Jefferson City Cabinet Co.

National Labor Relations Board - Board Decisions

Apr 8, 1958

120 N.L.R.B. 327 (N.L.R.B. 1958)

JEFFERSON CITY CABINET CO . 327
unit, as well as the unit set forth in the contract, excludes tech-
nicians.13
In addition, the Employer asserts that it has groups of technical
employees who are not represented, including "employees who assist
professional engineers in the mathematical field . . . employees work-
ing in the field of chemistry, metallurgy, hydraulics, electricity,
nuclear energy, and various fields of that type. . . ." Although these
groups were not further identified, and the record does not establish
that all of them are technical employees as defined by the Board, the
Petitioner did not claim that the employees here involved were the
only unrepresented technical employees, and it seems clear, from the
entire record, that inclusion of the category here sought would leave
other technical employees unrepresented. The Board will not include
in any bargaining unit only a segment of the technical employees in
an operation.14 The Board likewise will not include such employees
in a production and maintenance unit where, as the Employer did
here, any party makes a timely objection to the inclusion of such
employees." The circumstances that when the operation here involved
was first established on an experimental basis, the original employees
were transferred from a production department, and temporarily
retained their production unit status, cannot alter these well-estab-
lished Board policies.
For the foregoing reasons , we find that the laboratory electronics
technicians A working in the Employer's aerophysics laboratory are
not included in the unit of which the Petitioner is the certified collec-
tive-bargaining representative." We shall therefore deny the Peti-
tioner's motion for clarification which requested such inclusion.
[The Board denied the motion for clarification.]
18 See General Electric Company, 119 NLRB 1233.
1{ Allied Chemical & Dye Corporation, 120 NLRB 68 ; Chapman Valve Manufacturing
Company, 119 NLRB 935 ; General Electric Company, supra ; Solar Aircraft Co., 116
NLRB 200, 202.
18 General Electric Company. supra ; American Potash & Chemical Corporation, 117
NLRB 542, 544.
18 The foregoing is not to be taken as a new certification.
Jefferson City Cabinet Co. and Local Union No . 2839, United
Brotherhood of Carpenters and Joiners of America , AFL-CIO,
Petitioner. Case No. 10-RC-3935. April 8, 1958
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 Hugh Frank Malone,
120 NLRB No. 53.
:328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 organizations involved claim to represent certain
employees of the Employer?
3. Shortly after the petition herein was filed by the officers of
Local 2839, a "Supervisor" (trustee) over that Local was appointed
by the International. The Supervisor thereupon suspended the
Local officers I and appointed new Local officers. Prior to the issuance
of the notice of hearing herein, withdrawal requests were filed with
the Board's Regional Office by the Supervisor and jointly by the
appointed president and secretary-treasurer in the name of the Local.
The Regional Director took no action with respect to the Supervisor's
withdrawal request, and that of the appointed officers was referred
to the Board by the hearing officer as a motion to dismiss. In addi-
tion, during the hearing the International moved for dismissal of the
petition 4 These requests for withdrawal and dismissal were made
1 United Brotherhood of Carpenters and Joiners of America , AFL-CIO, hereinafter
referred to as the International , was permitted to intervene over objections of the
Petitioner , hereinafter referred to as Local 2839 , and of International Union of Electrical
Radio & Machine Workers, AFL-CIO, hereinafter referred to as the IUE Those objections
-were grounded on the failure of the International to make a showing of interest among
the employees involved herein We find such objections without merit , inasmuch as the
International has placed Local 2839 under its supervisorship and particularly in view of
the dispute between Local 2839 and the International , which is discussed more fully below.
The International requested that the Board reconsider its General Box Company decision
(82 NLRB 678 ), which permits the filing of a petition by a contracting union during its
contract term to secure the benefits of certification . This request is denied . The Inter-
national took the alternative position, with which Local 2839 agreed, that where a petition
is filed as permitted by General Box, the case is not open to intervention by a rival union.
They therefore opposed the intervention of the IUE, and Local 2839 also opposed inter-
vention by International Brotherhood of Electrical Workers Local Union No . 760, AFL-
CIO, hereinafter referred to as the IBEW . However, a union may not raise a question of
representation during its contract term and at the same time assert its contract as a bar
to intervention by a rival union . Dongan Electric Mfg Co., 116 NLRB 1440 , footnote 3,
and cases cited therein . The hearing officer therefore properly permitted the IUE and
the IBEW to intervene.
2 The parties stipulated that the IBEW is a labor organization within the meaning of
the Act but did not so stipulate as to the other participating unions The record shows
that Local 2839, the International , and the IIIE exist for the purpose of dealing with
employers , on behalf of their members , concerning grievances , labor disputes, wages, rates
of pay, hours of employment , and other conditions of work. We find, therefore, that
Local 2839 , the International , and the IIIE are labor organizations within the meaning
of Section 2 (5) of the Act . Nyman-Gordon Co ., Ingalls Shepard Division, 117 NLRB 75.
3In order to distinguish between the opposing Local officers herein, the original slate is
referred to hereinafter as the elected officers and the new slate is referred to as the
appointed officers.
b The initial - basis on which dismissal is requested is that there is a fatal defect in the
petition 's execution because the form was signed in blank by the recording secretary and
therefore the declaration as to the truth of the statements contained therein is false. It
is undisputed that the petition forms were signed in blank after ' all the elected officers
had authorized the recording secretary , in writing , to petition the Board for 'certification.
On the next working day, the elected president and the Local's attorney visited the
Board's Regional Office . The necessary information was inserted in the previously signed
forms during that visit . At that time the president 's name was typed at the bottom of
JEFFERSON CITY CABINET CO. 329
on the ground that the elected officers had been replaced and were
without authority to maintain the petition. The elected officers, on
the other hand, contend that the appointments of the Supervisor and
of the appointed officers were not in accordance with the provisions
of the International's constitution and that therefore they are not
authorized to act on behalf of the Local. The Employer supports
the position of the International, whereas the IUE supports the
position of the elected officers.
The background of this dispute is as follows :
On August 4, 1956, shortly after the Employer began its opera-
tions at the plant involved, the Employer and Local 2839 executed
a collective-bargaining agreement, retroactive to June 1, 1956, and
effective until May 31, 1961. No board election or certification pre-
ceded the recognition of Local 2839. The International is not a
party to that contract.
From the beginning of its contractual relationship, the Local evi-
dently experienced considerable difficulty in securing the support of
the employees in the unit. As a result, the elected officers, over a
period of about 8 months preceding the filing of this petition, dis-
cussed the advisability of seeking Board certification, and it is clear
that they believed they were acting on the suggestion of the Inter-
national in filing the representation petition.
There is no question but that the elected officers, as such officers,
had the authority to file the petition at the time they took that action.
Moreover, on the evening of the date on which the petition was filed,.
a special membership meeting was held at which the officers reported
the step taken and stated that if the membership did not approve
the action, the petition would be withdrawn. The vote on that ques-
tion resulted in unanimous approval by the membership of the main-
tenance of the petition. No subsequent vote of the membership was
taken on this question.
Shortly after the petition was filed, the International, upon noti-
fication by the Employer of such filing, placed the Local under
supervisorship. The reasons asserted therefor are (1) that there
was a rumor that the Local was about to strike in violation of the
no-strike clause of the existing contract, and (2) that there had been
"common talk" in the community that the elected officers were meet-
ing with IUE representatives. The elected officers dispute the truth
the form, in his presence , and he was prepared to sign it . However , the field examiner
informed him that this was unnecessary , inasmuch as it was already signed We find no
merit in the contention that the execution of the petition was fatally defective . General
Electric Company Appliance Service Center , 96 NLRB 566 . Moreover, even if the signa-
ture was affixed improperly , the Board agent was responsible for the failure of the Local
president to sign the form after its completion . We have frequently held , under analogous
circumstances , that it would be unfair to penalize a petitioner for acting on the Board
agent 's advice See , e. g, Montgomery Ward & Go, 118 NLRB 310; Natvar Corporation,
109 NLRB 1278
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of these reasons . As to ( 1), it is uncontradicted that representa-
tives of the International participated in whatever strike discussion
did take place ; as to (2), the evidence consists merely of testimony
by representatives of the International that reports to this effect had
been received.5
With respect to the withdrawal requests by the Supervisor and
the appointed officers , it is clear that a resolution of the contention
that their appoinments were invalid would require the interpreta-
tion and application of the provisions of the International 's consti-
tution. However , this is an internal union matter into which the
Board will not inject itself .6 Therefore , we specifically do not make
such a determination and, in accordance with our usual practice, will
not interfere here with the right of the parent to control its local.
We accept, for purposes of this decision , the International 's position
that the appointments were validly made under the provisions of its
constitution and that the appointed officials are the current repre-
sentatives of the petitioning Local with full authority to act for that
Local.
The only question before us , therefore, is whether the Petitioner
herein should be permitted to withdraw its petition . While the
Board traditionally permits the withdrawal of a representation peti-
tion in the absence of a showing that prejudice will result,' the Board
may, in the exercise of its administrative discretion , deny such a
request . Exercising such discretion, we believe that under the pe--
culiar circumstances of this case the Act will be best effectuated by
the conduct of an election among the employees in the unit herein-
after found appropriate."
The International 's motion for dismissal of the petition must be
denied, since the International is not the party which filed the peti-
tions In addition , it is not a party to the bargaining relationship
between the Employer and Local 2839.
8 Although an IIIE representative appeared at the attorney's office at the time the
elected officers executed the written authorization to file the petition and that representa-
tive assisted the attorney in phrasing the authorization , the weight of the evidence is to
the effect that his appearance at that time was unexpected. We do not believe that his
participation in the drafting of the authorization is a sufficient basis for finding that the
elected officers were acting in collusion with the IUE in filing the petition , since there is
no evidence that the IIIE instigated the petition . Cf. Armco Drainage & Metal Products,
Inc., 116 NLRB 1260 ; Southeast Ohio Egg Producers , 116 NLRB 1076. It may be noted,
further , that the attorney who was consulted on that occasion did not represent Local
2839 in this proceeding and is not alleged to have acted for Local 2839 or for any other
labor organization at any other time
6 See, e g., The Texas Company, Port Arthur Works and Port Arthur Terminal, 112
NLRB 169 , and Pollock Paper Corporation ( Waterproof-Ohio Division ), 115 NLRB 231.
7 Underwriters Salvage Company of New York, 76 NLRB 601.
e Unlike our dissenting colleagues , we do not construe our decision in this case to en-
graft any condition upon the processing of representation petitions under the General Box
rule. Rather , we have specifically relied only upon the facts of this case and intend to
limit our decision to these facts.
9 Dryden Rubber Division , Sheller Manufacturing Corporation, 110 NLRB 1652. See
Section 101 .17 (b) of the Board 's Statements of Procedure.
JEFFERSON CITY CABINET CO. 331
Accordingly, we deny the International's motion for dismissal and
the Supervisor's and appointed officers' requests for withdrawal of
the petition, and find that a question affecting commerce exists con-
cerning the representation of employees of the Employer within the
meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. In accordance with the stipulation of the parties, we find that
all production and maintenance employees at the Employer's Jefferson
City, Tennessee, manufacturing plant, excluding all professional,
technical, and clerical employees, supervisors as defined in the Act
and other management personnel, plant guards, and over-the-road
truckdrivers, constitute an appropriate unit for the purposes of col-
lective bargaining within the meaning of Section 9 (b) of the Act.
[Text of Direction of Election omitted from publication.]
MEMBERS RODGERS and FANNING, dissenting :
We would permit the withdrawal of the petition. There is no
doubt that the petition was filed by the proper constituent authority
of Local 2839. Neither is there any doubt that had that authority
remained in office, it could have withdrawn its petition at any time
prior to election. We believe that the right to withdraw the petition
necessarily and logically devolves upon the Supervisor and other
appointed officers, since they are in fact and law the present and only
constituent authority of Local 2839.
Unlike the majority, we perceive no unusual or peculiar circum-
stance which justifies this agency's intervention in the internal affairs
of the labor organization, to the extent of overturning its established
constitutional procedures and requiring it to jeopardize its protected
status by forcing it to an election which it does not want, which the
law does not command, and which both precedent and policy dictate
should not be held.
The Board has long held that a petition by a recognized union to
gain the benefits of certification raises a question of representation.10
By its decision here the majority has engrafted upon this rule a
condition not otherwise imposed in the processing of our representa-
tion petitions. Thus we interpret the decision to hold that henceforth
when a petition is filed as permitted by General Box it is not governed
by the traditional policy of the Board which permits its withdrawal
in the absence of a showing that prejudice will result." Because such
an impediment would work unnecessary hardship upon a recognized
labor organization and unduly prejudice it in the contractual rela-
tions it already enjoys, we would not promulgate such an exception
and would grant the request to withdraw this petition.
w General Boa Co., 82 NLRB 678.
21 Underwriter8 Salvage Company of New York, supra.