A & P Iron Works, Inc.

National Labor Relations Board - Board Decisions

Oct 23, 1969

179 N.L.R.B. 291 (N.L.R.B. 1969)

A & P IRON WORKS, INC. 291
A & P Iron Works, Inc. and A & P Iron and Railing
Corp . and Shopmen 's Local Union No. 455,
International Association of Bridge , Structural and
Ornamental Iron Workers, AFL-CIO and Local
No. 819 , International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America . Case 29-CA-1164-1, -2
October 23, 1969
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On March 4, 1969, Trial Examiner Horace A.
Ruckel issued his Decision in the above-entitled
proceeding, finding that the Respondents had
engaged in and were engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
they cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. The Trial Examiner also found
that certain other unfair labor practices alleged in
the complaint were not properly included therein
and should be dismissed. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, with the following modifications.
The Respondents, a single employer for purposes
of the Act, were alleged, inter alia , to have violated
Section 8(a)(1), (2), and (3) of the Act during the
period of July-September 1967, by unlawfully
assisting Teamsters Local 819 in gaining
representative status among Respondents' employees
and by thereafter entering into a
collective-bargaining agreement, containing a
union-security clause, with Local 819. The Trial
Examiner found that these violations occurred as
alleged and recommended that Respondents be
ordered to withdraw recognition from Local 819 and
cease giving effect to the bargaining agreement. The
Respondents have not excepted to these findings and
recommendations, and we shall adopt them. The
complaint also alleged that, by withdrawing
recognition from the incumbent representative,
Shopmen's Local Union No. 455, during this same
period, the Respondents violated Section 8(a)(5), the
provision which requires employers to bargain
collectively with the representative of their
employees. In considering this portion of the
complaint, the Trial Examiner concluded that
Section 10(b) of the Act' applied so as to prohibit
inclusion of an 8(a)(5) allegation in the complaint.
The grounds for the Trial Examiner's decision on
this point will be described in more detail below.
The General Counsel has excepted to the Trial
Examiner' s ruling that Section 10(b) precludes a
finding of an 8(a)(5) violation, and he urges that, in
any event, Respondents should be ordered to
bargain with Local 455 on the basis of the other
violations here found. We shall set out the relevant
facts briefly, and then deal with the issues of law.
A & P Iron Works, Inc., manufactures and sells
structural iron, steel, and related products. A & P
Railing Corp. manufactures and sells ornamental
iron railings and related products. As previously
noted, Respondents constitute a single integrated
business enterprise.
Since 1959, Iron Workers Local 455 has been the
exclusive bargaining representative in separate,
admittedly appropriate, production and maintenance
units at each Respondent. Iron Works' unit is
composed of about five employees, and Railing's of
about 20 employees. Local 455's last contracts
covering the above employees expired on June 30,
1967, on which date Local 455 struck Respondents
and approximately 200 other companies in the
industry. Although the industrywide strike lasted
until October, Respondents' employees began to
abandon it early on, so that most had returned by
the end of the second week. Some returned in
response to calls from Arthur Wile, who had been
shop steward for 455 at Railing for several years,
and Thomas Thompson, who was the shop steward
at Iron Works. On July 11, Wile and Thompson
initiated the signing of an anti-455 petition. Wile
used the services of an office employee to type the
petition, which stated that" ...the undersigned .. .
no longer wish to be represented by Iron Workers Local
UnionNo. 455 in any collective bargaining." The
petition was left on a table in the shop and a
majority of the employees in the two units signed it
on July 11. According to the testimony of
Respondents' Vice President Forelli, Wile then
showed him the document and Forelli told Wile to
get in touch with the Board office and find out what
to do with it. Forelli denied knowing anything about
the origin of the petition, other than admitting that
he "felt" something was going on in the shop.
On July 12, Forelli drove Wile and Thompson to
the Board's Brooklyn office where the latter two
filed decertification petitions, and Forelli filed a
refusal-to-bargain charge against Local 455.
By Friday, July 14, approximately 19 of the 25 or
26 employees in the two units had returned to work,
and the strike was effectively abandoned.
'Section 10(b) states, in part - [N]o complaint shall issue based
upon any unfair labor practice occurring more than six months prior to the
filing of the charge with the Board
179 NLRB No. 50
29 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On Monday, July 17, Forelli posted a notice on
the bulletin board to the effect that Arthur Wile had
been made a foreman. The evidence supports a
finding that Wile thereupon became empowered to,
and did, exercise supervisory powers, and,
furthermore, that Respondent held Wile out to the
other employees as possessing supervisory status. On
this same day, Arthur Wile placed authorization
cards for Teamsters Local 819 on a desk in the shop
and told a number of employees that the cards were
there and they could "do what they wanted" with
them. About 20 employees, which constituted a
majority of the unit, signed cards; these were turned
over to Marvin Hafter, business agent for Local
819. Some of these cards were returned to Hafter by
Wile.:
On July 18, the incumbent Local 455 filed a
petition for certification in the two units, and also
filed charges of 8(a)(1), (2), and (5) against the
Respondents, alleging a refusal to bargain in good
faith based on the Employer's alleged efforts to
bring in Local 819 and oust Local 455.
On July 19, Local 819 filed petitions for
certification based on the signed authorization cards.
On July 27, the employees met with Local 455.
There is testimony in the record that, at this
meeting, the employees expressed dissatisfaction
about 455's handling of the strike issues; agreed to
form a separate committee for bargaining with
Respondents, the employees to have the final say as
to the terms of any proposed contract; and
expressed a desire to remain with Local 455 and to
withdraw their decertification petitions. There is
contrary testimony as to the latter issue, to the
effect that the employees did not express a desire to
remain in 455, but the Trial Examiner does not
discuss the conflict in testimony. The following day,
July 28, Local 819 held a similar meeting which a
number of the employees attended, but about which
the record sheds no light.
On September 12, the Regional Director
suggested to Local 455 that it withdraw its 8(a)(1),
(2), and (5) charges. The Union withdrew all the
charges.
On September 15, the Regional Director
consolidated the cases concerning the petitions for
certification filed by 819 and the decertification
petitions filed against 455.
On September 20, requests by the parties to
withdraw the four petitions were granted by the
Regional Director. Local 819 contended to the Trial
Examiner that it withdrew its petitions for
certification in reliance on the Regional Director's
action in finding Local 455's 8(a)(5) charge to be
unsubstantiated.
On September 22, following a strike of a few
hours, Local 819 was recognized by Respondents on
The Trial Examiner found that the conduct of Forelli and Wile on July
I I and 12, and the action of Wile on July 17, constituted violations of
Section 8 (a)(2) The Respondent has not excepted to these findings, and we
adopt them pro forma
the basis of the aforementioned authorization cards.
Local 819 and Respondents entered into a
bargaining agreement on the same day.
On November 29, 1967, having previously
withdrawn the 8(a)(1), (2), and (5) charges which it
had filed on July 18, Local 455 again filed charges,
this time alleging violations of 8(a)(1), (2), (3), and
(5). The 8(a)(5) charge alleged that the refusal to
bargain consisted of bargaining and signing a
contract with Local 819 in September "while there
was a valid outstanding claim of representation by
Local 455." The charge also alleged that
Respondents had, by coercion and promises, caused
their employees to join Local 819. On the basis of
this charge, the Regional Director, on February 28,
1968, issued a Consolidated Complaint, but it
included only the 8(a)(l), (2), and (3) charges. The
Regional Director recommended that Local 455
withdraw the 8(a)(5) charge, and this was done.
Respondents filed an answer to the complaint.
On May 13, 1968, after expiration of the 10(b)
period running from the signing of the September
contract, the 8(a)(5) charge was reinstated by Local
455 on the Regional Director's recommendation that
455 rescind its February 1968 withdrawal of its
November 1967 8(a)(5) charge. On May 22, the
Regional Director issued an Order Rescinding
Approval of Request for Partial Withdrawl of
Charges, which in effect reinstated the charge as
originally filed on November 29. He further issued
an Amended Consolidated Complaint which added
the now-approved 8(a)(5) allegation to the
aforementioned Consolidated Complaint.
As indicated, the Trial Examiner found that
Respondent violated 8(a)(1), (2), and (3), based upon
Wile's efforts on behalf of Local 819, and upon the
union-security contract entered into with an assisted
union. However, he dismissed the 8(a)(5) allegation
on the ground that it was based on a charge filed
outside of the 10(b) period. In addition, the Trial
Examiner, while finding that the aforementioned
8(a)(5) finding was closely related to the 8(a)(2)
activities, refused to issue a bargaining order as a
remedy for the 8(a)(2) violations, on the ground that
doing so would circumvent Section 10(b) and unduly
harass Respondents
In the Trial Examiner's view, once the November
1967 8(a)(5) charge was withdrawn in February
1968, it could not be later reinstated at a date
outside of the 10(b) period (which ended in March
1968) without a showing of equitable considerations
favoring such reinstatement, citing Silver Bakery
Inc. of Newton, 150 NLRB 441, revd. 351 F.2d 37
(C.A. 1), and Koppers Company, Inc, 163 NLRB
No. 64 Finding that no such equities were present
in this case, the Trial Examiner ruled that Section
10(b) required the exclusion of the 8(a)(5) allegation
of the complaint.
The General Counsel contends to the Board that
the Section 8(a)(5) allegation may be included in the
complaint because the alleged failure to bargain in
A & P IRON WORKS, INC.
good faith is "closely related" to the Section 8(a)(2)
charge which was filed in November 1967, within
the 10(b) period, and never withdrawn by Local 455.
He maintains that the fact that the 8(a)(5) charge
was "initially alleged, then withdrawn, then
reinstated," in the words of the Trial Examiner, did
not prejudice the Respondents and is not material in
a situation in which related charges were timely filed
and continuously pending thereafter. Cf. N.L.R B.
v. Dinion Coil Company, Inc., 201 F.2d 484 (C.A.
2), N.L R B v Pecheur Lozenge Co., Inc , 209 F.2d
393 (C.A. 2) The General Counsel argues further,
citing H.L H Products, 164 NLRB No. 61, enfd.
396 F.2d 270 (C.A. 7), that even if Section 10(b)
proscribed the finding of an 8(a)(5) violation, a
bargaining order running to Local 455 would
nonetheless be justified here, in order to remedy the
8(a)(2) violations committed by the Respondents.
After reviewing all the evidence of record,
however, we have concluded that a determination of
the 10(b) issue would serve no useful purpose in this
case, for we do not believe that a bargaining order
would be an appropriate remedy on these facts. We
note the following evidence: (1) that on July 11, a
majority of Respondents' employees signed a
petition stating that they no longer desired the
incumbent Local 455 to bargain for them, and that
although Respondents, through Wile, at that time
not yet elevated to supervisory status, may have lent
some technically unlawful assistance in the
preparation of this petition, there is no indication in
the record that any of the employees who signed
were aware of such assistance or were otherwise
coerced into signing; (2) that by July 14, most of
Respondents' employees had abandoned Local 455's
strike, which persisted throughout the industry until
October; and (3) that the employees appear to have
been uniformly dissatisfied with the manner in which
Local 455 had been representing them, to a point
where that Union, on July 27, offered to allow
Respondents' employees to form their own
negotiating committee with ultimate authority over
contractual terms. These facts indicate both that
Respondents had an objective basis for doubting the
continued allegiance of their employees to Local 455
in July 1967, and that the presumption of majority
status arising from Local 455's status as the
incumbent bargaining representative has been
effectively rebutted. Frito-La v, Inc, 151 NLRB 28;
cf. Laystrom Manufacturing Co., 151 NLRB 1482.
In these circumstances, there is no warrant for
finding a violation of Section 8(a)(5) or for issuing a
bargaining order to remedy other unfair labor
practices. We shall, however, as noted, adopt pro
forma the Trial Examiner's recommendations with
respect to the violations of Section 8(a)(1), (2), and
(3), and we shall order that Respondents comply
with his Recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
293
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, as
modified below, and hereby orders that the
Respondents, A & P Iron Works, Inc., and A & P
Iron and Railing Corp., Copiague, New York, their
officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's
Recommended Order, as herein modified:
Delete the period at the end of paragraph l(b) of
the Trial Examiner's Recommended Order and add
to said paragraph the following-
; provided, however, that nothing herein shall
require the Respondents to vary or abandon any
wages, hours, or other substantive features of their
relations with their employees which have been
established in such contract, or to prejudice the
assertion by employees of any rights they may have
thereunder "
TRIAL EXAMINER'S DECISION
Statement of the Case
HORACE A RUCKEL, Trial Examiner On July 18,
1967, Shopmen's Local Union No. 455, International
Association of Bridge, Structural and Ornamental Iron
Workers, AFL-CIO, herein called Local 455, filed an
unfair labor practice charge (Case 29-CA-1053) against A
& P Iron Works, Inc, and A & P Railing Corporation,
herein jointly called the Respondent, alleging violation of
Section 8(a)(1) and (5) of the National Labor Relations
Act, as amended (29 U.S.C Sec. 151, et seq ), herein
called the Act. Simultaneously, Local 455 filed a
representation petition (Case 29-RC-822). After
investigation by the Regional Director for Region 29, no
complaint was issued against Respondent Instead, on
September 12, 1967, Local 455 requested and the
Regional Director granted, withdrawal in its entirety of
the charge in Case 29-CA-1053, and the petition in Case
29-RC-822 Concurrently, Respondent withdrew an unfair
labor practice charge (Case 29-CB-379-I-2) which it had
filed on July 12, 1967, a week prior to the filing of Local
455's charge in Case 29-CA-1053
Thereafter, until November 29, 1967, there was no
pending charge of unfair labor practice affecting
Respondent. On that date Local 455 filed another charge
against Respondent alleging violation of Section 8(a)(1),
(2), (3), and (5) of the Act, the last based on the same
activities set forth in the 8(a)(5) charge previously filed
and withdrawn, but including the signing of a contract on
September 22, 1967. Specifically, the charge asserted that
the Respondent signed a collective-bargaining contract
with Local 819, the party to the contract in the instant
case, while there was a "valid claim of representation by
Shopmen's Local Union No 455 "
After investigation of this charge, the Regional Office
on February 26, 1968, approved another Withdrawal
Request from Local 455, this time solely of the 8(a)(5)
portion of the charge (Case 29-CA-1164, -1, -2).
Thus the original consolidated complaint which had
issued on February 28, 1968, alleged only violation of
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 8(a)(1), (2), and (3) of the Act. Respondent filed
its answer and issue was joined Before proceeding to trial,
however, Local 455 on May 13, after the 10(b) period,
filed a first amended charge (in each of the two cases)
which restated in identical language the 8(a)(5) allegation
whose withdrawal the Regional Director had approved the
previous February 26 Accordingly, on May 22 the
Regional Director issued an Order Rescinding Approval
of Request for Partial Withdrawal of Charges This, it is
contended, serves to reinstate the 8(a)(5) charge of failure
to bargain withdrawn on February 29. This Order was
issued "by the undersigned (the Regional Director), upon
review of the evidence"' following which he concluded that
"a violation of Section 8(a)(5) occurred and that a
complaint thereon was warranted." Accordingly, the
amended consolidated complaint was issued
The hearing before me on the amended consolidated
complaint, dated May 22, 1968, now including an 8(a)(5)
allegation (whether based upon the first amended charge
of May 13, 1968, or the original 8(a)(5) charge filed on
November 29, 1967, withdrawn on February 26, and the
withdrawal "rescinded" on May 22, is not clear),' was
held at Brooklyn, New York,'from June 24 to July 2,
1968, at which all parties were represented by counsel and
participated in the hearing. At the conclusion of the
hearing the parties argued orally The General Counsel
has filed a timely brief.
Upon the entire record of the case and my observation
of the witnesses, I make the following.
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
Respondent A & P Iron Works, Inc , is a New York
corporation maintaining its principal office and plant at
20 Marconi Boulevard in Copiague, New York, where it
is engaged in the manufacture and sale of structural iron
and steel and related products During the year preceding
the issuance of the Amended Consolidated Complaint it
purchased and transported to its plant, iron and steel and
other materials valued in excess of $50,000, of which
goods and materials valued in excess of $50,000 were
The Order does not allege newly discovered evidence The evidence
reviewed , pertaining to the Respondent ' s alleged failure to bargain, resulted
in the specific 8(a)(5) allegations in the original complaint , with the added
allegation of signing a contract with Local 819 , which was done on
September 22 These activities , including the signing of the contract, were
known to Local 455, to Local 819, to the Respondent, to the employees,
and to the Regional Office when it issued the complaint of February 28,
and when the withdrawl of the 8(a)(5) charge was approved by the
Regional Director
'During oral argument counsel for the General Counsel characterized the
First Amended Charge as "surplusage " Nevertheless, upon filing of the
charge the Regional Director advised Respondent of its filing , stated that
he was investigating the matter , and asked Respondent to "state [its]
position with respect to the allegations of the amended charge," and to
"submit all documents , records , memoranda , affidavits, etc , which support
[its] position " It seems apparent that misgivings arose as to whether this
charge, setting forth matters occurring more than 6 months prior to its
filing, would support a complaint , since shortly thereafter , on May 22, the
Regional Director, as has been found , "rescinded" his action of the
previous September approving Local 455's withdrawal of its original
charge of refusal to bargain Though invited to do so, counsel for the
General Counsel failed at any time to state whether he was proceeding on
the alleged 8(a)(5) violation pursuant to the amendment to the original
consolidated complaint based upon the original charge, or upon the
amended consolidated complaint dated May 22, 1968 , and based , so far as
the alleged 8(a)(5) violation is concerned , upon the first amended charge
dated May 13, 1968
transported to its plant in interstate commerce directly
from States of the United States other than the State of
New York
Respondent Railing Corp. is a New York corporation
having its office and plant at 1104 Marconi Boulevard in
Copiague, New York, where it is engaged in the
manufacture and sale of ornamental iron railings and
related products During the year preceding the Amended
Consolidated Complaint it purchased and transported to
its plant iron and steel and other materials valued in
excess of $50,000, of which goods and materials valued in
excess of $50,000 were transported in interstate commerce
from States of the United States other than the State of
New York
Respondent Iron Works, Inc., and Respondent Railing
Corp are affiliated businesses ' with common officers,
ownership, and directors, and constitute a single
integrated business enterprise, with a common labor
policy
II THE LABOR ORGANIZATIONS INVOLVED
Local 455 and Local 819, herein designated as Party to
the Contract, are labor organizations admitting employees
of Respondent to membership.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
From about 1959 Local 455 has been the
collective-bargaining representative in two units, both
admittedly appropriate, namely the production and
maintenance employees at Iron Works and at Railing, and
has entered into successive, separate union shop contracts
with the Respondent Iron Works, at times material
herein, had 5 employees in the appropriate unit, and
Railing 20
Local 455's last contract with Respondent expired on
June 30, 1967, at which time Local 455 called a strike
against Respondent and all other employers in the
industry with whom it had contracts similarly expiring,
covering 4-5,000 employees in more than 200 shops
Respondent's employees accordingly ceased work
B. Respondent's Assistance to Local 819
I The status of Arthur Wile, and his activities
Wile had for 12 years prior to the hearing been
employed as a finisher at Railing and for several years
prior to the strike was shop steward for Local 455, as was
Thomas Thompson, a mechanic, for the unit employees at
Iron Works The record shows that for some time
previous to July 17, 1967, Clyde Wile, Arthur Wile's
brother, had been shop foreman while Arthur Wile
worked as a finisher The "working foreman" under Clyde
Wile was one Dick Penny. On July 17, it is conceded that
a notice was posted on the bulletin board by Andrew
Forelli, Respondent's vice president, stating that Arthur
Wile was as of that date a foreman. Clyde Wile was
transferred to the sales department, where he spent half of
his time, though he continued to work the other half as
shop foreman, according to Forelli's credited testimony
From the beginning of the strike various of
Respondent's employees abandoned it and returned to
work, so that all had returned by the end of the second
week, although the industrywide strike continued until the
A & P IRON WORKS, INC.
following October. The return of these employees was
accompanied by telephone calls to some of the strikers by
Wile and Thomas, suggesting that they should come back
to work.
On July 11, Wile used the services of one of the clerical
employees to type a "petition" to the Board's Regional
Office, in the following style.
We, the undersigned, who are employed by A & P Iron
& Railing Corp. no longer wish to be represented
by Iron Workers Local Union No 455, in any
collective bargaining.
Wile left a copy of this document on a table in the
shop, and on the same day 16 employees in the unit
signed it I find that supervision knew of these activities
and did nothing to discourage them. On the following day,
July 12, Wile and Thomas, together with Forelli, drove 60
miles in the latter's car to the Board's Regional Office in
Brooklyn where Wile and Thomas filed petitions to
decertify Local 455 at Respondent's two plants, and
Forelli filed a charge of unfair labor practices (refusal to
bargain) against Local 455 Later, the three drove back to
the plant.
On the following Monday, July 17, the day that
Respondent posted the notice announcing that Arthur
Wile had been made a foreman, Wile placed application
cards for membership in Local 819 on a desk in the shop,
and told several of the employees that they were there and
that they could do what they wanted with them Twenty
employees, a majority in the unit, signed these cards, and
they were turned over to Marvin Haftner, business agent
for Local 819' On July 19, Local 819 filed petitions with
the Regional Office for certification of Local 819, using
these cards as the basis for the petitions.
About the first week in August a meeting of the
employees was held at which both Haftner and Forelli
were present Various questions were asked concerning the
situation following the expiration of the contract with
Local 455 One allegation of the complaint is that Forelli
on this occasion promised the employees medical and
hospitalization insurance to induce them to abandon Local
455 and support Local 819 This turns out to have been a
question put to Forelli by an employee as to what would
happen to the existing insurance program, if Local 819 got
a contract, and a reply by Forelli that the coverage under
any other insurance policy would be "the same as what we
had with 455, if not just a little better." I find that under
the circumstances this did not constitute interference,
restraint, or coercion in violation of Section 8(a)(1) of the
Act There is no evidence in this record of any other
violation of Section 8(a)(1).
On September 15, 1967, the Regional Director,
pursuant to the decertification petitions filed by Wile, and
the two certification petitions filed by Local 819, issued an
order consolidating the cases for hearing, and scheduled
them for hearing September 21 On September 20,
however, the Regional Director cancelled the hearing and
granted requests for the withdrawal of the two
certification petitions filed by Local 819, and the two
decertification petitions filed by Wile pertaining to Local
455.
On September 22, 1967, Local 819, when there was no
charge of unfair labor practices and no representation
petition pending, and following a short strike called by
Local 819, submitted its 20 cards to Respondent and
'Haftner's testimony is that Local 819 first began the distribution of
cards to Respondent's employees during the first 2 weeks in July, after the
beginning of the strike
295
requested recognition Respondent, after checking the
cards against its payroll, granted it On the same day a
contract between the parties including a union-shop
provision and checkoff of dues,' was executed
2. Conclusions as to Arthur Wile's Employment
Status and Respondent's Assistance to Local 819
Concededly, Arthur Wile was named a foreman, and a
notice to that effect posted on July 17, 1967, by
Respondent. For some time prior thereto he had been
performing some supervisory functions as a "working"
foreman Regardless of the extent of his authority as a
working foreman, or as a foreman after July 17, it seems
clear that he was regarded by the other employees as
having supervisory status. However, the finding which I
make attributing to Respondent responsibility for his
activities does not rest solely upon his role as a
supervisory employee It is not disputed that he was
permitted by management, both prior to and following his
formal designation as "foreman," to encourage and assist
the efforts of Local 819 to supplant Local 455 as the
bargaining representative of the employees in the
appropriate unit The petition drafted by him for
submission to the Board's Regional Office was typed by
one of Respondent's clerical force on a company
typewriter and placed by Wile in a conspicuous place in
the shop for signing by employees Admittedly, Forelli
observed it and told Wile to get in touch with the Board's
Office and find out what to do with it. As a result, Wile
filed the petition, and shortly thereafter a petition for
decertification at Railing of Local 455, at the same time
Thomas, Wile's counterpart, filed a similar petition to
decertify Local 455 at Iron Works. Wile and Thomas
were driven by Forelli to the Board's office in Brooklyn,
where Forelli, on behalf of Respondent, filed a charge of
unfair labor practices against Local 455 while Wile and
Thomas filed their decertification petitions against Local
455 Shortly thereafter Wile was made "foreman" and
both he and Thomas continued as shop stewards, but now
for Local 819 instead of Local 455
In view of the above facts I find that Respondent
rendered assistance and support to Local 819 in violation
of Section 8(a)(2) of the Act.
C Alleged Refusal to Bargain
1. The 6-month statute of limitations
Section 10(b) of the Act having to do with the issuance
of a complaint following the filing of charges of unfair
labor practices, contains the following proviso
Provided, that no complaint shall issue based upon
any unfair labor practice occurring more than six
months before the filing of the charge with the Board .
unless the person aggrieved thereby was prevented
from filing such charge by reason of service in the
armed forces .
As has been found, the original charges of unfair labor
practices consisted of alleged violations of Section 8(a)(1),
(2), (3), and (5) of the Act. The alleged refusal to bargain
was said to consist of Respondent's negotiating with Local
819, beginning in July 1967, after the expiration of the
charging party's (Local 455) contract with Respondent,
and during negotiations for a new contract. This came to
'Similar provisions had been included in the previous contracts with
Local 455
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the attention of the Regional Director by reason of the
charges filed on July 18, 1967. This case was given the
number 29-CA-1053. It is not in dispute that these
charges were filed within a 6-month period following the
commission of the alleged unfair labor practices, including
the alleged refusal to bargain with Local 455
In accordance with the provisions of the Act and the
Board's Rules and Regulations, the Regional Office
investigated these charges and found them to be without
sufficient substance to warrant the issuance of a
complaint Consequently, Local 455, on September 12,
1967, asked to withdraw these charges in their entirety,
and the Regional Director, on the same date, complied
The 8(a)(5) charge, as well as the other charges, were out.
The charges in the case at bar (29-CA-1164-1-2) were
filed by Local 455 on November 29, 1967 They reiterated
precisely the charges previously withdrawn, alleging
violations of Section 8(a)(1), (2), (3), and (5) of the Act
These charges, too, were filed within the 6-month statute
of limitations. The events said to constitute a failure to
bargain and illegal assistance to Local 819 (bargaining
with Local 819, and signing a contract), occurred during
the month of September 1967 The 8(a)(5) charge was in
again for the second time. The Regional Director
investigated the charges This time he issued a complaint
entitled "Consolidated Complaint," in the instant cases
(29-CA-1164-1-2), dated February 28, 1968, alleging
violations of Section 8(a)(1), (2), and (3) of the Act.
Section 8(a)(5) was not included in the complaint because,
as the Consolidated Complaint recites, the Regional
Office, after investigation, recommended to the charging
party the "partial withdrawal" of its charges, namely the
charge of refusal to bargain. The charging party complied.
The 8(a)(5) charge was out again. The complaint as then
issued alleged only violation of Section 8(a)(1), (2), and
(3) of the Act Answers were filed and issues joined
Before proceeding to trial, however, the Regional
Director recommended that another charge be filed, to
include a violation of Section 8(a)(5) This was filed on
May 13, 1968, and on May 22 the Regional Director
issued an "Order Rescinding" his approval of requests for
the previous withdrawal of the 8(a)(5) charge. The charge
was in again On the basis of this Order the Regional
Director issued the Amended Consolidated Complaint
dated May 22, 1968 The 8(a)(5) charge was in again, but
the statute of limitation imposed by Section 10(b), had, it
would seem, expired
It must be remembered that the content of these several
charges of refusal to bargain is identical, namely
negotiation of a contract with Local 819 at a time when
Local 455 was seeking a renewal of its own contract I
have found that Respondent assisted Local 819 in
obtaining the membership application cards upon which
the recognition of Local 819 was based, in violation of
Section 8(a) (2) of the Act It is additionally contended by
the General Counsel that Respondent acted in violation of
Section 8(a)(5) of the Act Respondent and Local 819, on
the other hand, contend that the Board is barred from
making such a finding because the charges on which the
amended consolidated complaint is based were filed, as to
the 8(a)(5) matter, more than 6 months after negotiations
with Local 819 had been concluded and a contract signed,
facts known to all parties since September 22, 1967, and
for some time previously The charges of refusal to
bargain, upon which the 8(a)(5) section of the complaint
were issued, to come within the 6-month statute of
limitations period, would have had to be filed by March
22, 1968 They were not filed until May 13, when the
Consolidated Complaint became the amended
consolidated complaint, and issue joined. Respondent
moves that this section of the complaint should therefore
be dismissed
The General Counsel, although conceding this
continuum, points out that although the Regional Director
dismissed the 8(a)(5) charge of refusal to bargain, and
then "rescinded" this dismissal, both more than 6 months
after the alleged refusal to bargain, timely filed charges of
8(a)(l), (2), and (3) remained. Hence the limitation
imposed by Section 10(b) is not applicable, and the
rehabilitation of Section 8(a)(5) of the charge is
legitimized According to the General Counsel so long as
any timely filed charge of violation of any section of the
Act is on file in a Regional Office, a complaint concerning
any or all sections of the Act may be filed According to
this theory, if the sole extant charge is, for example, an
interrogation by a supervisor of an employee's interest in
a union, this is sufficient foundation for the subsequent
erection of the entire edifice of Section 8(a)(2), (3), (4),
and (5) charges at any time in the future and no matter
how unrelated it may be to the 8(a)(1) charge on file.
The General Counsel offers in support of this
contention Silver Bakery, Inc of Newton,' asserting
during oral argument that this case is "the last word in
this matter," and that "if there are equitable
considerations present' and if a charge timely filed is
totally withdrawn, it may be refiled or reopened effectively
and viably to support a complaint." The "last word," in
Silver Bakery, however, was spoken by the Court, which
reversed the Board, saying that Section 10(b) is an
ordinary statute of limitations, and that the "Board's
broad proposition that once a complaint has been filed
and dismissed only so-called equitable principles determine
when it can be revived" was "created out of whole cloth "
The court cited N L R B v. Electric Furnace Co , 329
F 2d 373; and Olin Industries, Inc , 97 NLRB 130 It
went on to say that the Board has no "roving discretion to
determine that so-called equities warrant the reinstitution
of the proceedings without limit of time."
But Trial Examiners follow Board, not court, decisions,
until the Supreme Court speaks. The board declares that
in Silver Bakery "The General Counsel acting in the
public interest - has virtually unlimited discretion to
proceed on charges as he deems fit in the exercise of his
office And there is nothing in the Act limiting his
authority to issue a complaint, once a charge is filed " It
is upon this language that the General Counsel bases his
contention, previously quoted The General Counsel,
however, qualifies his position by adding "If there are
equitable considerations," as does the Board which speaks
of "the equities of the case " The charging party in Silver
Bakery was the victim of an administrative foul-up, and
was prejudiced in finding a forum and a remedy through
no fault of his own and in spite of his best efforts
'351 F 2d 37, (C A I), reversing 150 NLRB 441
'In the Silver Bakery case the Charging Party filed a charge which the
Regional Office , after investigation, dismissed without prejudice for lack of
jurisdiction because the employer 's business did not meet the Board's
commerce standards Thereupon the aggrieved employee filed a charge
with the Massachusetts State Labor Relations Commission Subsequently,
evidence turned up showing that the employer ' s business did meet the
Board 's standards, and the Massachusetts Commission granted a motion
to dismiss the proceedings on the grounds that the Commission had no
jurisdiction and that the Board did have The Regional Director reinstated
the charges and reopened the case This was done 7 months after the
alleged commission of unfair labor practices
A & P IRON WORKS, INC.
There is no such situation in the case at bar. There are
here no "equities" on the side of the charging party. The
Regional Office on three different occasions, at the
instance of Local 455, investigated the facts It dismissed
the first case, including a charge of a failure to bargain
(29-CA-1053), in its entirety When the charges in the case
at bar were filed, the Regional Director again investigated
them and granted an order permitting Local 455 to
withdraw the 8(a)(5) charge, and issued a complaint
omitting this allegation. Finally, the Regional Director
attempted to "rescind" this action, and to "reinstate" the
refusal to bargain issue - but after the statute of
limitation had run There is no showing of hardship here,
at least on the part of the charging party, or any claim of
newly discovered evidence. During this entire period
Respondent was negotiating with Local 819, a fact known
to all the parties. It is here, in my opinion, that this case
is to be distinguished from Silver Bakery The General
Counsel has not demonstrated what equities should, under
Silver Bakery, allow the reinstatement of this particular
8(a)(5)
As I read the Board's decision in Silver Bakery, it is
narrowly drawn so that the equity of the situation is the
controlling factor in Koppers Company, Inc (163 NLRB
No. 64), the charging parties filed a charge which was
served on December 22, 1964, making the Respondents
liable for activities occurring after July 22, 1964, but
freeing them from acts preceding that date On January
27, 1965, however, the Regional Director approved the
withdrawal of the charge, but reinstated it on May 28,
1965. The Board held that on January 27, or any date
thereafter, the Respondents "had the right under the
statute to be assured that they would not be held liable for
activities occurring more than six months past," and that
"to permit the May 28 reinstatement of the December 22
charge to revive the Respondent Union's liability
would amount to a circumvention of the proviso to
Section 10(b)," citing Olin Industries, supra
If this reasoning can be applied to assure a party that
"on my given day his liability under the Act is
extinguished for any activities occurring more than six
months prior thereto" when the entire charge is
withdrawn, would not the same principles apply when
there is only a partial withdrawal of the charge as relates
solely to the part withdrawn9 Thus, in the case at bar,
when 6 months from the September date of the alleged
refusal to bargain there was no 8(a)(5) on file, was not
Respondent's liability extinguished for these 8(a)(5)
activities occurring more than 6 months prior9 The cases
cited by the General Counsel (except for Silver Bakery
where certain "equities" existed) are not concerned with
the reinstatement of a charge after the 10(b) period, but
rather with the later inclusion of a violation that was not
previously alleged in the charge In the case at bar the
8(a)(5) was initially alleged, then withdrawn, then
reinstated, a situation not present in Silver Bakery and
one which serves to fortify the observation by the Court
that the mere filing of a charge which is withdrawn . . . so
that no proceedings are pending,"' should not confer "a
roving discretion . to reinstate proceedings without
limit of time "
'The General Counsel selects out this phrase from the Court ' s decision,
and says that this means that if something were pending before the Board
the court would reach a different conclusion I read it only as a simple
statement of the facts of the case To infer more is to engage in sheer
speculation
297
It is noted further that in Silver Bakery, as the Board
pointed out, the Regional Director when he approved the
withdrawal of the charges stated that he did so "without
prejudice " In the case at bar the Regional Director, when
he granted Local 455's request to withdraw the 8(a)(5)
portion of the charge on which the complaint here issued,
did not state that he did so without prejudice The
conclusion is that approval was with prejudice The effect
of the words, "without prejudice" is to prevent the
dismissal from operating as a bar to a subsequent suit on
the same state of facts. When the dismissal is silent on the
subject I take it that the dismissal is with prejudice,
unless, perhaps, in the meantime equities have built up
which indicate that the matter should be considered on its
merits As has been seen, the Board in Silver Bakery
emphasized the equities of the matter together with the
fact that prior dismissal had been "without prejudice,"
using them on February 25, 1967 in this case when
approving Local 455's request to dismiss the 8(a)(5)
portion of its charge
Conclusions
I conclude that the 8(a)(5) allegations of the complaint
are not properly before me because the charge upon which
that part of the complaint is based was not properly filed
within 6 months of the completion of the contract
negotiations upon which the charge is founded I shall
recommend that the complaint in that respect be
dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondents set forth in section III,
above, occurring in connection with the operations of
Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
V THE REMEDY
I have found that the Respondent recognized Local 8 19
and entered into an agreement with it on October 1, 1967,
during the pendency of a question of representation, and
that by such conduct Respondent has interfered with,
restrained and coerced its employees in the exercise of
their right freely to select their own bargaining
representative and has accorded unlawful assistance to
Local 819 in violation of Section 8(a)(2) and (1) of the
Act. In order to dissipate the effect of the unfair labor
practices, I shall recommend that Respondent withdraw
and withhold all recognition from Local 819, and to cease
giving effect to the aforementioned agreement, or to any
renewal, modification or extension thereof, until such time
as Local 819 has been certified by the Board as the
exclusive representative of the employees in question
Nothing herein shall, however, be construed to require
that Respondent vary or abandon any existing term or
condition of employment.'
'It is apparent that the 8 (a)(5) matter here is closely related to the
8(a)(2) activities which I have found violated that section of the Act There
is authority for recommending an 8(a)(5) remedy, that is that Respondent
bargain with Local 455, to restore the status quo existing before the strike
I make no such recommendation here since to do so in the circumstances
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Because of the narrow scope of the unfair labor
practices found herein, I shall recommend a narrow cease
and desist order
Upon the basis of the foregoing factual findings and
conclusions, and upon the entire record in the case, I
make the following
CONCLUSIONS OF LAW
I Respondents A & P Iron Works, Inc , and A & P
Iron and Railing Corp are employers engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act
2. Local 455 and Local 819 are labor organizations
within the meaning of Section 2(5) of the Act
3 Respondents' production and maintenance
employees, including finishers, mechanics, experienced
shop helpers, inexperienced shop helpers and apprentices,
exclusive of office clerical employees, salesmen, guards,
professional employees and all supervisors as defined in
the Act, constitute a unit appropriate for the purpose of
collective bargaining within the meaning of Section 9(b) of
the Act
4. A question concerning representation existed among
Respondents' employees during the period from June l to
September 22, 1967, when Respondents signed the
agreement with Local 819
5 By recognizing and entering into a contract with
Local 819, while there was pending a question concerning
representation, and by enforcing and maintaining such
contract, which contained a union-security clause,
Respondents engaged in unfair labor practices within the
meaning of Section 8(a)(1), (2), and (3) of the Act.
6 The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this case,
I recommend that A & P Iron Works, Inc , and A & P
Iron and Railing Corp , its officers, agents, successors,
and assigns, shall
1 Cease and desist from
(a) Recognizing or contracting with Local No 819,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any successor
thereto, as the statutory representative of Respondents'
employees until such labor organization shall have been
certified by the Board
(b) Enforcing or maintaining its collective-bargaining
contract with Local 819, entered into on or about
September 22, 1967, or any modification, extension,
supplement, or renewal thereof unless and until said labor
organization shall have been certified by the Board as the
exclusive representative of Respondents' employees
(c) In any like or related manner interfering with,
restraining, or coercing Respondents' employees in the
exercise of the rights guaranteed them by Section 7 of the
Act.
2. Take the following affirmative action which I find
will effectuate the policies of the Act
of this case , including the repeated filing, withdrawing , refiling , reinstating,
and amending of the charges , would amount to a circumvention of the
6-month statute of limitations and an harassment of the Respondents
(a) Withdraw and withhold all recognition from Local
No 819, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, or
any successor thereto, and cease giving effect to its
contract with Local 819, unless and until such labor
organization shall have been certified by the Board as the
statutory representative of the Respondents' employees in
the appropriate unit.
(b) Post at appropriate places in Respondents' plants,
copies of the attached notice marked "Appendix "9 Copies
of said notice, to be furnished by the Regional Director
for Region 29, shall, after being signed by Respondents'
representative, be posted by Respondents immediately
upon receipt thereof and maintained by them for 60
consecutive days thereafter in conspicuous places,
including all places where notices to employees are
customarily posted Reasonable steps shall be taken by
Respondents to insure that said notices are not altered,
defaced, or covered by any other material
(c) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this
Recommended Order, what steps Respondents have taken
to comply herewith 10
IT IS RECOMMENDED that the allegations in the
complaint alleging a violation of Section 8(a)(5) of the
Act be dismissed
IT IS FURTHER RECOMMENDED that unless on or before
20 days from the receipt of this Decision and
Recommended Order, Respondents notify the Regional
Director that they will comply with the foregoing
Recommended Order, the National Labor Relations
Board issue an order requiring Respondents to take the
action aforesaid
'In the event that this Recommended Order be adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "a
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order be enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
'In the event that this Recommended Order be adopted by the Board,
this provision shall be modified to read "Notify said Regional Director in
writing within 10 days from the date of this Order what steps the
Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that
WE WILL NOT discourage membership in Shopmen's
Local Union No. 455, International Association of
Bridge, Structural and Ornamental Iron Workers,
AFL-CIO, or any other labor organization by
discriminating as to the hire, tenure, or other terms or
conditions of employment of any of our employees.
WE WILL withdraw and withhold all recognition from
Local No 819, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, as the exclusive representative of our
employees, and WE WILL NOT enforce the contract
entered into with such union on or about September 22,
1967, unless and until such union is certified by the
National Labor Relations Board as the exclusive
A & P IRON WORKS, INC. 299
bargaining representative of our employees Dated By
WE WILL NOT In any like or related manner interfere (Representative) (Title)
with the rights of our employees as guaranteed by
Section 7 of the Act This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered,
A & P IRON WORKS, INC defaced, or covered by any other material
AND If employees have any question concerning this notice
or compliance with its provisions, they may communicate
A & P IRON AND RAILING directly with the Board's Regional Office, 16 Court Street,
CORP Fourth Floor, Brooklyn, New York 11201, Telephone
(Employer) 212-596-5387