I would dismiss the petition of the C. I. O. union on the ground that it is admittedly the recognized representative of the "Regular" and "Junior" employees under the existing contract. The written contract is evidence of this representation, and neither the Teamsters nor the Federal Union challenges this representation. No certification is necessary under these circumstances, since there is no question of representation involved. To: Mr. Madden. Mr. Smith. Mr. Emerson. INTER-OFFICE COMMUNICATION NATIONAL LABOR RELATIONS BOARD From: Wm. M. Leiserson. Subject: Willys Overland Motors, R-1445. Date: SEPTEMBER 8, 1939. Attached hereto is a copy of my concurring opinion in this case. Should we not have the U. A. W.-C. I. O. and U. A. W.-A. F. of L. on the ballot here as in the Toledo Steel Tube case? WILLYS OVERLAND MOTORS, INC. R-1145 WML Mr. William M. Leiserson, concurring: I am of the opinion that the evidence and the Act require a definite finding that the pattern makers and model makers constitute the appropriate unit in this case. The statement in the decision "that the determining factor will be the desires of the employees themselves" is obviously incorrect. The great majority of the employees object to a separate unit for the pattern makers, but these employees are not given an opportunity to express their desires in the matter. On the other hand, if the pattern makers should vote for the plant unit in this case, the Board, under the so-called Globe doctrine, will give them further opportunities to vote in their craft unit when the question arises again in the future. This is the same as finding that the crait unit is the appropriate unit, and the decision should so state without equivocation. INTER-OFFICE COMMUNICATION Date: SEPTEMBER 11, 1939. To: Mr. Madden. Mr. Smith. Mr. Emerson. From: Wm. M. Leiserson. Subject: Douglas Aircraft Co., R-1427. Referring to the memorandum from Bailey and Fuchs dated August 23rd. I agree that no decision ought to be made until compliance with the Board's order in the previous complaint case has been secured. Since the Board made a finding in the El Segundo case that the plant unit was the appropriate unit, I could not agree to a seprate election for the welders in this plant. Whether the welders in the other plant should be voted separately depends on whether all who do weiding work in this plant can be included in the unit. If much of the welding work is done by mechanics in the various crafts, as contended by the A. F. of L., then a separate welding unit is inap propriate. I shall want to check the facts about this in the record before I make up my mind about it. WML To: Mr. Madden. Mr. Smith. Mr. Emerson. INTER-OFFICE COMMUNICATION From: Wm. M. Leiserson. Date: September 12, 1939. Subject: Weyerhaeuser Timber Company. R-1315–1317. I think the dispute between the two local unions affiliated with the C. I. O. is jurisdictional the same as the dispute between the A. F. of L. craft unions and the carpenters. If we do not handle one because of the jurisdictional questions, we should not handle the other. However, I think we ought to attempt informally to get some agreement both among the A. F. of L. unions and among the C. I. O. unions before we issue a decision. It is possible that William Green will support the position of the craft unions in view of Hutcheson's letter. In the C. I. O. I think Local 36 can be made to withdraw in favor of the other local union. With respect to the machinists I doubt if they intend to relinquish their claim to machinists working in the woods simply because they did not discuss this matter at the hearing. Their petition includes the machinists in the woods, and if we order a craft election for the machinists we should include these craftsmen wherever they happen to be employed by the company. I have made some notes on the draft on pages 6, 12, 17, 18, & 19. WML To: Mr. Madden. Mr. Smith. Mr. Emerson. INTER-OFFICE COMMUNICATION From: Wm. M. Leiserson. Date: Sept. 22, 1939. Subject: Great Lakes Steel Corporation. R-1311, R-1312. Attached hereto is a copy of my opinion to accompany the Supplemental Decision in this case. GREAT LAKES STEEL CORPORATION, R-1311 AND R-1312 Mr. William M. Leiserson, concurring in part and dissenting in part: WML I concur in the certification of the Brotherhood of Railroad Trainmen as the representative of conductors and switchmen, but I must dissent from the second direction of election among the engineers, firemen, and hostlers. A secret ballot has clearly shown that neither of the contesting organizations has been chosen by a majority of the employees. The allegiance of the employees is almost equally divided, 18 having designated one organization and 16 the other. It seems to me an unwarranted assumption of authority by the Board To order now another election in which the choice of the employees is to be limited to the one organization which received the 18 votes and to deny them an opportunity to vote for the other organization which had only two votes less. The so-called run-off election ordered in the supplemental decision is a form of preferential voting to create a second choice majority where the first choice resulted in no majority. I find no warrant in the National Labor Relations Act for ordering elections on the basis of first and second choices or other forms of preferential voting. If the Board has authority to order a second choice election in this case, by the same token it could order various other forms of preferential roting, including proportional representation such as is provided in the city charters of some municipalities. Whether elections should be conducted on the basis of simple majorities, second choices, or other forms of preferential voting are political questions on which the people of the country have strong differences of opinion. Since Congress did not specifically provide for run-off dections and second choices, I do not think the Board is authorized to order any such election in an effort to create an artificial majority where the facts clearly show that the employees are divided between two organizations, neither of which has a majority. The dispute with respect to engineers, firemen, and hostlers should be dismissed without prejudice to the right of either organization to file a petition for election whenever it can make a prima facie showing that it is the designated representative of a majority of the employees. INTER-OFFICE COMMUNICATION Date: September 23, 1939 To: Mr. Leiserson. From: Edwin S. Smith. Subject: Your memorandum of September 20 re F. E. Booth & Company. I have been over Mrs. Rosseter's supporting memorandum on objections dated September 16 and also her memorandum to Mr. Witt dated September 18, as well as looking through the files on the same case. Like you, I am disturbed at the delay in making the final report on these cases, and I think Mrs. Rosseter should be asked about the reason for the delay, although I can well understand the difficulties that the investigator was under because of the considerations set forth by Mrs. Rosseter in her letter of September 5 to Mrs. Stern. I find nothing "ridiculous" in the fact that the memorandum presents evidence of lack of impartiality and inefficiency by the Board's agents in the conduct of the election. I think it is quite proper for the Director to present the Board with such facts and quite improper if this were not done. The evidence that our agents did not conduct the election with thorough impartiality as well as the evidence of employer interference set forth in the report on objections and the supporting memorandum indicate to me quite clearly that the Board should not certify the results of the election. Inasmuch as the conduct of the Board's agents is involved, it seems to me that we could well set aside the election on our own motion without going through the time-consuming process of a hearing. Attached hereto is a copy of my dissenting opinion in this case. GENERAL ELECTRIC COMPANY. R-1462 WML Mr. William M. Leiserson, dissenting: I am of the opinion that the petition of the General Electric Industrial Union should be dismissed. It is undisputed that Local 203 is the duly designated and authorized representative of the employees and is so recognized under a valid contract with the Company. Local 203 secured the right to act as representative by an election in which a clear majority of the employees designated it as their exclusive representative. The Industrial Union which lost that election now attempts to raise a question concerning representation, but in support of its petition it makes no showing that a majority of the employees now desire a change of representatives. I think it is incumbent upon the Industrial Union to make a prima facie showing that it now represents a majority. As the record stands, there is no evidence to show that the Industrial Union is desired as a representative by any more employees than the minority which voted for it in the last election. Under these circumstances I do not think that the Board is justified in finding that a question of representation exists requiring the ordering of an election. To: Mr. Madden. Mr. Smith. Mr. Emerson. INTER-OFFICE COMMUNICATION From: Wm. M. Leiserson. Subject: Globe Newspaper Company, R-1413. Date: Sept. 25, 1939. Attached hereto is a copy of my dissenting opinion in this case. WML GLOBE NEWSPAPER COMPANY, R-1413 Mr. William M. Leiserson, dissenting: The Guild has a contract with the Company by which the appropriate bargaining unit is established as covering editorial and maintenance employees but not those in the commercial departments. It is undisputed that the Guild is the authorized and exclusive representative of the editorial and maintenance employees, and it is admitted that in the commercial departments a majority of the employees have not indicated they desire representation by the Guild. I am of the opinion, therefore, that no question concerning representation is presented to the Board with respect to the employees in the appropriate bargaining unit covered by the existing contract, i. e., editorial and maintenance employees. The only dispute as to representation concerns the employees of the commercial departments. Under these circumstances the duty of the Board is to order a vote among these employees only. If the Guild is chosen as their representative, it may then by collective bargaining with the Company combine commercial employees with the others into a single bargaining unit under a single contract. The order in the majority decision that the commercial employees shall vote together with the editorial and maintenance employees is a mere device for enabling the Guild to secure the right to represent the employees in the commercial departments even though a majority of the commercial employees do not desire such representation. The fact that on other newspapers the Guild's contracts include commercial employees with the others in a single unit does not seem to me to justify the Board in ignoring the contract in the case before us which excludes the commercial employees. Nor is the Board justified in ignoring its own previous decisions holding that employees in the commercial departments may constitute a separate appropriate unit. In the Milwaukee Publishing Company case1 the Board ordered commercial employees voted separately from editorial employees. The only difference between the two cases is that in the earlier one another labor organization contended for the right to represent commercial employees. However, if the Board has the authority to merge the commercial employees with the others, it has the same authority whether another organization is contending for the right to represent commercial employees or not. In the present case a majority of the commercial employees have not indicated that they desire the Guild to represent them. In the Milwaukee Publishing Company case there was a claim that some of the commercial employees wanted an Office Workers Union to represent them rather than the Guild. A difference like this does not seem to me to indicate anything as to the appropriateness of a bargaining unit under the Act. If a separate vote of commercial employees was justified in the first case, it is justified also in the present case. I am of the opinion that the decision ordering the commercial employees to be merged with the others for the purpose of voting is arbitrary and not in accordance with any express or implied principle or policy contained in the National Labor Relations Act. 110 N. L. R. B. 369. To: Mr. Madden. INTER-OFFICE COMMUNICATION Date: Nov. 6, 1939. Mr. Smith. Mr. Emerson. From: Wm. M. Leiserson. Subject: Omaha and Council Bluffs Street Railway Company, C-1039. It seems a rather futile gesture to find an 8 (1) here while dismissing all the rest of the charges. I would dismiss the whole complaint. INTER-OFFICE COMMUNICATION WML Date: Sept. 30, 1939. To: Mr. Madden. Mr. Smith. Mr. Emerson. From: Wm. M. Leiserson. Subject: Walgreen Co., R-1362. Attached hereto is a copy of my concurring opinion in this case. Please note on page 5 of the tentative draft that the use of the term "warehouse" may be confusing. It might be taken to mean that the association bargained informally only for the employees in the warehouse division and not for those in the candy division. WML WALGREEN CO., R-1362 Mr. William M. Leiserson, concurring: I agree that two separate ballots should be spread, (1) among the employees of the warehouse division, (2) among the employees of the candy division; but I am of the opinion that a definite finding should be made before the election is held that these two divisions constitute appropriate bargaining units. To: Mr. Madden. Mr. Smith. Mr. Emerson. INTER-OFFICE COMMUNICATION From: Wm. M. Leiserson. Subject: Foster Bros. Mfg. Co., C-1209. Date: Oct. 3, 1939. I should want an opinion from the General Counsel as to whether this decision runs counter to the Fansteel decision and the McNeely & Price decision before I signed this. If the Legal Division will want to proceed in the courts with this case in order to clear up some point about sit-down strikes, I would agree. I do not think we should issue an order in a case like this and then if it is disobeyed later change our minds because the Legal Division thinks it is weak. On page 9 the statement is made that "Huebner was not called as a witness." But on page 11 it is stated "Huebner testified." On page 28 the agreement is quoted stating that no complaint or charge of unfair labor practices occurring prior to April 5, 1938, shall be made. Does this have the effect of withdrawing any such charge that was filed with the Board? If this constitutes a withdrawal of charges, then there may be a question as to whether the Board can act without a charge. I have made a few other pencil notes in the margins of the tentative draft, but they are not very important. WML |