R. G. LeTourneau, Inc.

National Labor Relations Board - Board Decisions

Nov 7, 1941

36 N.L.R.B. 774 (N.L.R.B. 1941)

In the Matter of R. G. LETOURNEAU, INC. and INDEPENDENT
INDUSTRIAL WORKERS' UNION
Case No. R-3911-Decided November 7, 1941
Jurisdiction : heavy grading equipment manufacturing industry.
Investigation and Certification of Representatives
Held that no question concerning representation has arisen , where peti-
tioning union was found to be a successor to a company-dominated union
which the Board, in an earlier proceeding, had ordered disestablished, and
where the intervening union did not desire an election.
Practice and Procedure : petition dismissed.
Mr. Stephen M. Reynolds, for the Board.
Miller, Westervelt, Johnson cC Guenther, by Mr. Donald G. Beste,
of Peoria, Ill., for the Company.
Mr. E. V. Champion, of Peoria, Ill., for the I. I. W. U.
Mr. Glenn Bullock, of Kewanee, Ill., and Mr. Joe Wilke, of Peoria,
Ill., for the Brotherhood.
Miss Mary E. Perkins, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
On February 7, 1941, Independent Industrial Workers' Union,
herein called the I. I. W. U., filed with the Regional Director for
the Thirteenth Region (Chicago, I11-inois)-,a..petition, and on Febru-
ary 25, 1941, an amended petition, alleging that a question affecting
commerce had arisen concerning the representation of employees of
R. G. LeTourneau, Inc., Peoria, Illinois, herein called the Company,
and requesting an investigation and certification of representatives
pursuant to Section 9 (c) of the National Labor Relations Act, 49
Stat. 449, herein called the Act. On July 21, 1941, the National
Labor Relations Board, herein called the Board, acting pursuant to
Section 9 (c) of the Act, and Article III, Section 3, of National
Labor Relations Board Rules and Regulations-Series 2, as amended,
ordered an investigation and authorized the Regional Director to
36 N. L. R. B., No. 160.
774
R. G. LETOURNEAU, INC. 775
conduct it and to provide for an appropriate hearing upon due
notice. On July 31, 1941, the Regional Director issued a notice of
hearing, copies of which were duly served upon the Company, the
I. I. W. U., and International Brotherhood of Boiler Makers, Iron
Ship Builders, Welders and Helpers of America, Local Union No..
158, herein called the Brotherhood, a labor organization claiming to
represent' employees directly affected by the investigation: In the
order directing investigation, the Board further ordered that evi-
dence be received on the issue of whether the I. I. W. U. is a successor
or continuation of LeTourneau Employees Union, herein called the
L. E. U., heretofore ordered disestablished by the Board., Notice
that such evidence would be received was included in the notice of
hearing.
Pursuant to notice, a hearing was held on August 21 and 22, 1941,
at Peoria, Illinois, before Gustaf B. Erickson, the Trial Examiner
duly designated by the Chief Trial Examiner. The Board, the Com-
pany, the I. I. W. U., and the Brotherhood were represented by coun-
sel, and, participated in the hearing. Full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence bear-
ing on the issues was afforded all parties. During the course of the
hearing the Trial Examiner made. several 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.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY.
R. G. LeTourneau, Inc., is a corporation _ organized and existing
under the laws of the State of California, having its principal office
and place of -business in the city of Peoria,- Illinois.
The Company operates plants in Peoria, Illinois, and in Stocktgn,
California, where it is engaged in the manufacture, sale, and distri-
bution of heavy grading equipment. During 1940 the Company pur-
chased for use in its operations at its Peoria plant raw materials
'In Matter of It, G . LeTourneau , Inc. and International Brotherhood of Boiler Makers,
Iron Ship Builders , Welders and - Helpers of America, Local No. 158, and LeTourneais
Employees Union , party to the contract , 29 N. L . R. B., No . 141, herein called the complaint
case , the Board , pursuant to a.stipulation signed by the Company , the LEU, the Brother-
hood, which filed the charges in that case . and an attorney for the Board , ordered the
Company ,- among other things, to cease and desist from dominating or interfering with
the administration of the LEU and to withdraw and withhold from the LEU, or any
successor organization thereto , all recognition as representative of its employees and com-
pletely disestablish the LEU as such representative . Pursuant to the stipulation, a
decree enforcing the Board 's order was entered by the United States Circuit Court of Appeals
for the Seventh Circuit on April 8, 1941.
766 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD
consisting of sheet steel, iron, copper, lumber, and other materials
.valued at approximately $2,800,000. Of this amount about $2,600,000
represented materials purchased and shipped to the plant from points
outside the State of Illinois. During the same period the Company
manufactured at its Peoria plant finished products which were sold
for approximately $9,700,000. Of this amount approximately $9,474,-
000 represented sales and shipments to points outside the State of
Illinois and to foreign countries.
II. THE ORGANIZATIONS INVOLVED
Independent Industrial Workers' Union is an unaffiliated labor
organization admitting to membership employees of the Company.
International Brotherhood of Boiler Makers, Iron Ship Builders,
Welders and Helpers of America, Local Union No. 158, is a labor
organization, affiliated with the American Federation of Labor, and
admits to membership employees of the Company.
III. THE ALLEGED QUESTION CONCERNING REPRESENTATION
As stated above, the Board on July 21, 1941, ordered that, in addi-
tion to the usual investigation, evidence be received in this proceed-
ing on the issue of whether the petitioner, the I. I. W. U., is a suc-
cessor or continuation of the L. E. U., the organization ordered
disestablished by the Board in the complaint case. We turn first to a
consideration of the evidence bearing upon this issue.
On January 24, 1941, the stipulation in settlement of the com-
plaint case was signed. That evening Marion Shepard, Orville
Frank, and Clyde Clair, all of whom were recently elected members
of the executive committee of the L. E. U., -met with Carl Stone,
president of the L. E. U.,2 at the latter's house and discussed the
possibility of forming a new unaffiliated union of the Company's
employees. Late that evening they called into their conference Owen
Gillis, an employee and nephew by marriage of R. G. LeTourneau,
the president of the Company, and at his suggestion consulted with
Theodore Baer, a local attorney, as to the steps they should follow.
Baer agreed to help them establish a new union, and the group made
plans for securing applications. A meeting of the membership of
the L. E. U. had previously been scheduled for the afternoon of the
following day, January 25, at the Majestic Theatre in Peoria, and
notices to this effect had been posted in the plant for several days.
'Application cards for the new union were drawn up on the night
of January 24 in the following form :
Stone signed the January 24 stipulation for the L. E. U.
R. G. LETOURNEAU, INC.
INDEPENDENT INDUSTRIAL WORKERS' UNION
777
I hereby join the Independent Industrial Workers' Union, or-
ganized at a special meeting of R. G. LeTourneau Company
employees held at the Majestic Theatre on Saturday, January
25, 1941, and I hereby designate said Independent Industrial
Workers' Union as my sole bargaining agent in regard to wages
and working conditions at the Peoria Manufacturing plant of
said Company.
Signed------------------------------
Baer, through a personal friend, arranged that.night for the cards
to be printed the next morning. According to Shepard, the costs
were borne by the officers of the L. E. U. personally.
On the afternoon of January 25, the L. E. U. meeting took place
as scheduled, at the Theatre.3 Stone presided. He announced to the
members that distressing "conditions" had been disclosed concerning
the L. E. U.; that he and certain others had just previously dis-
covered that "money had changed hands" between the Company and
some officers of the L. E. U.; that a hearing had been scheduled
before the Board ,4 but that it would not be of any use for the L: E. U.
to go into the hearing; that the "conditions stank"; and that the
L. E. U. should be dissolved. There is no evidence that Stone told
the employees about the stipulation signed the day before, providing
for the entry of an order by the Board disestablishing the L. E. U.
Thereafter, without any discussion of which mention appears in the
record, a motion was made and carried that the L. E. U. disband,
and the meeting was declared by Stone to be adjourned. Stone then
went off the stage for a few moments. to consult with McGrath, a
second attorney who had been called in by Baer to attend the meet-
ing. Thereafter, he returned and, according to the minutes of the
I. I. W. U., called the meeting to order and suggested. that McGrath
take . the, chair until a temporary chairman could be appointed.
$ The Secretary of the L. E. U. had arranged for rental of the Theatre prior to January
25, and paid $35.00 for its use for the whole afternoon. No one approached the manage-
ment of the Theatre on behalf of the I. I. W. U. separately, before the meeting, although
Shepard, one of the five who planned the new organization, claimed that he attempted to
pay the manager one-half of the rental after the meeting, and was told by the latter that
the hall was paid for until 6 :00 p. in., and that the management would not accept any more
money for it. The I. I. W. U. introduced in evidence a che( k of the Union datc d July 16,
1941 , for $17.50, drawn to the manager of the Theatre and by him endorsed to "Treasurer
H. A. Blume of the LeTourneau Employees Union for the rental of the Majestic Theatre
on Saturday afternoon January 25, 1941." The check was not cashed' until August 1,
the day notice of hearing herein was served upon the parties.
The "proper way" of admission to the meeting was by displaying an L. E. U. membership
card. although it is clear that in some cases, at least, this procedure was not observed.
4 This hearing in the complaint case was originally scheduled for January 18, 1941 ; on
January 8 the Regional Director ordered it continued to January 27.
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McGrath spoke for a few moments and presided while Stone was
elected temporary chairman, whereupon the latter took the chair and
presided for the rest of the meeting. Stone, as well as McGrath,
urged the formation of a new union, and a motion that the I. I. W. U.
be. formed was made and carried. Meanwhile the new application
cards were being passed out, with the statement by Stone that there
was no compulsion on those present to sign them.5 Stone was elected
temporary president, and was authorized to appoint temporary offi-
certs.e Stone thereupon appointed a temporary executive committee
of 10 men, constituted in the main like that of the L. E. U., of the
4 officers, 3 "day grievance men" and 3 "night grievance men." I
Shepard, Frank, and Clair, who had aided him the night before and
who had been the three "night grievance men" for the L. E. U., he
appointed to the same positions; he appointed Gillis, LeTourneau's
nephew, as vice president; and Eitzen, L. E. U. vice president, as
one of the three "day grievance men." Nominations were then made
for permanent officers, and a meeting was set for February 1.
During the next week the committee appointed by Stone drew up
a constitution for the I. I. W. U.. which -was accepted without change
by the members on February 1; bylaws drawn up by the.permanent
committee were similarly adopted at the. March meeting. Although
the I. I. W. U. constitution was not identical in form and wording
with the L. E. U. constitution, with one or two exceptions no signifi-
cant changes were made in the structure, allocation of powers, or
general outward characteristics of the organizations.8 The most
important change made was the exclusion of weekly and monthly
paid office employees. Stone, Shepard, Frank, Clair, Gillis, and
Eitzen, together with two others of Stone's temporary appointees,
were made permanent members of the executive - committee at the
February 1 election; with two exceptions, retaining the positions to
which Stone had appointed them on January 25. Stone served as
president until March, when he resigned; Frank, Clair, and Eitzen
served until the annual meeting in June, when the two former
declined nomination, and the latter failed of reelection; Shepard,
Gillis, and two others of Stone's appointees still hold office.
5It does not appear how many cards were signed at this meeting . On February 7, when
the first petition was filed in this proceeding , the I . I. W. U. claimed over 800 members.
The Company has approximately 1.600 employees.
o Ramon Adkins , an employee who was present at the meeting , testified without con-
tradiction that Stone told the employees at this time that, with their permission, he
would like to be temporary president of the new union.
7 Since the I. I. W. U. was to exclude most office workers, the executive committee did
not include, as the L. E. U. committee had, any representative of the office emp'_oyees.
8 The L . E. U. constitution had been radically revised about the first of November 1940,
and the similarity between the revision and the I . I. W. U. constitution is clearly apparent
against the background of the old constitution.
R. G. LETOURNEAU, INC. .779
During the first week after the I. I. W. U.'s organization, the
committee appointed by Stone also engaged in signing up members.
Five of the men thus engaged had been officers of the L. E. U., in
which membership had been compulsory by virtue of a closed-shop
contract, until only a few days before. It is also noteworthy that
the cards used identified the new organization by referring to the
January 25 meeting,.which had been publicly announced as a meeting
of the L. E. U.
On January 29, the Company, having received. word from the
Board that complaints had been made regarding I. I. W. U. solicita-
tion in the plant, posted in its plant notices stating that "No solicita-
tion of any kind will be permitted on premises of Company"; and
on February 4, it gave to each of its supervisors a. comprehensive
memorandum, ordering supervisors to remain neutral in all situations
where their acts or words might encourage or discourage membership
in a labor organization. On February 6, 1941, the Board issued its
order approving the stipulation in settlement of the complaint case,
and on February 21 issued its Decision and Order requiring the dis-
establishment of the L. E. U.9 Pursuant to the terms of the Order,
the Company, on February 26, posted the notices, required by the
Order, that it would disestablish the L. E. U.
The facts set forth above make it clear that the I. I. W. U. is
merely a continuation of the L. E. U. under a new name, and that
it must have appeared to the employees 'themselves to be Such it
continuation. On January 24 the L. E. U. was an organization to
which all the employees had to belong by reason of its closed-shop
contract with the. Company. On- January 25, the day after the
stipulation providing for the disestablishment of the L. E. U. was
signed, there evolved from an L. E. U. membership.meeting the new
organization, the I. I. W. U. . At the urging of Stone, president of
the L. E. U., the employees voted to dissolve the , L. E. , U.- and then
promptly voted, again at Stone's urging, to form the I. I. W. U.,
with Stone still the president and four of the other L. E. U. officers
still on the executive committee. There is no evidence that it was
made plain to the employees that the-Company did not approve the
formation of the new organization or that it was "wholly indifferent
whether they joined" the IA. W. U.10 On the contrary, the circum-
stances irresistibly lead to the conclusion that the employees could not
have failed to identify the I. I. W. U. as a successor to the L. E. U.
° See footnote 1, supra. .
10 See Westinghouse Electric & Manufacturing Company v. National Labor Relations Board,
112 F. ( 2d) 657 (C. C. A. 2 ), enforcing as modiflcd Matter of Westinghouse Electric dt
Manufacturing Company and United Electrical , Radio & Machine Workers of America,
Local #410, 18 N . L. R. B. 300 , affirmed (per curiam.) 312 U . S. 660.
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and to have supposed that the I. I. W. U., as had the L. E. U.,
enjoyed the Company's approval. The evidence is uncontroverted
that the new organization was planned by Stone and other L. E. U.
officers before the L. E. U. was formally dissolved; that Stone engi-
neered both the dissolution of the L. E. U. and the formation of the
I. I. W. U.; that Stone, Shepard, Clair, Frank, and Eitzen; all of
whom had, been known to, employees as L. E. U. officers, actively
solicited employees, during the week following the dissolution of the
L. E. U., to join the I. I. W. U.; and that during the early months
of its existence the I. I. W. U. was controlled by Stone and other
L. E. U. personalities and still has on its executive committee four
of the men appointed by Stone to the temporary executive committee.
Under these circumstances we are satisfied and find that the
I. I. W. U. appeared to the employees to be a successor to the L. E. U.,
a dominated organization, and to have the favor of the Company,
and that in consequence their choice of the I. I. W. U. was not a
free choice within the meaning of the Act. We further find that
the I. I. W. U. is the continuation of and the successor to the L. E. U.
It is plain, therefore, and we find, that the I. I. W. U. is a "successor
organization" within the terms of the Board's Order in the complaint
case and of the decree of the Circuit Court of Appeals enforcing that
Order and that the I. I. W. U. is an organization from which the
Company, by the said Order and decree, is required to withhold "all
recognition as representative of any of its employees, for the purposes
of dealing with [the Company] concerning grievances, labor dis-
putes, rates of pay, wages, hours of employment or other conditions
of work." It follows that we cannot, under the circumstances, certify
the I. I. W. U. as the representative of the Company's employees for
the purposes of collective bargaining, as requested in the petition for,
investigation and certification filed by, the I. I. W. U.
The Brotherhood, the intervening labor organization in this pro-
ceeding, .has not requested that an election be held. We find that no
question concerning representation of employees of the Company
has arisen, and we shall, therefore, dismiss the petition of the
I. I. W. U.
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 representation of employees of R. G.
LeTourneau, Inc., Peoria, Illinois, has arisen within the meaning of
Section 9 (c) of the Act.
R. G. LETOURNEA.U, INC. 781
ORDER
Upon the basis of the foregoing findings of fact and conclusion of
law, the National Labor Relations Board hereby orders that the peti-
tion for investigation and certification of representatives of employees
of R. G. LeTourneau, Inc.,.Pria, Illinois, filed by Independent
Industrial Workers' Union be, and it hereby it, dismissed.
Mr. GER .nD D. REILLY took no part in the consideration of the
above Decision and Order.