that the switchboard operators should be excluded as con-
fidential employees and that the remaining disputed categories of
employees should be included. The Petitioner contends that the
switchboard operators are properly' included in an office and clerical
unit and that the other, categories ofemployees should be excluded
.as either professional or technical employees.
The categories of employees whom tiie -parties agreed to include or exclude are listed
below.
95 NLRB No. 81. .