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INTER-OFFICE COMMUNICATION
NATIONAL LABOR RELATIONS BOARD

To: Mr. Madden.

Date: August 30, 1939.
Mr. Smith.

Mr. Hawes.
From: Wm. M. Leiserson.
Subject: Willys Overland Motors, Inc.

I do not agree with the dismissal of the pattern makers' petition. The Board's certification of representatives dated January 18, 1939, shows that the die sinkers were treated as a separate unit, the maintenance mechanics and maintenance machinists were given an opportunity to vote separately, and there was a separate vote also of the clerical employees in the administration building. The Board then proceeded to certify the U. A. W. as the representatire of the rest of the employees.

The pattern makers were not given an opportunity to vote separately, although the record in the present case shows that the attorney for the pattern makers asked the regional director to intervene in the case and the regional director told him that his rights would be protected. I think the pattern makers were denied the opportunity of a separate vote when the Board was on notice that they desired to be a party to the proceedings. I see no reason for discriminating against the pattern makers and not giving them the same opportunity to select their own representatives that was given to the die sinkers, the maintenance men, and the clerks.

Since there are in fact no pattern makers working for the company at the present time, it would appear that an election is useless. But there were pattern makers employed when the petition was filed and for some months afterwards. It was not the fault of the petitioner that the hearing in the case was delayed until the pattern makers' season was over. If now we dimiss the case without prejudice to the right of the pattern makers to file another petition at a later time, as indicated in the Chairman's opinion, we may again find ourselves unable to decide the case until after the seasonal work of the pattern makers is over. Therefore I think an election should be ordered now and the regional director instructed to hold the election as soon as the company has its full complement of pattern makers for the next season.

-WML

INTER-OFFICE COMMUNICATION
NationAL LABOR RELATIONS BOARD

To: Mr. Madden.

Date: August 31, 1939. Mr. Smith.

Mr. Hawes.
From: Wm. M. Leiserson.
Subject: Bendix Products, R-1127, R-1128.

I do not want to sign this majority opinion. As stated in my memorandum of August 17th, I cannot agree to ordering an election among the policemen. With respect to the pattern makers, my position is that all that needs to be said is stated in the first sentence of the last paragraph on page 5. The Board determined what the appropriate unit was in its decision of December 16, 1937, and it cannot disregard this determination every time a group of employees comes along and says this is not the appropriate unit.

WML

INTER-OFFICE COMMUNICATION
NATIONAL LABOR RELATIONS BOARD

To: Mr. Madden.

Date: August 31, 1939. Mr. Smith.

Mr. Hawes.
From: Wm. M. Leiserson.
Subject: Toledo Steel Tube Company, R-628.
Attached is a copy of my concurring opinion in this case.

-WML

THE TOLEDO STEEL TUBE COMPANY, R-628

Mr. William M. Leiserson, concurring:

I do not think it is necessary to postpone final determination of the appropriate unit pending the outcome of the election. The evidence in this case requires a finding that the tool and die makers constitute an appropriate unit and that they must therefore be voted separately from the rest of the employees. No so-called industrial unit including tool and die makers has been established by contract between duly designated representatives of the employees and the employer. The 1935 contract did not recognize the U. A. W. as the exclusive representative of all the employees.

If, as the U. A. W. contends, it was operating in 1937 as the exclusive representative under the contract of 1935, then of course its petition, which originated the present case, could not be entertained by the Board. The petition would have to be dismissed on the ground that the petitioner already was the duly designated and recognized representative and it could not raise a question concerning representation against itself umder Section 9 (c) of the Act. The petition in the case can be considered by the Board only because the U. A. W. is not the exclusive representative of the plant unit, and by filing the petition the U. A. W. recognized the fact that it was not the exclusive representative.

I concur in the decision and direction of election, but I am of the opinion that two separate ballots should be taken, one for the tool and die makers' unit and the other for the rest of the employees.

INTER-OFFICE COMMUNICATION
NATIONAL LABOR RELATIONS BOARD

To: Mr. Madden.

Date: September 1, 1939. Mr. Emerson. From:Wm. M. Leiserson. Subject : Chicago Malleable Castings Company, R-1297.

Clyde Mallory Lines, R-1329. Referring to the memorandum of August 25th, the company was on notice when the exclusive contract was made just as much as when the membership contract was made. After the engineers and firemen give notice in March, 1937, that they reserved their right to separate representation the company was not free to make a contract with any organization that would include the engineers and firemen. Before the exclusive contract could be made it was necessary to settle the representation dispute with the engineers and tiremen.

WML

I VTER-OFFICE COMMUNICATION
NATIONAL LABOR RELATIONS BOARD

Date: September 2, 1939. To: Mr. Madden.

Mr. Hawes.

Mr. Smith.
From: Wm. M. Leiserson.
Subject : American Hair & Felt ('ompany, Case No. R-1435.
Attached hereto is a copy of my concurring opinion in this case.

WML (Handwritten :) Tom: Is this on the way?

JWM

AMERICAN HAIR & FELT COMPANY, R-1433

Mr. William M. Leiserson, concurring:

I should dismiss this petition on the ground that the petitioner did not present evidence showing that the employees wanted the ('. I. 0. local as their representative in place of the A. F. of L. local. The petition signed by the employees merely stated. “We do not want our local to be our barguning agent any more

This dismissal, however, should be without prejudice to the right of the C. I. 0. local to request an election and certification whenever it can present authorizations from a majority of the employees stating that they desired the C. I. 0. local to represent them, The fact that the A. F. of L. local extended its working agreement with the company to July, 1940, seems to me to have no bearing on the question concerning representation that is before the Board. The A. F. of L. local was duly certified as the exclusive representative of the employees on the basis of the election held in April, 1938, and it remains the authorized representative until another representative is designated in accordance with the provisions of the Act. It therefore was free to modify or renew or extend its contract with the company in any manner that was mutually agreeable to the parties.

Neither the termination date of the working agreement (July, 1940) nor the termination date of its wage provisions (December, 1939) seem to me to have any connection with the question of representation. I regard it as arbitrary for the Buard to pick out the wage provisions of an agreement and say that when these expire the employees may exercise their right to change their representatives

Congress has made it the duty of the Board to conduct an investigation and to certify representatives "whenever a question affecting commerce arises concerning the representation of employees." (Section 9c). Such a question a rose among the employees of this company early in 1938, and the Board conducted an election in April of that year. More than a year has elapsed since that election, and I can see no reason for denying the employees the right given them by Congress to change their representatives at any time that a majority of thein indicate they want another organization to represent them. It is not for the Board to create representation disputes at the expiration dates of agreements or of any provisions contained in agreements. Its duty is to investigate questions of representation whenever they arise.

INTER-OFFICE COMMUNICATION
NATIONAL LABOR RELATIONS BOARD

Date: September 5, 1939. To: Mr. Madden.

Mr. Smith,

Mr. Emerson.
From: Wm. M. Leiserson,
Subject: Clyde Mallory Lines, R-1329.
Attached hereto is a copy of my dissenting opinion in this case.

WML.

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Mr. William M. Leiserson, dissenting:

I cannot agree with the ruling that “no prejudicial errors were committed” in the investigation of the question concerning representation involved in this case. A complaint involving charges of unfair labor practices was also filed in connection with this case, but the complaint was withdrawn. Nevertheless, the hearing concerned itself largely with the matters alleged in the complaint, and the decislon with respect to the appropriate bargaining unit appears to me to be influenced by the charge that the I. L. A. contract was not properly made in accordance with the Act.

It is true, as the decision states, that the current contract between the company and the I. L. A. is no bar to an election to determine representation. But this contract, since it fixes an appropriate bargaining unit, is a bar to permitting other employees not covered by the contract to vote in an election for the purpose of choosing a new representative. It seems to me that simple fairness requires that only those in an appropriate unit under an existing contract shall decide if they desire a change in representation.

A bargaining unit legally established by a valid collective bargaining agree. ment is for industrial elections what a Congressional district is for political flections.

If a board of elections undertook to add to the voters of one Congressional district parts of the voters of two other distriets it would be doing what the majority decision is ordering in the present case.

The question concerning representation involves 40 employees who are now and have been since February, 1938, represented by the I. L. A. under it working agreement with the company. The industrial union challenges this representation, and it claims to be the authorized representative, not of the employees covered by the agreement but of a larger unit including 24 employees in addition to those now subject to the agreement. I am of the opinion that two sepa rate ballots should be taken, one of the 40 employees covered by the contract, and the other of the 24 employees whom the petitioner claims it also represents. If the petitioner secures a majority of both it will be free to negotiate an agreement with the company combining them both into a single bargaining unit.

The decision of the majority disregards both the unit established by the I. L. A. contract and the unit proposed by the challenging organization. It creates a new bargaining unit consisting of 78 employees and finds this appropriate, although neither the company nor the employees nor their organizations consider such a unit appropriate.

The decision is in error, it seems to me, in the conception that it has of the authority of the Board to establish bargaining units. This is made evident by the statement in the decision that the bargaining units which both employees' organizations consider appropriate "are arbitrary ones, founded on the fortuitous organizational developments of the two organizations." To say that the bargaining uits established through the development of labor organizations and the processes of collective bargaining are arbitrary and fortuitous seems to me to miss the primary purpose of Section 9 (c) of the Act. I am of the opinion that this section requires the Board to find the appropriate unit that the employees have developed during the processes of organization and collective bargaining and that it is not within the authority of the Board to create new bargaining units on the basis of abstract or theoretical considerations that seem sound to the members of the Board.

I know of nothing more arbitrary or fortuitous than a decision of a Government Board which creates bargaining units either by splitting or by combining existing appropriate units developed by employees and their employers through labor organization and collective bargaining. The arbitrariness of the unit created (not found) by the majority decision is made clearly evident by the fact that certain of the employees added to the existing contractual unit are represented by another local of the I. L. A., and by the contention of the company that certain others are covered by a current contract with the National Maritime Union.

INTER-OFFICE COMMUNICATION
NATIONAL LABOR RELATIONS BOARD

To: Mr. Madden.

Date: September 5, 1939.
Mr. Smith.

Mr. Emerson.
From : Wm. M. Leiserson.
Subject : Globe Newspaper Company, R-1413.

I will have to dissent from this decision. In view of the bargaining unit previously fixed in the Guild's contract, I think it is necessary that a separate vote be taken of the employees in the commercial departments.

Also, I do not think we have the right to exclude from the unit the eleven' employees who were covered by the Guild's contract, since these employees acquired rights under a contract. Exclusion or inclusion of these employees must be settled by collective bargaining and is not properly subject to determination by the Board as a question of representation.

WML

INTER-OFFICE COMMUNICATION
NATIONAL LABOR RELATIONS BOARD

Date: September 5, 1939. To: Mr. Madden.

Mr. Smith.

Mr. Einerson.
From: Wm. M. Leiserson.
Subject: B. F. Goodrich ('ompany, R-1428.

The decision does not express my opinion in this case. I can concur in the result reached by the Chairman.

The record shows that on two occasions the rubber workers refused to permit pattern makers to work overtime, because the pattern makers did not join the rubber workers' union. The Pattern Makers League understood it had an agreement with the rubber workers by which pattern makers would be a separate unit whenever they had a majority of the members, not only as was done in the Firestone case but in the other Akron rubber plants as well.

-WML

INTER-OFFICE COMMUNICATION

NATIONAL LABOR RELATIONS BOARD

Date: Sept. 5, 1939. To: Mr. Madden.

Mr. Smith.

Mr. Emerson. From : Wm. M. Leiserson. Subject: Stokely Brothers & Company, Inc. R-1382, R-1383, R-1384 and Van

Camp's, Inc. I disagree both with the Chairman's and with Ed. Smith's opinion in these cases. The petition of the Amalgamated should never have been accepted, be(anse it was the recognized representative of the employees at the time it filed the petition. The Amalgamated's petition should therefore be dismissed. The petitions of the Federal Labor Union and of the Teamsters may involve a jurisdictional dispute between two A. F. of L. organizations. I am not certain of this and will have to check it from the record.

Since the Amalgamated's agreements have specifically covered seasonal employees, although to a limited extent, I do not think this Board has the authority to interpret the agreement in such a way as to deprive the seasonal workers of any rights they may have acquired under the agreement.

WML

INTER-OFFICE COMMUNICATION
NATIONAL LABOR RELATIONS BOARD

Date: Sept. 7, 1939. To: Mr. Madden.

Mr. Smith.

Mr. Emerson. From: Wm. M. Leiserson. Subjert: Stokely Brothers & Company, Inc. R-1382, R-1383, R-1384 and Van

Camp's, Inc. Since writing the memorandum of September 5 about this case I have had the record checked, and I am of the opinion that the teamsters are entitled to a separate election. My reasons for this conclusion are:

1. The confiicting testimony impresses me that the C. I. O. asked the Teamsters' union to organize the truck drivers. Van Horn would not have gone to the truck drivers' homes merely on the request of the Teamsters' union.

2. Teamsters' Exhibit No. 9 shows that the teamsters received a minimum weekly wage regardless of the number of hours worked. In some cases this weekly wage is not the same as the hourly rates they are supposed to get multiplied by the number of hours per week.

3. It seems clear from the record that the truck drivers did not get the wage increases provided for the employees under the agreement. They received some other increases on an individual basis.

With respect to the seasonal workers, the record shows that the C. I. 0. does not want to represent them and that in the second of its agreements it in effect excluded seasonal workers. Also the C. I. O, was recognized as the representative of the seasonal workers without ever having had or shown a majority of these employees. Had the seasonal workers been counted as eligible at the time the C. 1. 0. was first recognized, then the C. I. 0. would not have represented a majority of all the employees. In view of the fact that the C. I. 0. admits this and does not desire to act as representative of the seasonal workers, I think it is quite proper to order an election among the seasonal employees at the Martinsville plant as requested by the Federal Union.

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