in its original Direction of Election. No objections were directed to the fairness and impartiality of the conduct of the election, nor to the accuracy of the Regional Director's report on the results of the election. On February 23, 1940, the Regional Director, acting pursuant to Article III, Section 9, of said Rules and Regulations, prepared and duly served upon the parties a Report on Objections to Election Report, in which he found that the objection regarding the seven challenged ballots was without merit because the ballots could have made no difference in the result of the election; and that none of the objec tions raised any substantial or material issues with respect to the conduct of the ballot. The Board hereby affirms his ruling. The Election Report reveals that neither of the competing labor organizations received a majority of the votes cast, but that a substantial majority of the employees voting desire either Local No. 1702 or the Independent to bargain collectively with the Companies for them. Local No. 1702, the organization which received a plurality in the election, has requested a run-off election and both the Independent and the Companies have requested that the Independent be included on a run-off ballot. In the past it has been the Board's practice in such circumstances to direct a run-off election dropping from the ballot the organization receiving the lower number of votes in the initial election and providing a place on the ballot to vote for or against the labor organization which received the plurality. For reasons hereinafter stated in the separate opinions of Mr. Smith and Mr. Leiserson, the majority of the Board are of the opinion that the Board's practice in this respect should be changed, and that hereafter in run-off elections, under the circumstances here involved, the ballot should contain the names of both organizations but no place in which to vote again for "neither." The organization receiving the higher number of votes in the run-off election will be certified as exclusive bargaining representative. Accordingly the Board will direct a run-off eleccion in which the employees will be given the opportunity to decide whether they desire to be represented by Local No. 1702, Amalgamated Association of Iron, Steel & Tin Workers of North America or by Independent Employees Organization for the purposes of collective bargaining." SECOND DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, and pursuant to Article III, Sections 8 and 9, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation authorized by the Board to determine representatives for the purposes of collective bargaining with R. K. LeBlond Machine Tool Co. and Cincinnati Electrical Tool Co., Cincinnati, Ohio, an election by secret ballot shall be conducted as early as possible but not later than thirty (30) days from the date of this Second Direction of Election, under the direction and supervision of the Regional Director for the Ninth Region, acting in this matter as agent for the National Labor Relations Board and subject to Article III, Section 9, of said Rules and Regulations, among the employees described in the Direction of Election issued January 30, 1940, but excluding those who have since quit or been discharged for cause, to determine whether they desire to be represented by Local No. 1702, Amalgamated Association of Iron, Steel & Tin Workers of North America, or by Independent Employees Organization, for the purposes of collective bargaining. Mr. Edwin S. Smith, concurring: I still adhere to the opinion expressed by the majority in the Coos Bay Lumber case that the holding of a run-off election is unquestionably within the authority of the Board under Section 9 (c) of the Act. I am also still of the opinion, for 3 See Matter of Selby Shoe Company, Portsmouth, Ohio and Portsmouth Printing Pressmen & Assistants' Union No. 296 of the I. P. P. & A. U. of N. A., 16 N. L. R. B., No. 49. 4 See Matter of Interlake Iron Corporation and Amalgamated Association of Iron, Steel and Tin Workers of North America, Local No. 1657, 4 N. L. R. B. 55, and subsequent cases. See also Matter of Coos Bay Lumber Company and Lumber and Sawmill Workers Union Local No. 2573, 16 N. L. R. B. No. 50. The New York State Labor Relations Board has adopted a similar form of run-off ballot. See Hotel St. George and Hotel & Residence Club Workers Industrial Union of Brooklyn, Local 28, Case No. SE 3353, October 10, 1939, 5 L. R. R. 162. The Independent's request for another election under the same terms and conditions as were prescribed in our original Direction of Election is in all other respects denied. Section 9 (c) provides that, in determining whether representatives bave been selected for collective bargaining, the Board "may take a secret ballot of employees, or utilize any other suitable method to ascertain such representatives." the reasons there expressed, that the device of holding a run-off election is sound and practical as a matter of policy. In my opinion, however, the Board's past practice with respect to the form of the run-off ballot should be modified." The occasion for holding a run-off election arises, as has been previously observed, out of the Board's practice of affording an opportunity on the original ballot to vote for "neither" organization. As a consequence of using such a ballot it may happen that, although an overwhelming majority of the employees vote for one or another of the organizations on the ballot, a small number of votes for "neither" will result in neither organization obtaining a majority. The objective of a run-off election is to permit a further opportunity for the selection of a representative and thus prevent the small number of employees who desire no representation from thwarting the wishes of the great majority who do desire collective bargaining. It seems to me that a run-off ballot which provides simply for a choice between the rival labor organizations is best adapted to accomplish the objectives of the Act. In the original election 502 of the 555 eligible employees voted for representation by either Local No. 1702 or by the Independent and only 44 voted against such representation. I interpret this vote as meaning that the great majority of voters wish to bargain through some collective representative. In view of this expression of the wishes of the majority in the first election, I would consider that the issue of whether there is to be no collective representative is now determined, and consequently would omit from the run-off ballot opportunity to vote again on that question. It is urged that it is erroneous to assume that those who voted for either Local No. 1702 or the Independent in the original election desire collective bargaining irrespective of the organization selected as representative for such purposes. I do not see the force of such an objection. I am not willing to assume that the rivalry between the membership of two labor organizations is normally so intense that the adherents of each would prefer no collective bargaining to collective bargaining through the other organization. In any event, in view of the manifest policy of the Act to "encourage the practice and procedure of collective bargaining," I think any doubt should be resolved in favor of the presumption which is more likely to result in the choice of some collective representative. Par It should be noted, further, that the procedure of dropping one organization from the run-off ballot eliminates the possibility of the employees choosing that organization as their representative and forces upon them the alternative of voting for the other organization or relinquishing all right to collective bargaining. ticularly when the number of votes separating the two organizations on the first ballot is small-in this case it amounts to only 30 votes out of 555-such an alternative does not seem to have appealed to labor organizations as a reasonable method of assuring complete freedom in choosing representatives." Signed at Washington, D. C., this day of March 1940. 10 EDWIN S. SMITH, Member. Mr. William M. Leiserson, concurring in part and dissenting in part: For reasons explained in my dissenting opinion in the Coos Bay Lumber case I cannot agree with the ruling of the majority directing a run-off election. I am of the opinion that the Board is not authorized by the Act to order a run-off election for the purpose of creating an artificial majority when an election results in no majority for any representative. The fact that the two members of the Board who believe they have authority to order run-off elections cannot themselves agree on which one of the many kinds of run-off ballots to use seems to me clear evidence that the run-off is a controversial device which the Board should not assume authority to order. If Congress had intended that run-off elections should be held, it would have prescribed the particular form of run-off ballot. Cf. my dissenting opinion in Matter of Interlake Iron Corporation, supra. 8 Matter of Coos Bay Lumber Company, supra. While it is not necessary to determine the issue in this case, I would drop the "neither” from the run-off ballot in any case where the "neither" votes in the first election constituted less than a majority, whether or not they constituted a plurality. Thus, in the hypothetical case cited in the opinion of Chairman Madden, even though there were 49 votes for neither, the 45 votes for A union and the 6 votes for B union, totalling 51, show in my view a majority in favor of some form of collective bargaining and settles the issue of whether the employees are against any collective representative. The narrowness of the margin by which the issue would be determined in such a case seems to me irrelevant. Cf. my dissenting opinion in Matter of Interlake Iron Corporation, supra. 10 Matter of Coos Bay Lumber Co., supra. Since the prevailing opinion does order a run-off, however, I favor placing on the ballot only the names of the two organizations which have been designated by employees to represent them for collective bargaining. I would drop the "neither" from the ballot. Those who desire no collective bargaining whatever had their opportunity to express their opinion in the election, and it was only a small minority, less than 8 per cent, who voted against any representation for collective bargaining. I do not think that we have the authority to order the kind of run-off ballot that we happen to favor, and I express an opinion on the matter only because the majority of the Board has directed that a run-off election be held. Signed at Washington, D. C., this day of March 1940. WM. M. LEISERSON, Member. Chairman Madden, concurring in part and dissenting in part: I concur with Mr. Smith in the view that the holding of a run-off election is within the power of the Board and is sound as a matter of policy. Since these issues were fully discussed in the Coos Bay Lumber case, I do not consider it necessary to deal with them further here. I do not agree, however, with the proposal to eliminate all place on the ballot in which to vote against representation by any labor organization. An election conducted by the Board under Section 9 (c) is in some respects quite different from a political election. In the latter it is essential that some representative be designated and the ballot is framed accordingly. The National Labor Relations Act, however, does not compel employees to bargain collectively if a majority do not wish to do so. Consequently the Board provides a place upon the ballot in the original election where the employees may vote “against”. the labor organization involved, if only one labor organization appears upon the ballot, or for "neither" or "none" of the labor organizations involved, where two or more appear on the ballot. In the absence of a ballot so framed employees who wished to have no collective representative would have no means of expressing their choice and thus a collective representative might be forced upon the employees despite the wishes of a majority." It seems to me fully as important to provide a place on the ballot in which to vote against all collective representation in a run-off election as in the original election. The majority, however, propose to deny any such opportunity. The result may well be, in many cases, that a particular labor organization will be forced upon the employees although a majority would in fact prefer no collective representation but have had no means of expressing such a choice. This does not seem to me to afford that freedom of choice which is contemplated by the Act. Mr. Smith and Mr. Leiserson argue that the 266 votes cast for Local No. 1702, and the 236 votes cast for the Independent may both be taken as votes in favor of collective bargaining regardless of which organization is representative for such purposes. I think that assumption unwarranted, particularly in view of the prevalent inter-union rivalry which has frequently engendered a more virile partisanship for particular labor organizations than for the general objectives of collective bargaining. It may well be that the persons who voted for either of the labor organizations here involved would prefer to join the 44 persons who voted for neither organization, rather than be represented by an organization not of their primary choice. Yet, by the form of ballot adopted, the opportunity to register that preference is denied them and the selection of one of the rival organizations as majority representative is assured. The majority position does not mean that the interest receiving the smallest number of votes in the original election will be dropped from the run-off. It would equally require that the interest receiving the largest number of votes, or the second largest number, be dropped, if that was the "neither" interest. Thus the result of the first election in a unit of 100 eligible voters might be 49 votes for neither, 45 for A union, and 6 for B union. The theory of the majority would compel it to drop the "neither" on the run-off ballot and permit a vote only for A union or B union. The effect of this is to disfranchise all those employees whose point of view received the highest number of votes in the first election. 11 It is true that the employees desiring no collective representative could refrain from voting. However, both the Board and the courts have held that only a majority of those voting, rather than a majority of those eligible to vote, is necessary to select a representative. Consequently, refraining from voting would not be effectual to indicate a desire for no collective representative. For the foregoing reasons I think the Board should adhere to its former practice of directing a run-off election which permits the eligible employees an opportunity to vote for or against the labor organization which received a plurality of the votes in the original election." To: J. WARREN MADDEN, Chairman, NLRB-Washington, D. C. Confidential In order to create a better feeling between industry and the Board in the State of Iowa I have completed arrangements whereby Examiner Vogt will, in the future, cover only such sections of this state where industry is not hostile to his participation in industrial disputes. Examiner Oscar Smith is taking over the remaining cases which Mr. Vogt has been handing in this area. I feel certain that with this new arrangement we shall have no more of these complaints. LCB: vm LEONARD C. BAJORK. EXHIBIT No. 1300 FEBRUARY 23, 1938. Honorable CLYDE L. HERRING, United States Senate, Washington, D. C. DEAR SENATOR HERRING: Mr. Leonard Bajork, our Regional Director in Chicago, advises me that he has rearranged the work of his examiners in an effort to eliminate such criticisms as have come to us through you, concerning the work of Examiner Herbert J. Vogt. I am indebted to you for calling these criticisms to our attention so that they could be investigated. Subject: Lake Shore Tire & Rubber Company, Case No. XIII-C-619. While in Chicago I received your memorandum relative to a complaint against Vogt. I also looked over a report which was being drafted to send to the Board 12 Where more than two labor organizations are involved in the first election I would, of course, follow the practice enunciated by the Board in Matter of Aluminum Company of America and Aluminum Employees Association, 12 N. L. R. B. 237. on the case. I believe that report satisfactorily closes the matter. However, you told me that the Chairman wrote to Senator Herring stating that Vogt would be assigned no more cases in Iowa. It later occurred to me that Vogt is still handling a few cases in southeastern Iowa where he has had no trouble heretofore. If the Chairman's statement was a definite commitment perhaps you ought to call this to Bajork's attention unless you or the Chairman have already done so. I might add parenthetically, although I believe I told you this before, that after going over several complaints point by point with Vogt I felt the reports sent to the Board were not as strong in support of Vogt as they might have beensome points in the complaints were not specifically answered and some important details were not included in the report. If you have an opportunity to talk with Vogt I believe you will conclude that he is not essentially a trouble maker. To: Nathan Witt. EXHIBIT NO. 1302 [Copy] INTER-OFFICE COMMUNICATION NATIONAL LABOR RELATIONS BOARD R. M. G. Date: March 12, 1938. From: Leonard C. Bajork. Reference is made to our discussion of wage adjustments and increases for the administrative personnel of this office. I gather from what you have said that the Board has already considered the wage scales of our examiners. However, I don't recall your stating that the Board has already decided not to grant any increases, and presume, therefore, that it will be appropriate at this time to lay before you a formal request for wage adjustments and increases for the following people: Herbert J. Vogt.-This man leads the examiners in the satisfactory adjustment and disposition of cases in this region. His excellent record and the fact that his background suits him well for the work that he is doing, certainly merits an increase of $400, which would bring his rate of pay to $3600. Mr. Herbert J. Vogt, the bearer of this letter, is a Field Examiner of the Board, attached to our Chicago Regional Office. He will be, after his return from Europe, at our Minneapolis Office. The Board would be greatly pleased if you could help Mr. Vogt to inform himself about labor relations in your country and community so that the Board and its staff may have the benefit of your experience in this field. We hope that you may continue to have success and satisfaction in your important work. Very truly yours, J. WARREN MADDEN. |