The United Forging Co.

National Labor Relations Board - Board Decisions

Nov 30, 1955

114 N.L.R.B. 1250 (N.L.R.B. 1955)

1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing the truckdriver, receiving clerk, order checkers, packing and ship-
ping department employees, clerks and order pickers, and the janitor,
but excluding office clerical employees, salesmen, and all supervisors
as defined in the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act.
[Text of Direction of Election omitted from publication.]'
MEMBER MuRnocK took no part in the consideration of the above
Decision and Direction of Election.
The Union Forging Company and Endicott Die Sinkers' Lodge
#190, International Die Sinkers ' Conference, Independent,
Petitioner . Case No. 3-RC-1563. November 30, 1955
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National La-
bor Relations Act, a hearing was held before Thomas H. Ramsey,
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 em-
ployees of the Employer.2
3. The Employer and Intervenor request that the present petition
be dismissed on the ground that the petition is premature inasmuch
as Petitioner's claim for recognition was made and its petition was
filed 3 months before the anniversary date of their contract. The
Employer also moves that the petition be dismissed on the ground
that it was filed within 1 year after the Board's certification of the In-
tervenor as exclusive bargaining representative for a unit of the Em-
ployer's production and maintenance employees.
The Intervenor was certified as bargaining representative for a unit
of the Employer's production and maintenance employees' on July
7, 1954.3 Thereafter, on October 20, 1954, the Employer and the In-
tervenor executed a contract to run until September 15, 1955, and from
year to year thereafter, absent written notice by either party ".. .
3 The hearing officer referred to the Board motions by the Employer and the Inter-
national Brotherhood of Boiler Makers, Iron Ship Builders , Blacksmiths , Forgers and
Helpers , AFL, herein called the Intervenor, to dismiss the instant petition on grounds of
contract- bar and on the ground that the petition was filed within a year from the date
that the Board certified the Intervenor as bargaining representative of the Employer's
employees For reasons stated in paragraph 3, infra, these motions are hereby denied.
2 The Intervenor was allowed to intervene in this proceeding on the basis of its con-
tractual interest.
' Case No. 3-RC-1421 (not reported in printed volumes of Board Decisions and Orders).
114 NLRB No. 190.
THE UNION FORGING COMPANY 1251
given at least sixty (60) days but not more than seventy-five (75) days
before the expiration date of the year in which the notice is given...."
On June 17, 1955, Petitioner requested recognition from the Em-
ployer as bargaining representative for the unit of employees
sought herein, and on June 20, 1955, Petitioner filed its petition in
this case. The petition was thus filed 27 days prior to the contract's
Mill B date, but 17 days before the end of the certification year.
in the early days of the National Labor Relations Act, the Board
announced the rule that, absent unusual circumstances,4 the majority
status of a certified union would be conclusively presumed to continue
for a period of 1 year from the date the union was certified by the
Board . Pursuant to this policy the Board, in the 1950 Centr-O-Cast
case,5 announced that it would henceforth dismiss all petitions filed
within the certification year.6
In the Ludlow Typograph case,' however, the Board reexamined
this policy. After noting that the original purpose of the 1-year rule
was to afford a reasonable opportunity to the certified union and the
employer to negotiate a contract free from interference by rival claims
to representation, the Board concluded that, once the parties had
agreed upon a contract during the certification year, the purpose of the
1-year rule had been served; and that it would not effectuate any
policy of the Act for the Board to foreclose rival representative claims
thereafter, even though the first contract was of such short term that
it expired during the certification year. The Board also pointed out
that, by permitting the making of two or more contracts within the
certification year, an employer and an incumbent union would be able
to circumvent the Board's rule against contracts of more than 2 years'
duration serving as bars to rival unions' petitions a For they could,
towards the end of the certification year, execute a 2-year contract, thus
extending the union's period of immunity against rival claims to a
total period of 3 years.9 Accordingly, the Board enunciated a new
4 Such as in the case of schism, or where a labor organization has dissolved or become-
defunct, or where the number of employees in the unit has changed drastically. See
footnote 19, i+ljre
e Centr- O-Cast & Engineering Company, 100 NLRB 1507. Cf. The Quaker Maid Co.
Inc., 71 NLRB 915.
8 The Board noted in that case that , in the past, union representation petitions and
decertification petitions filed during the final month of the certification year were merely
docketed , rather than dismissed , and were then processed after the end of the certification
year.
'Ludlow Typograph Company , 108 NLRB 1463 ( Members Murdock and Peterson dis-
senting ), decided on June 25, 1954.
8 Member Murdock points out in his dissent that , in certain industries, contracts of as
much as 5 years ' duration have been held to bar petitions for their entire term . In these
specific industries , however, without the Ludlow rule, rival petitions could be barred for
as much as 6 years.
9 This result might be achieved not only where the first postcertification contract expires
by its terms during the certification year , but also where such contract runs for several
months beyond the certification year and the parties negotiate a new 2 -year contract
during the certification year.
887644-56-vol. 114-80
1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rule; namely, that, when an employer and a certified union, following
certification, enter into a collective-bargaining contract, the terms of
the contract and the normal contract-bar rules will determine whether
a rival union's petition filed during the certification year is timely
filed. The Board thereafter affirmed this decision in the Flintkote,10
Natvar,ll and Westinghouse 12 cases. This, in our opinion , is a sounder
rule than the former rule, and one more consonant with the dual pur-
poses of the Act to promote stability in labor relations while at the
same time guaranteeing employees the right of freedom of choice in
the selection of their bargaining representatives.
In reaffirming this conclusion, we have taken into consideration the
legislative history of Section 9 (c) (3) and the recent Supreme Court
decision in the Brooks case,13 as well as the recent Board decision in
American Steel Foundries.14 We do not believe that the legislative
history of Section 9 (c) (3) of the Act militates against the adoption
of the Ludlow rule. That provision precludes the Board from direct-
ing an election in any bargaining unit or subdivision thereof within
which a valid election shall have been held within the preceding 12-
month period. While the legislative history of Section 9 (c) (3) indi-
cates congressional awareness of the Board's policy of protecting a cer-
tified union against rival claims for 1 year, we cannot find anything in
Section 9 (c) (3) or in its legislative history which prevents the Board
from processing rival petitions filed during the certification year, as
long as the Board complies with the limitation of Section 9 (c) (3)
on the spacing of elections. Section 9 (c) (3) appears to us, from
its legislative history, to have been directed principally against the
Board's policy under the Wagner Act of directing subsequent elections
within a 1-year period in units where the original election resulted in
a majority vote for "no-union." But even if we assume that, in ap-
proving the Board's certification-year rule as it existed in 1947, Con-
gress endorsed the Board's then policy of refusing to entertain peti-
tions filed during the certification year though the certified union had
already obtained a contract, it does not follow that Congress meant
thereby to preclude the Board from ever modifying that rule, even to
the limited extent here proposed.l5
10 The Flintkote Company, 109 NLRB 1273 ( Members Murdock and Peterson dissenting).
11 Natvar Corporation , 109 NLRB 1278 (Member Murdock dissenting).
Is Westinghouse Electric Corporation, 110 NLRB 872 ( Members Murdock and Peterson,
who dissented in the Ludlow case, considered themselves bound by the decision in that
case, and therefore joined in the decision).
13 Ray Brooks v N. L. R. B., 348 U. S. 96 (1954).
14 112 NLRB 531.
15 N. L. R. B. v. Seven-Up Bottling Company of Miami, Inc., 344 U. S. 344 , 350-352
(1953 ). In that case the Supreme Court held that the reenactment without change by
Taft-Hartley of the provisions of Section 10 (c) of the Wagner Act empowering the
Board to assess back pay for discriminatees did not preclude the Board from thereafter
altering its method of computing back pay, even though the former method of computing
back pay had been found by the Court to be a reasonable exercise of the Board ' s power in
a prior case. The Court rejected the contention that "whenever Congress reenacted with-
THE UNION FORGING COMPANY 1253
In view of the above, we conclude that, in the absence of any statu-
tory command to adhere to the 1-year rule as it existed in 1947, the
Board is free to adopt any modification of that rule which is consistent
with the basic objectives of the Act. For reasons already stated, we
believe that the Ludlow doctrine is consistent with those objectives.
We find no conflict between Ludlow and the recent decision of the
Supreme Court in the Brooks case.16 That case dealt with a refusal
of an employer to bargain with a certified union, 1 week after certifica-
tion, because of an intervening loss of majority. The validity of the
1-year rule was not directly in issue. The court of appeals, in uphold-
ing the Board in that case,17 decided merely that 1 week was not a
"reasonable time" to give the bargaining relationship a fair chance to
succeed, and that was the only question which the Supreme Court was
required to decide. The Supreme Court did, by way of dictum, state
that the Board's rule requiring an employer to bargain in good faith
for a contract with a certified union for a 1-year period following
certification was a fair and reasonable rule.18 In noting with ap-
proval certain other exceptions to the 1-year rule,19 the Court stated
that these matters are appropriately determined by the Board's ad-
ministrative authority. Needless to say, the Brooks case did not in-
volve, as does the case at bar, the application of the 1-year rule to a
representation petition filed after the consummation of a postcerti fica-
tion contract between an employer and a certified union. The Court
did not, therefore, consider whether the Board had discretion to
fashion an exception to the certification-year rule when a petition was
filed during the certification year, but after the expiration of a con-
tract executed pursuant to such certification. Accordingly, we do not
believe that anything in the Court's language in the Brooks case pre-
cludes the Board from adhering to the Ludlow rule or that the modifi-
cation of the 1-year rule by Ludlow so as to effect a more precise ac-
commodation of the conflicting statutory aims of stability and freedom
of choice constitutes an abuse of the Board's discretion.20 We believe,
rather, that the Ludlow doctrine is a reasonable rule dealing with the
problem of the duration of a certification, and falls squarely within
the allowable area of the Board's discretion referred to by the Court
out change provisions of the National Labor Relations Act it thereby froze administrative
decisions rendered under those provisions." See also N. L R. B v. International Brother-
hood of Teamsters, 225 F. 2d 343 (C A. 8) (1955). Cf. Helvering v Reynolds, 313 U. S.
428, 432 (1941). Helvering v. Wilshire Oil Co., Inc., 308 U. S. 90, 100 (1939).
16 Ray Brooks v. N. L. R. B., 348 U. S. 96.
17 204 F. 2d 899.
's The Court also noted that the Board's determination as to what date the certification
year should run from was a matter of administrative determination within the allowable
area of the Board's discretion in carrying out congressional policy.
19 I. e., in the case of schism, Carson Pirie Scott & Co., 69 NLRB 935 ; where the labor
organization has dissolved or become defunct, Public Service Electric & Gas Co , 59
NLRB 325; and instances where the unit complement has fluctuated radically within a
short period of time, Westinghouse Electric & Manufacturing Co., 38 NLRB 404.
91 See N. L it. B. v. Seven-Up Bottling Company, supra.
1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the Brooks case; that area which Mr. Justice Frankfurter describes
as one in which matters are ". . . appropriately determined by the
Board's administrative authority...." 21
We do not share the view of Member Murdock that our holding
herein will lead employers to prefer short-term contracts in the hope of
ousting the certified union. No evidence has come to light that the
Ludlow rule has had, or will have, the effect of inducing employers to
insist upon. short-term contracts to the detriment of stable labor rela-
tions. We believe that there are many factors which normally in-
fluence an employer's preference with regard to the duration of his
collective-bargaining agreements. The Board has consistently held
since the earliest days of the Act that the length of such a contract,
like any of its substantive terms, is a subject which the parties must
resolve through good-faith negotiations.22
In summary, we conclude from all of the foregoing that (a) the
Board was not precluded from formulating the modification to the 1-
year rule contained in the Ludlow case and is still free to adhere to
that decision, and (b) the purposes of the Act, in our opinion, will be
better effectuated by reaffirming the Ludlow doctrine at this time.23
Turning to the present case, we find that, as the Petitioner filed
its petition within a reasonable time before the Mill B date of the
existing contract between the Employer and the Intervenor, the peti-
tion was, therefore, timely, even though filed during the certification
year. Accordingly, as neither the contract nor the certification is a
bar to this proceeding, we find that a question affecting commerce
exists concerning 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. The Employer is a New York corporation engaged in the manu-
facture of steel forgings for the automotive and machine industries.
The Petitioner seeks to sever a unit of all employees who work on dies
or parts of dies used in the manufacture and completion of forgings.
The Employer takes the position that such a unit is inappropriate,
since some of the employees in the die department, although skilled,
are not diesinkers. The Intervenor takes no unit position.
2 Ray Brooks v. N. L. R. B., supra.
= The Hsnde & Dauch Paper Company, 104 NLRB 847, 848; St. Joseph Stork Yards
Company, 2 NLRB 39, 55.
0 In American Steel Foundries , 112 NLRB 531, the majority of the Board found that
an employer had violated Section 8 (a) (5) of the Act by refusing to bargain with a cer-
tified union during the certification year for a new contract after the expiration of a post-
certification contract. The majority saw no conflict between its ruling in that case and
the Ludlow rule. Accordingly, it is clear that American Steel Foundries did not overrule
Ludlow. The majority opinion in American Steel Foundries, in effect, confines the applica-
tion of the Ludlow doctrine to representation proceedings . Member Rodgers , who dis-
sented in American Steel Foundries , adheres to the view that the complaint therein should
have been dismissed in view of Ludlow . Chairman Leedom did not participate in the
decision in American Steel Foundries.
THE UNION FORGING COMPANY 1255
The die department is located in a separate room, and the employees
therein are under separate immediate supervision. The employees in
the die department consist of 4 diesinkers, 3 trimmer diesinkers, 3
diesinker apprentices, 1 toolmaker, 1 forming toolmaker, 1 die welder,
1 die repairman, 1 boring mill operator, 1 lathe operator, 1 plane op-
erator, 1 saw operator, and 1 tool crib attendant 24 With the exception
of the tool crib attendant, all these employees work on dies or parts of
dies. Die department employees punch a time clock not used by other
employees and there is no interchange of die department employees
with employees in other departments. The die repairman may be
called upon to make minor repairs on dies in other departments ; 25
otherwise, die department employees work exclusively in the die room,
as it is the only area in the plant equipped with the necessary
machinery.
The Employer maintains an informal apprenticeship program for
diesinkers 2e The Employer admits the skill of the diesinkers and
trimmer diesinkers, but claims that the lack of similar skills among
other employees in the die department renders the requested unit in-
appropriate. We find no merit in this contention. It is clear from
the record that the die department employees here compose a func-
tionally distinct and separate departmental group, who comprise, for
purposes of severance, the type of traditional departmental unit con-
templated by the Board in the American Potash 24 case . Accordingly,
as.the Petitioner is an affiliate of a union which has historically repre-
sented such employees on a departmental basis, we find that they may,
if they so desire, constitute a unit appropriate for purposes of col-
lective bargaining within the meaning of Section 9 (b) of the Act 28
We shall, therefore, direct a self-determination election in the follow-
ing voting group : _
All employees in the die department at the Employer's plant located
in- Endicott, New York, including the tool crib attendant in the
department,29 but excluding all other employees and all supervisors
as defined in the Act.
2A In addition to its die shop employees, the Employer employs approximately 140 pro-
duction and maintenance employees. •
ffi The- only other die room employees who perform die operations outside of the die
room operate a large planer and saw which is,located just outside of the die room because
of lack of space in that room.
20 One diesinker completed an 8-year apprenticeship approved by the Veterans' Admin-
istration , at the Employer's plant. The Employer has utilized and is utilizing a die-
sinker's apprenticeship program, although such program is based more on the individual
apprentice 's ability to learn than on any predetermined length of time.
27 Ame,ican Potash & Chemical Corporation , 107 NLRB 1418.
28 Revere Copper and Brass, Incorporated , 111 NLRB 1241 ; General Motors Corporation,
111 NLRB 1238; Bridgeport Brass Company, 110 NLRB 997; Eaton Manufacturing
Company, 108 NLRB 1269.
24 The record is not clear as to whether an employee classified as a sweeper is func-
tionally part of the die department. We will permit him to vote subject to challenge.
1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. However, we shall make no final unit determination at this time.
If, in the election herein directed, a majority of the employees vote
for the Petitioner, they will be taken to have indicated their desire to
constitute a separate appropriate unit, and the Regional Director
conducting the election is instructed to issue a certification of repre-
sentatives to the Petitioner for the unit described above, which the
Board, under such circumstances, finds to be appropriate for purposes
of collective bargaining. In the event a majority vote for the Inter-
venor, the Board finds that they may continue to be represented as
part of the existing unit, and the Regional Director will issue a cer-
tification of results of election to such effect.
[Text of Direction of Election omitted from publication.]
MEMBER MURDOCK, dissenting :
The rule of the Ludlow Typo graph Co. case,30 upon which the pres-
ent two-member majority decision is squarely rested, holds in substance
that where a newly certified union and the employer enter into a con-
tract which expires within the certification year, the Board will "allow
the contract to control the filing of a new petition." Member Peterson
and I dissented from the ruling in the Ludlow case.31 I was then of the
opinion, and I am firmly convinced now, that this vital departure from
the Board's basic 1-year certification rule was unnecessary, unwise,
and unsound, if not wholly invalid. I am particularly reinforced in
my view by the decision of the Supreme Court in Ray Brooks,33 which
clearly demonstrated the legality, the reasonableness, and the essen-
tiality of the certification-year rule as it existed before Ludlow.33
And, indeed, shortly following the Ray Brooks case the Board in
American Steel Foundries 34 (Member Rodgers dissenting) refused to
give effect to the Ludlow rule which was there in issue. Especially in
the light of the later decisional developments, I must again strongly
register my disagreement with the Ludlow rule, relied on by my col-
leagues as precedent for their holding in this case.
In American Steel Foundries, the initial contract of the certified
union was due to expire 3 months before the end of the certification
year. The employer, having information that the employees had re-
pudiated the union, refused to recognize the union beyond the expira-
tion date of the contract. The Board majority held that under the
certification-year rule the majority status of the union was "conclu-
sively presumed" to continue for 1 year, that the employer was there-
fore obligated as a matter of law to bargain with the union at least for
80 108 NLRB 1463.
si The terms of 2 of the 3 majority Members in the Ludlow decision have since expired
and they are no longer with the Board.
m Ray Brooks v. N. L. if. B., 348 U. S. 96, December 6, 1954.
s' Ludlow was decided by the Board about 5 months before the Ray Brooks case, ibid.
8f112 NLRB 531.
THE UNION FORGING COMPANY 1257
the full 1 year after the date of the certification, and that the em-
ployer's refusal to do so was violative of Section 8 (a) (5). The con-
flicting effect of this holding upon the earlier Ludlow case is apparent,
as will be shown below. Member Rodgers' dissent therein noted that
the majority decision was "completely inconsistent" with Ludlow,
even though the majority decision did not expressly overrule Ludlow.
Because of the critical importance which I attach to the preservation
of the certification-year rule unimpaired by the Ludlow doctrine, I
believe it is well to analyze in some detail the merits of the positions for
and against Ludlow :
1. It is essential first to examine the content of the certification-year
rule which has been stated succinctly and unambiguously in the Board
cases, 36 viz:
A certified union's majority status, in the absence of unusual cir-
cumstances 36 is conclusively presumed to continue for one year
following certification.
The Board has, since and notwithstanding the Ludlow decision,
continued to state the certification-year rule substantially as above.37
This result is patently anomalous, if, as my colleagues here contend,
the Board intended to adhere to Ludlow. For if under the rule of
Ludlow a petition can be effectively filed after the contract term ex-
piring within the certification year, the certification-year rule cannot
consistently be stated as "conclusively presuming" the majority status
of the certified union for 1 year. So long as the certified union's ma-
jority status is thus established for 1 year, the employer is bound by
statute to recognize and bargain with that union for at least the 1-
year period and, consequently, no petition seeking to raise a question
concerning representation can lie during such period. The conflict
between Ludlow and the certification-year rule is thus obvious and
basic. The Board cannot adhere to both.
'2. The certification-year rule has been on the Board's books since
the earliest days of the Act 38 It has been in issue before the courts in
many cases and has had judicial approval in virtually all instances,"
ffi E. g., Heide & Dauch Paper Co., 104 NLRB 847; Sawyer Industrial Sheet Metal
Fabricators, 103 NLRB 997; Celanese Corp. of America, 95 NLRB 664; Kimberly Clark
Corp., 61 NLRB 90; Aluminum Co. of America, 57 NLRB 913.
m There is no issue that "unusual circumstances ," as the Board uses that expression,
are involved in the present case. Unusual circumstances have been found to exist where,
for example , in the certification year there has been an effective schism in the ranks of
the union , or the union has become defunct. See , e. g., Carson Pine Scott & Co., 69
NLRB 935; General Electric Co., 96 NLRB 566; Public Service Electric and Gas Co.,
59 NLRB 325 ; C & D Batteries, 107 NLRB 1405. See also on general question, Henry
Heide, Inc., 107 NLRB 1160.
1 E. g., Santa Clara Lemon Association, 112 NLRB 93 ( and four other companion
cases ) ; Oak Flooring Co., 111 NLRB 906; American Steel Foundries, supra; The Baker
and Taylor Co., 109 NLRB 245.
se E. g., Piqua Munising Wood Products , 7 NLRB 782, enfd. 109 F. 2d 552 ( C. A. 6).
sa For a comprehensive discussion of the court cases, see N. L. R. B. v. Ray Brooks,
204 F. 2d 899 ( C. A. 9), affd. 348 U. S. 96.
1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
culminating in the Ray Brooks case in the Supreme Court. The pos-
sibility of a short-term contract expiring within the certification year
was a contingency which was plainly inherent in the overall problem
and was undoubtedly within the contemplation of the Board when it
.promulgated, and later repeatedly reaffirmed, the certification-year
rule. Nor indeed did the actual issue arise for the first time in the
Ludlow case. There were occasions before the Ludlow case wherein
the Board specifically considered and rejected the Ludlow contention.40
The length of time a certified union was to be afforded protection
was a fundamental decision which had to be made early in the Act's
administration, in the exercise of the Board's function to give content
and meaning to the broad provisions of the Act. "To achieve stability
of labor relations was the primary objective of Congress.in enacting
the National Labor Relations Act." 41 [Emphasis supplied.] This
legislative purpose of stabilizing industrial relations through col-
lective bargaining would be frustrated unless "a bargaining relation-
ship once rightfully established [were] permitted to exist and function
for a reasonable period of time in which it [had] a fair chance to,suc-
ceed." 42 The certification of a majority union by the Board, as a result
of a secret-ballot election, had to be accorded a durability commen-
surate with the practical effectuation of the legislative policy. The
Board's initial judgment, to which it has adhered until Ludlow, to fix
the "reasonable period" as a minimum of 1 year,43 has by the very
reason of its long history proved itself a sound calculation in the fur-
therance of the stability objective of Congress. So far as I can as-
certain, there has been no change on the industrial scene or in the
statute to explain the recent Ludlow reversal of the successful Board
policy concerning the protected period of a certification.
3. The legislative history of the 1947 amendments to the Act ex-
plicitly shows that Congress was fully aware of the Board and court
applications of the certification-year rule, and that Congress' had, at
least, wholly accepted the rule,44 as it then existed unmarred by the
Ludlow case. Congress too, as it must be recognized, was conscious,
from the existence of Board cases, and otherwise, of the merits. and
demerits of a Ludlow type limitation on the certification-year rule.
That it did not see fit to enact such a limitation is manifest. But it
did enact a significant amendment which points sharply to - con-
40 E. g., Kimberly-Clark Corp ., supra; Aluminum Co. of America, supra ; Swift & Co.,
66 NLRB 1 288 ; De Vry Corp., 73 NLRB 1145.
41 Colgate -Palmoliv Peet Co. v. N. L. R B., 338 U. S . 355, 362 ; see also N. L. R. B. v.
Ray Brooks , 204 F 2d 899, 907 ( C. A. 9), supra.
42 Franks Bros. Co. v. N. L R. B., 321 U. S. 702, 705.
43 See, e. g., Soss Mfg. Co., 56 NLRB 348; Kimberly-Clark Corp., supra ; Oak Flooring
Co., supra, in which the certification-year rule was stated to bar any representation ques-
tion for at least 1 year.
44 See N. L. R . B. V. Gullett Gin Co., 340 U. S. 361 , 365, 366; of . Fay v. Douds, 172 F.
2d 720 (C. A. 2).
THE UNION FORGING COMPANY 1259
gressional approval of the full unimpaired 1-year period of protec-
tion of a Board certification. In Section 9 (c) (3) of the amended
Act, it was provided that-
No election shall be directed in any bargaining unit or any sub-
division within which, in the preceding twelve-month period, a
valid election shall have been held.
In reporting to Congress and to the President on the first year of
its administration of the Taft-Hartley Act, the Board stated that
Section 9 (c) (3) "amounts in part to a codification of the Board's
1-year certification rule." 45 [Emphasis supplied.] And more recently
in the Bay Brooks case, the Board argued the identical construction of
Section 9 (c) (3) before the Supreme Court.48 The correlation be-
tween Section 9 (c) (3) and the certification-'year rule is revealed
in the legislative history, e. g.: 44 The Senate Report 48 stated :
This amendment prevents the Board from holding elections more
often than once a year in any given bargaining unit unless the
results of the first election are inconclusive by reason of none of
the competing unions having received a majority. At present,
if the union loses, it may on presentation of additional member-
ship cards secure another election within a short time, but if it
wins its majority cannot be challenged for a year. [Emphasis
supplied.]
Senator Taft commented on the floor : 41
The bill also provides that elections shall be held only once a
year, so that there shall not be a constant stirring up of excite-
ment by continual elections. The men choose a bargaining agent
for one year. He remains the bargaining agent until the end
of that year. [Emphasis supplied.]
4. The view would seem unavoidable that the recent Bay Brooks
decision by the Supreme Court" established the validity and sound-
ness of the 1-year certification rule in the historical form that it has
been applied by the Board, i. e., absent the basic impairment made by
the Ludlow case. The immediate issue before the Supreme Court
in that case, as put by the Court, was "the duty of an employer toward
45 Thirteenth Annual Report of the National Labor Relations Board , 1948 , p. 31. See
also Cone Brothers Contracting Co., 114 NLRB 303, Intermediate Report adopted by
the Board that Congress gave "renewed recognition" to the certification -year rule when
it enacted Section 9 ( c) (3).
b The Board 's brief was filed in the Supreme Court after its decision in the Ludlow
case.
a See also, S. Rep . No. 105, 80th Cong., 1st Sess., p. 12; 93 Cong . Rec. 3440-47;
93 Cong. Rec. 3528.
" S. Rep . No. 105, 80th Cong., 1st Sess., p. 25.
0 93 Cong. Rec. 3838.
GO Bay Brooks v. N. L. R. B., 348 U. S. 96.
1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a duly certified bargaining agent if, shortly after the election which
resulted in the certification, the union has lost, without the employer's
fault, a majority of the employees from its membership." Among
other things, the Court observed that, before the 1947 amendments,
"the Board uniformly found an unfair labor practice where, during
the so-called `certification year,' an employer refused to bargain on
the ground that the certified union no longer possesses a majority";
and that "the Board continued to apply its `one-year certification' rule
after the Taft-Hartley Act came into force, except that [in view of
Section 9 (c) (3) ] even `unusual circumstances' no longer left the
Board free to order an election where one had taken place within the
preceding 12 months." On the strength of the certification-year rule,
the Court affirmed the Board's finding against the employer for its
refusal to bargain during the certification year. Nothing in the Court
opinion remotely suggests any reservation upon the certification-year
rule such as would be affected by the Ludlow case.51
It is true that the Court at one point refers to an "allowable area
of the Board's discretion in carrying out congressional policy." But
the allusion of the Court is in specific regard to "the Board's view that
the year period [which under Section 9 (c) (3) must be permitted
to elapse between holding of elections] should run from the date of
certification rather than the date of election." The allowable discre-
tion adverted to which was exercised by the Board is thus in extend-
ing beyond the prescribed 12 months the period between elections,
not in curtailing this interval, or the 1-year certification period. And
the Court's whole discussion in this case pertaining to the 12-month
election bar can have pertinence and meaning only as recognition of
the support to be found in Section 9 (c) (3) of the traditional cer-
tification-year rule.
Among the "controlling considerations" cited by the Supreme
Court in its affirmance of the certification-year rule, the following is
particularly noted :
The underlying purpose of this statute is industrial peace. To
allow employers to rely on employees' rights in refusing to bar-
gain with the formally designated union is not conducive to that
end, it is inimical to it. Congress has devised a formal mode for
selection and rejection of bargaining agents and has fixed the
spacing of elections, with a view of furthering industrial stability
and with due regard to administrative prudence. [Emphasis
supplied.]
The passage emphasized above is explicit on the point that employers,
relying on employees' rights, may not refuse to bargain with the certi-
ci Note that Kimberly-Clark Corp , 61 NLRB 90, one of the cases in which the Board
earlier considered and rejected the Ludlow contention, was cited by the Supreme Court
as an example of a Board case which explained and applied the certification-year rule.
THE UNION FORGING COMPANY 1261
fled union during the certification year .12 A necessary corollary is
that an employer cannot effectively file a representation petition for
the full year following the certification. And as the "same regula-
tions and rules of decision shall apply irrespective of the identity
of the persons filing the petition or the kind of relief sought," 53 a
petition filed by a union, as in this case, is also precluded. On the
broader aspect of the Court opinion, the same result is reached. For,
as already shown, the certification-year rule, described and endorsed
by the Court, bars a petition filed within the certification year from
raising a question concerning representation necessary to the holding
of an election.54 In sum, the rule of the Ludlow case cannot logically
be reconciled with the Supreme Court holding in Ray Brooks 55
But my colleagues favoring the Ludlow rule have inexorably swept
aside all the foregoing considerations. Even assuming the theoretical
existence of Board discretion to institute the Ludlow rule-as to which
there may be serious doubt-would it not seem the better part of
wisdom to leave unchanged the certification-year rule, in view of its
long and effective history in furtherance of stability, and the solid
array of Board, court, and legislative authority in its support? Why
substitute a different rule the validity and reasonability of which
are open to serious question? What then are the compelling factors,
overriding all countervailing argument, which move my colleagues
in applying Ludlow "to allow the contract [expiring any time within
the certification year] to control the filing of a new petition"? One of
the grounds stated appears to be that the preexisting rule "permits
the employer and the incumbent union in effect to circumvent another
Board rule against contracts of more than 2 years serving as bar." se
This indeed, in my view, is an amazingly slim and an unnecessary
reason for punching a gaping hole in the certification-year rule. The
other ground given for the Ludlow rule, which is less clear, purports
to swing the balance away from stability of labor relations toward a
more frequent opportunity of employees to select and change their
bargaining representatives. Employee freedom of choice is also, of
course, one of the purposes of the Act. However, that the revision
in the balancing of interests effected by the Ludlow rule is necessary
or desirable at this time, in view of its impact upon the basic and
firmly established 1-year certification rule, seems in my opinion a
wholly unreasoned conclusion. Indeed, such a rule, running contrary
62 The majority holding in American Steel Foundries, supra, directly conforms with
this view.
sa Section 9 (c) (2).
54 Section 9 (a).
66 If, as my colleagues assert at one point, "the validity of the 1-year rule was not
directly in issue" in the Brooks case, it is beyond comprehension from any reading of the
various published opinions on what other possible theory or basis in law the Board, the
court of appeals, and the Supreme Court decided that case.
58 See Reed Roller Bit Co., 72 NLRB 927.
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as it does to the certification-year rule, would "make chaos out of the
administration of the statute and prevent the protection of the very
rights [of employees] which it aimed to secure." 51 Furthermore, it
can hardly be reconciled with the continuing trend in Board decisions
toward greater stability in industrial relations.58 Thus, for example,
in more recent developments, contracts with terms as long as 5 years
where they cover a substantial part of an industry have been held to
bar the opportunity of employees to select and change bargaining rep-
resentatives,59 and likewise even contracts of indefinite duration or
terminable at will 60 are bars for the first 2 years of their term. Con-
trasting Ludlow, however, my colleagues apparently have no com-
punction in permitting the protection afforded the Board's own certi-
fication of a majority union to be cut to less than 1 year-conceivably
to only 2 or 3 months, even absent "unusual circumstances."
My colleagues do not find here the existence of "unusual circum-
stances," the sole basis intended and expressed in the certification-year
rule for any exceptions thereto.81 The existence of "unusual circum-
stances" has consistently been restricted, and logically so, to situations
where in the actual representation of the employees a vacuum or con-
fusion has developed within the certification year, as where the certi-
fied union has become defunct or a bona fide schism has split its ranks;
or, in rare instances, where a radical change has taken place in the size
and character of the unit upon which the certification was predicated.
Nonetheless, my colleagues strive to justify their position on the ground
that in Ludlow they have merely "fashioned" one "other" such ex-
ception to the certification-year rule, although Ludlow, unlike the
only type of exception permitted theretofore, clearly alters the sub-
stance of the 1-year rule. Unquestionably, as the Supreme Court ob-
served, it is appropriate for the Board to determine in particular cases
whether the "unusual circumstances" test is met. But it is entirely an-
other matter for my colleagues to attempt to extract from this observa-
tion of the Court-based upon Board cases then extant and presented
to the Court-a license or approval to make any exception to the certi-
fication-year rule that they see fit, or to do away with the rule com-
pletely. For my colleagues to take the view they do of the Supreme
Court's judgment in the Brooks case seeks, in my opinion, to render
s, N. L. R . B. v. Botany Worsted Mills, 133 F . 2d 876 , 881 (C . A. 3), cert . denied 819
U. S. 751.
se See Supreme Court opinion in Colgate-Palmolive-Peet Co . v. N. L. R. B., supra, to the
effect that "stability of labor relations" was the "primary objective" of Congress in enact-
ing the N. L. R. A.
59 E. g., General Motors Corp., 102 NLRB 1140 , and Allis-Chalmers Mfg. Co., 111
NLRB 389 ( 5-year contracts ) ; Republic Aviation Corp ., 109 NLRB 569, and Home Curtain
Corp ., et ai., 111 NLRB 336 (3-year contracts ). See also Reed Roller Bit Co., supra, on
the underlying rationale.
0° See Rohm (i Haas Co., 108 NLRB 1285.
61 See supra, footnote 36.
THE UNION FORGING COMPANY 1263
meaningless the Court's clear and careful exposition of the funda-
mental policies and considerations which serve to establish the necessity
and justification of the certification-year rule.
The Ludlow case here reaffirmed by two of my colleagues appears
to rest on the concept that if a certified union consummates a contract,
regardless of its duration, the stability objective of the Act is thereby
sufficiently achieved. Such an estimation, in my view, flies in the face
of all of the Board's experience, and truly ignores the realities of
industrial relations. As recognized by the Supreme Court, a certi-
fied union should be given "a fair chance to succeed," 62 and "ample
time for carrying out its mandate on behalf of its members, and should
not be under exigent pressure to produce hot house results or be turned
out." 83 A short-term contract, where unions are competing, can
scarcely furnish reasonable assurance that conditions will be stabilized
and raiding and strife minimized.64 The effec: rather would be to
provoke continued raiding of the certified union's membership, inter-
fere with the effective administration of the contract, and deprive
the bargaining agent of its "fair chance to succeed" in representing
the employees in the bargaining unit.65 The Ludlow rule is stated
in absolute terms : ". . . the contract [will] control the filing of a new
petition" within the certification year. I can readily envisage in-
congruous and absurd results of the rule if it is thus applied : Will
a petition lie and an election be directed if the contract expires, is
opened up, or terminated by the parties within 1 month of the cer-
tification, 2 months, 3 months? If, as is often the case, a certified union
and the employer initially enter into a short-term contract specifically
designed to conform with the expiration of contracts negotiated on
an areawide or industry basis, will a petition in these circumstances be
honored within the year of the certification? It would appear that
under the Ludlow rule the answers to these questions must be in the
affirmative, and my colleagues do not even suggest otherwise. But
the Board cannot by law conduct a second election until 12 months
after certification under Section 9 (c) (3). Would then the hiatus
period necessarily created between the expiration of the short-term
contract and the conduct of the second election, during which there
would be no bargaining, be conducive to stable and harmonious labor
relations ? I cannot conceive that this answer could be in the affirma-
tive. Furthermore, to accept the petition under the circumstances of
the Ludlow rule would be to accord less efficacy to the certification of a
union which succeeds in getting a contract, than to a certification of
a union which experiences some delay in negotiating its first contract,
ea Franks Bros. v. N L R. B , 321 U. S. 702, 705.
63 Ray Brooks v. N. L. R. B., 348 U. S. 96, 100.
64 Ibid. See also , to the same effect, S Rep . No. 573, 74th Cong., 1st Sess., p. 13.
10 N. L. R. B v. Ray Brooks, 204 F. 2d 899, 907 ( C. A. 9), supra.
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereby placing a premium on delay. Does this further stability?
Finally, as earlier pointed out in the dissent to the Ludlow decision, 66
"the employer's absolute duty to bargain with a newly certified union
will henceforth be measured by the contract term rather than by the
1-year rule, [and] employers [particularly those who harbor hopes
of ousting the certified union] will of course prefer short-term con-
tracts." An employer, although intent upon a short-term contract,
may not always succeed in obtaining the union's agreement thereto,
for the union may be forced to make substantial concessions as a barter
to avoid the risk of a challenge to its majority status within the certi-
fication year and before it could reasonably demonstrate its capabilities
as the employees' representative.
I believe the certification-year rule, with which Ludlow is funda-
mentally in conflict, has become effectively embedded in the law.
It is not difficult to see that the net effect of the Ludlow rule is an
overall lessening of an employer's statutory duty to bargain. No
reasonable and valid basis has been shown for departing from the 1-
year rule in order to adopt a formula such as contained in Ludlow.
Accordingly, in view of the principles, authorities, and arguments
discussed herein, I would overrule the Ludlow case and hold the con-
tract in the present case a bar to the petitions'
MEMBER PETERSON took no part in the consideration of the above
Decision and Direction of Election.
00 Ludlow Typograph Company, supra.
87 E. g., Willborn Brothers Co., 77 NLRB 1026 ; Texas Paper Co ., 75 NLRB 799.
Alaska Steamship Company and Horace W. Underwood
American Radio Association , CIO and Horace W. Underwood.
Cases Nos. 19-CA-277, 19-CB-90, 19-CA-358, and 19-CB-135.
November 30,1955
SUPPLEMENTAL DECISION AND ORDER
On February 11, 1952,1 the Board issued its Decision and Order in
the above-entitled case, finding that the Respondent Company had
violated Section 8 (a) (1) and (3) of the Act by discriminating against
Horace W. Underwood, the Charging Party, and that the Respondent
Union had violated Section 8 (b) (1) and (2) of the Act by causing
such discrimination. The Board, among other remedies, ordered the
Respondents, jointly and severally, to make Underwood whole for any
loss of pay he may have suffered as a result of the discrimination
against him. Thereafter, on February 26,1954, the Board's Order was
1 98 NLRB 22.
114 NLRB No. 188.