Associated Machines, Inc.

National Labor Relations Board - Board Decisions

Oct 13, 1955

114 N.L.R.B. 390 (N.L.R.B. 1955)

390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
will have any occasion to exercise their seniority rights? As it ap-
'pears that there is no reasonable prospect of reemployment of these
voters in the forming department , we find in agreement with the
Regional Director, that the employees in group 3 were permanently
laid off on the eligibility date, and were therefore not eligible to
vote.
The Board has considered the Regional Director 's report on chal-
lenged ballots and the exceptions thereto and hereby adopts the find-
ings and - recommendations of the Regional Director that the chal-
lenges to the ballots of the employees in groups 1 and 2 be overruled
and the ballots be opened and counted , and that the -challenges to the
ballots to the persons listed in group 3 be sustained.
[The Board directed that the Regional Director for the Eighth
Region shall , within ten (10) days from the date of this Direction,
open and count the ballots of Sam Burford , F. Grames, S; Grzey-
orczyk, B. Lehman, J. McGee, C., Shumate, E. Carpenter, Cecil Me-
Court , M. McCourt , and Carl Mingione and serve upon the parties a,
supplemental tally of ballots.]
ACTING CHAIRMAN RoDGERS took no part in the consideration of the
above Supplemental Decision and Direction.
I In its brief , Flints cites a number of cases in support of its . contention that the
retention of seniority rights requires a finding that these employees are temporarily
rather than permanently laid off. In each case cited, however , there are other factors
present , in addition to retention of seniority status, indicating the temporary nature of
the layoff. In the instant case, none of these additional factors is present. The mere
fact that laid-off employees have continued seniority rights does not entitle them to vote,
but rather the test is whether there exists it reasonable expectancy of employment in the
near future . Hsggins, Inc., 111 NLRB 797 , and cases cited therein. -
Associated Machines, Inc, and United Steelworkers of America,
C. 1. 0. and Independent Machine Workers Union of Lancaster,
Ohio1 Party to the Contract. Case No. 9-C.4-843. October 13,
1955
DECISION AND ORDER
On March -24, 1955, Trial Examiner Herbert Silberman issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. The Trial Examiner also found
that the Respondent had not'violated the Actin certain other respects.
114 NLRB No. 80.
,ASSOCIATED MACHINES, INC. 391
Thereafter, the General Counsel and the Respondent filed exceptions
to the Intermediate Report and supporting briefs.'
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 Inter-
mediate Report, the exceptions and briefs, and the entire record in-
the case, and hereby adopts the Trial Examiner's findings, con-
clusions, and recommendations as modified below.
We agree with the Trial Examiner that the Respondent violated
Section 8 (a) (1), (2), and (3) of the Act by entering into and main-
taining in force a'collective-bargaining agreement containing a union-
security clause which granted to employees less than 30 days in which
to join the contracting Union. We also agree with the Trial Ex-
aminer in rejecting the Respondent's contention that the written agree-
ment was intended only to memorialize an oral understanding which
became effective upon employee ratification of the proposed agree-
ment. In the field of labor law, it is customary to consider a writ-
ten document embodying the terms of a collective-bargaining rela-
tionship as the contract between the parties and that it is not to be
effective until signed by both parties to the agreement. There is no
evidence of any intention by the parties to depart from this normal
practice and understanding.
The Respondent has not excepted to the Trial Examiner's recom-
mended remedy for the above violation of the Act, namely, that the
Respondent withdraw recognition from the Independent as collective-
bargaining representative of its employees and cease giving effect to
its bargaining contract with that labor organization. We adopt the
Trial Examiner's recommendation.
In view of our finding that the Respondent violated Section 8 (a)-
(2) and (1) of the Act by entering into the 1954 collective-bargaining
agreement with the Independent because of the inclusion therein of
an unlawful union-security clause, we find it unnecessary to decide
whether the signing of the agreement also violated the same section
of the Act because of the Midwest Piping doctrine 2 The remedy for
the second alleged violation would be essentially the same as that for
the violation actually found. 'Accordingly, we do not adopt or pass
upon the validity of the Trial Examiner's findings or discussion re-
lating to the Midwest Piping issue.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
.of the National Labor Relations Act, the National Labor Relations
' The Respondent's request for oral argument is hereby denied as the record and excep-
tions and briefs, in our opinion , adequately present the issues and positions of the parties.
2 Midwest Piping and Supply Co ., 63 NLRB 1060.
392 ODECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board hereby orders that the Respondent, Associated Machines, Inc.,
Lancaster, Ohio, and its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Recognizing Independent Machine Workers Union of Lan-
caster, Ohio, or any successor thereto, as the representative of its em-
ployees for the purpose of dealing with it concerning grievances, labor
disputes, wages, rates of pay, hours of employment, or' other condi-
tions of employment, unless and until such labor organization shall
have been certified by the National Labor Relations Board as such
representative.
(b) Performing or giving effect to its collective-bargaining agree-
ment with Independent Machine Workers Union of Lancaster, Ohio,
entered into in July 1954, or to any modification, extension, supple-
ment, or renewal thereof, or to any other contract, agreement, or under-
standing, entered into with the said labor organization, relating to
grievances, labor disputes, wages, rates of pay, hours of employment,
or other conditions of employment, unless and until said. organization
shall have been certified by the National Labor Relations Board.
(c) Encouraging membership in Independent Machine Workers
Union of Lancaster, Ohio, or any other labor organization, by discrim-
inating against employees in regard to hire or tenure of employment
or other terms or conditions of employment.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Withdraw and withhold all recognition from Independent Ma-
chine Workers Union of Lancaster, Ohio, or any successor thereto, as
the representative of any of its employees for the purpose of dealing
with such labor organization in regard to grievances, labor disputes,
wages, rates of pay, hours of employment, or other conditions of em-
ployment, unless and until such labor organization shall have been
certified by the National Labor Relations Board as the representative
of the employees concerned.
(b) Post at its plants in Lancaster, Ohio, copies of the notice at-
tached to the Intermediate Report and ., marked"-Appendix A." '
Copies of such notice, to be furnished by the Regional Director for the
Ninth Region, shall, after being duly signed by the Respondent's rep-
resentative, be posted by it immediately upon receipt thereof and
maintained by it for sixty (60) consecutive days thereafter in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Respondent
a This notice shall be amended by substituting for the words "The Recommendations of
a Trial Examiner" the words "A Decision and Order " In the event that this Order is
enforced by a decree of a United States Court of Appeals, there shall be substituted for
the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the
United States Court of Appeals , Enforcing an Order "
ASSOCIATED MACHINES, INC. 393
to insure that the notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for the Ninth Region in writing,
within ten (10) days from the date of this Order,. what steps it has
taken to comply herewith.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge duly filed by United Steelworkers of America, C. I. 0., herein called
the Steelworkers, the General Counsel of the National Labor Relations Board, by the
Regional Director for the Ninth Region (Cincinnati, Ohio), issued a complaint and
amendment to complaint, dated, respectively, September 14 and 17, 1954, against the
Respondent , Associated Machines , Inc., alleging that the Respondent had engaged in
and was engaging in unfair labor practices affecting commerce within the meaning
of Section 8 (a) (1), (2), and (3) and Section 2 (6) and (7) of the National Labor
Relations Act, 61 Stat. 136, herein called the Act. Copies of the charge, complaint,
amendment to complaint , and notices of hearing thereon were duly served upon the
parties, including Independent Machine Workers Union of Lancaster, Ohio, herein
referred to as the Independent. The Respondent in its answers to the complaint and
amendment to complaint, respectively verified on September 17 and 22, 1954, denied
that it had committed the alleged unfair labor practices.
With respect to the unfair labor practices, the complaint, as further amended dur-
ing the hearing, alleges, in substance, that the Respondent: (1) In violation of Sec-
tion 8 (a) (1) and (2) of the Act, on June 30, 1954, recognized and thereafter ne-
gotiated with the Independent as the exclusive bargaining agent for its employees
and on July 26, 1954, entered into a written contract with the Independent although
it knew that a question concerning representation existed by reason of the conflict-
ing representation claims or interests of the International Brotherhood of Electrical
Workers, A. F. L., herein referred to as the IBEW, International Association of
Machinists, A. F. L., herein referred to as the IAM, and the Steelworkers; and (2)
in violation of Section 8 (a) (1), (2), and (3) of the Act, on July 26, 1954, con-
cluded and thereafter enforced a collective-bargaining agreement which required as
a condition of employment membership in the Independent within a period of less
than 30 days following the effective date of the said agreement.
Pursuant to notice, a hearing was held at Lancaster, Ohio, on various dates between
October 5 and November 22, 1954, before Trial Examiner Herbert Silberman. At
the opening of the hearing the Trial Examiner granted the motions made on behalf
of the IBEW and IAM to intervene in the proceedings. All parties and intervenors
were represented at the hearing by counsel or other representative, and were afforded
full opportunity to be heard , to examine and cross-examine witnesses , to introduce
evidence pertinent to the issues, to engage in oral argument at the close of the hear-
ing, and to file briefs and proposed findings of fact and conclusions of law with the
Trial Examiner. Briefs were received from the General Counsel and the Respondent
and have been carefully considered.
Upon the entire record in the case, and from my observation of the demeanor
of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Associated Machines, Inc., a Michigan corporation, at its plants in Lancaster,
Ohio, is engaged in the manufacture of plastic molded parts, metal diecastings, and-
other products which are components used in the assembly and manufacture of parts
for automobiles. During the year ending June 30, 1954, which period is represen-
tative of all times material hereto, the Respondent sold, shipped, and delivered prod-
ucts manufactured by it and valued in excess of $100,000 to the R. B. M. Division
of the Mendon Company, also located in Lancaster, Ohio. During the same period,
the R. B. M. Division of the Mendon Company used the components it received
from the Respondent in the production of automobile parts valued in excess of
$250,000 which were shipped from its plant in Lancaster, Ohio, to points outside the
State of Ohio.
The Respondent admits and I find that it is engaged in commerce within the mean-
ing of the Act.
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATIONS INVOLVED
Independent Machine Workers Union of Lancaster, Ohio; United Steelworkers of
America, C. I. 0.; International Brotherhood of Electrical Workers, A. F. L.; and In-
ternational Association of Machinists, A. F. L., are labor organizations within the
meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Sequence of events
The ultimate issues in this case are *two: first, has the Employer accorded un-
lawful assistance to the Independent by voluntarily recognizing, that labor organiza-
tion as the collective-bargaining representative of its employees and by entering
into a contract with said Union; and second; does the agreement contain an unlawful
union-security clause.
Relevant to the issues, particularly as background, is a prior unfair labor practice
proceeding, Case No. 9-CA-673, which was instituted against the Respondent upon
charges filed on May 26 and July 21, 1953, by the Steelworkers, which labor
organization also filed the charge in the instant case. The complaint in the earlier
case, issued on July 28, 1953, in relevant part, alleged that from about May 25, 1953,
the Respondent dominated and interfered with the formation and administration of
an unaffiliated labor organization, the Associated Machines, Inc., Committee, and
also lent unlawful assistance to the IBEW. Following a hearing before a Trial
Examiner, which was held on September 9 and 10, 1953, the Board on February 17,
1954, issued its decision and order,' adopting the Intermediate Report of the Trial
Examiner, who found that the. Respondent had violated Section 8 (a) (1) and (2)
of the Act by dominating the Associated Machines, Inc., Committee but that it
had not unlawfully assisted the IBEW, and ordering the disestablishment of the
Committee. The Respondent refused to comply with the Board's order and the
United States Court of Appeals for the Sixth Circuit was petitioned to enforce the
said order. However, on January 31, 1955, by the decision of a divided court (219
F. 2d 433), enforcement was denied on the ground that the alleged dominated
'Committee was not a Jabor organization within the meaning of the Act.
While the proceedings in the earlier case were taking place, the events upon which
the complaint herein is founded occurred. On May 28, 1953, the IBEW addressed
a letter to the Respondent claiming to represent a majority of Respondent's em-
ployees and requesting recognition as their exclusive bargaining agent. Although
Respondent did not reply to this letter in writing, about June 1953, Frank E. Twiss,
Respondent's vice president and general manager, told F. E. Kistler, International
representative for the IBEW, that Respondent would recognize the IBEW only if
the Union could show that it represented a majority of the employees. The IBEW
made no attempt to demonstrate its majority status to Respondent, but on July 9,
1953, filed with the Ninth Regional Office of the Board at Cincinnati, Ohio, a peti-
tion for certification of representatives, which was assigned Case No. 9-RC-2009.
The IBEW's petition described the appropriate collective-bargaining unit as all
Respondent's production and maintenance employees,2 and named the Steelworkers
as another labor organization interested in the described employees. The General
Counsel contends that the Board's Regional Office mailed copies of the IBEW's
petition to the Respondent and the Steelworkers on the same day that it was filed, but
took no further steps in the matter in accordance with the Board's estabilshed policy
to hold in abeyance any action with respect to a petition for certification of represen-
tatives while an unfair labor practice proceeding, particularly one alleging violations
of Section 8 (a) (2) of the Act, is pending against the affected employer. The Re-
spondent denies that it received a copy of the petition in Case No. 9-RC-2009 or
otherwise acquired knowledge that such petition had been filed prior to receipt of
the complaint in the instant proceeding. The General Counsel's position herein is
that the petition in Case No. 9-RC-2009 was pending before the Board within the
meaning of the principle enunciated in Midwest Piping and Supply Co., Inc., 63
NLRB 1060, during the times the events related below occurred.
The Independent was formally organized on April 23, 1954, when its constitution
and bylaws was adopted. There is no contention that the Independent was created
1107 NLRB 1153.
a This unit with the usual exclusions is conceded to be appropriate by the parties to^
this proceeding It is essentially the same unit described in the collective-bargaining agree-
ment between the Respondent and the Independent.
ASSOCIATED MACHINES, INC. 395
or formed at the instigation of the Respondent , or that it received financial support
from the Respondent , or that its activities were dominated by Respondent. The
Independent , having obtained the signatures of a majority of the employees to a
petition at the top of which is written , "We, The Undersigned , Want An Independent
Labor Union ," on June 23 , 1954, wrote the Respondent requesting recognition as
the representative of its employees and at the same time submitted its petition to
the Respondent. The letter was returned to Merrill Pottle, secretary-treasurer of
the Independent, by John Twiss, Respondent's superintendent, who told Pottle that
Respondent could not recognize the Independent on the basis of its June 23 letter
because the letter did not contain a specific claim that the Independent represented
a majority of the employees. In accordance with Twiss' suggestion, on June 29, 1954,
the -Independent wrote Respondent a second letter this time asserting its majority
status and again requesting recognition. The Respondent replied the next day by
letter stating:
Having examined the evidence of majority status submitted by you we can
advise you that representatives of the company will be ready to meet with you
any time after July 6, 1954.
Frank E. Twiss testified that Respondent had continued to meet with the Associated
Machines, Inc., Committee until this date.
Thereafter, on July 14, officers of the Independent met with Frank Twiss and the
Company's attorneys at which time the terms of a proposed contract were discussed.
Another meeting was held a few days later. The evidence does not show who drafted
the agreement which is in issue in this case or when it was drafted. However, the
evidence shows that a proposed agreement between the Respondent and the Inde-
pendent was read to the membership of the Independent at a meeting held at 7:30
p. m., on Friday, July 23, 1954, and was voted upon. The union membership by
its vote empowered its executive committee to sign the contract on behalf of the
Independent. Upon the conclusion of the meeting the appropriate officers of the
Independent executed the agreement. The following Monday, July 26, 1954, in
the presence of the three union officers who had already affixed their signatures to
the agreement, Frank E. Twiss signed the contract on behalf of the Respondent.
Thus, the agreement between the Respondent and the Independent was concluded
on July 26, 1954.3
Between June 30, when Respondent recognized the Independent, and July 26, when
Respondent executed the aforesaid collective -bargaining agreement , another union
advanced its claim to represent Respondent's employees. On July 16, 1954, the IAM
wrote Respondent advising that it had been designated by a majority of Respondent's
production and maintenance employees as their bargaining agent and requesting
a meeting with Respondent. Respondent ignored this letter and on July 21, 1954,
the IAM wrote a second letter to the Respondent reasserting its representative status,
protesting the layoffs of three employees , and again requesting a meeting with Re-
spondent. This letter also was not answered. On July 29, 1954, the IAM filed a peti-
tion for certification of representatives, which was docketed as Case No. 9-RC-2293
by the Ninth Regional Office of the Board. The Board has taken no action in
this case.
While the foregoing events were taking place, the Steelworkers succeeded in
obtaining authorization cards from a substantial number of Respondent's employees,
most of which were secured in August 1953 and February and March 1954. The
evidence shows that a majority of the employees covered by the July 1954 agreement
between the Respondent and the Independent had previously designated the Steel-
workers as their representative. Many of these employees, without revoking prior
authorizations given the Steelworkers, had also signed the Independent's petition.
However, the Steelworkers did not request recognition from Respondent or advise
Respondent of its claim to be the representative of a majority of Respondent's
employees until August 10, 1954.
The General Counsel's theory in this case is that in June and July 1954, Respond-
ent was aware of the competition among the above-mentioned labor organizations
to achieve the status of exclusive collective-bargaining representative of its employees
and was therefore under a duty, imposed by the Act, to remain neutral and not to
intrude upon the employees' freedom of choice by giving its support to any of the
s Contrary to the contention advanced by the Respondent, the evidence does not show
that the written agreement merely memorialized a prior oral contract entered into between
the Respondent and the Independent on July 22, 1954, or that Respondent had made an
unconditional offer in the form of the unsigned agreement which merely awaited the
Independent 's acceptance to become a binding contract.
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
competing unions. Since an employer who enters into a collective-bargaining agree-
ment with one of several rival labor organizations, particularly an agreement which
contains a union-security clause, lends such organization potent assistance in its
struggle for majority representation among the employees, the General Counsel
contends that the Respondent herein by doing just that has infringed upon the
employees' right to self-organization and has provided unlawful support to the con-
tracting union, the Independent. The position of the Respondent, on the other
hand, is that it was unaware of any organizational activity among its employees from
September 1953 until it was presented with a representation claim by the Independent,
in June 1954, and, therefore, having no reason to doubt the Independent's evidence
of majority, it was privileged to recognize and to contract with that organization.
B. Respondent's knowledge of the representation petition filed by the IBEW
The disputed issues in this case are essentially legal rather than factual. The
parties are in substantial agreement as to the operative facts relevant herein with
but one significant exception. The positions of the General Counsel and the Respond-
ent are in conflict with regard to whether the Respondent at the time it recognized
and entered into a collective-bargaining agreement with the Independent knew of the
pendency of the representation petition filed by the IBEW in Case No. 9-RC-2009.
The General Counsel relies upon circumstantial evidence to prove that the Respond-
ent in July 1953 received a copy of the representation petition which had been filed
with the Board by the IBEW. Mrs. Helen K. Jones, who since 1947 has been super-
visor of the affidavit compliance, docketing, and mail, files, and records section for
the Ninth Regional Office of the National Labor Relations Board, testified that she
had personally handled the clerical operations on behalf of the Regional Office of
the Board in connection with the representation petition ,filed, by, the IBEW and, that,
on July 9, 1953, a copy thereof was mailed to the Respondent. She, testified that,
in accordance with the routine procedure of the office, among other things, she ad-
dressed envelopes with return addresses marked thereon and bearing United States
Government franks to the employer named in the petition at the address set forth
therein 4 and to the Steelworkers, which organization was listed in the petition as
another union interested in Respondent's employees. She inserted a copy of the IBEW
petition in each envelope and deposited the envelopes on a desk in the sane office
which is used as a repository for outgoing mail. She further testified that, although
she does not have any personal recollection of the ultimate deposit of the letter
addressed to the Respondent in a duly authorized receptacle of the United States Post
Office, in the normal coarse of the office's routine operations one of her subordinates
or herself that same night removed all the letters from the mail desk and deposited
them in a mailbag in the lobby of the building in which the Board's Regional Office
is located. Mrs. Jones further testified that any undelivered letters are received by
another clerical employee who then forwards such letters to the unit supervised by
Mrs. Jones. Undelivered letters are placed in the appropriate case files. She testified
that the file in the Case No. 9-RC-2009 does not show that the copy of the represen-
tation petition which- had been. mailed to the -Respondent,-had -`_been `returned' uiide-
livered to the Board's Regional Office. J. Robert Keys testified that the Steelworkers
had received the copy of the IBEW petition which Mrs. Jones testified was mailed to
it at the same time that another copy was mailed to the Respondent. Frank Twiss,
Respondent's vice president and general manager, on the other hand, testified that the
Respondent never received the copy of the representation petition which Mrs. Jones
testified was mailed to Respondent on July 9, 1953.
The generally accepted rule in most United States jurisdictions is that proof of the
existence of an office practice or custom in the mailing of letters, together with proof
that the custom was followed in the particular instance, constitutes sufficient evidence
of mailing to support a presumption of due receipt by the addressee.5 This presump-
tion is strengthened where, as in this case, it is shown that the letter was not returned
to the sender, although the envelope bore a return address, and also that other letters
4 The petition names Associated Machine Industries as the employer instead of Associated
Machines, Inc However, the address of the employer named in the IBEW petition is
234 North Memorial Drive, Lancaster, Ohio, which is the address of the Respondent
herein . I do not find any merit in Respondent's argument that the General Counsel has
failed to prove that the letter in issue in this case had been duly mailed because the
evidence shows that the envelope was addressed to Associated Machine Industries instead
of'Associated Machines, Inc, where the street address which was placed on the envelope
corresponded exactly with the Respondent's street address.
6 Meyers et at. v. Moore-Kite Co.,-279 Fed 233 (C A. 3) , 31 C J. S 782.
ASSOCIATED MACHINES, INC. 397
mailed by the sender at the same time as the letter in issue were received by their
respective addressees . Furthermore, the addressee 's positive denial of receipt does
not nullify the presumption but merely creates an issue of fact with such weight to be
given the presumption as the trier of facts thinks it entitled to, the burden of proving
receipt remaining throughout on the party who asserts it.6 The General Counsel
argues, in effect, that Twiss ' denial was a fabricated afterthought which should not be
accorded any weight ., This argument is based upon the opening statement of Re-
spondent 's counsel and testimony of Frank Twiss which are inconsistent with Twiss'
later denial that the Respondent had received a copy of the IBEW petition . The com-
plaint alleges , inter alia , ". . . Respondent . assisted . the Independent by
. .. agreeing to bargain with said Independent . . ., even though it knew there was
a current representation petition pending, raising a question concerning representa-
tion within an appropriate unit, which had been filed by the IBEW on or about July 9,
1953; . However, at the opening of the hearing when the Trial Examiner re-
,quested the attorneys for the parties to state their respective positions, counsel for the
Respondent did not state that the Respondent 's defense to the aforesaid allegation of
the complaint was lack of knowledge of the pendency of the IBEW petition but in
effect asserted that its defense was one of confession and avoidance , namely , "I think
,our [ Respondent 's] position is merely that there was a petition for representation
pending which was well over a year old at the time we [ Respondent ] recognized
another union . , [ Emphasis supplied .] Had Respondent 's counsel been ad-
vised by his client prior to the opening of the hearing that it had no knowledge of the
pendency of the 1BEW representation petition when it entered into its contract with
the Independent , it would have been only natural for counsel also to have relied upon
this fact in his opening statement instead of "merely" upon the legal position that the
passage of time caused the IBEW petition to become dormant. Moreover , when the
General Counsel sought to introduce in evidence a document which purported to be
a motion by the Steelworkers to intervene in Case No. 9-RC-2009, Respondent's
attorney objected , and his objection was sustained by the Trial Examiner, on the
ground that there was no proof of service upon the Respondent of the Steelworkers'
motion to intervene . On the other hand , Respondent 's counsel raised no similar ob-
jection to the admission of the IBEW petition itself into evidence although he did
object to its admission on grounds of materiality , which indicates that Respondent's
attorney at that stage of the hearing had not yet been advised by his client that it
had not received a copy of the IBEW representation petition. ? The General Counsel
also directs attention to testimony of Frank Twiss given early in the hearing which
is inconsistent with his later denial of receipt of a copy of the IBEW petition. The
General Counsel , while interrogating Frank Twiss concerning the supervisory status
of certain employees on particular dates, asked the questions and received the answers
quoted below:
Q. Was he in that position at the time the IBEW filed its petition in RC-
2009, for instance?
A. I don 't remember ., He was there before Paul.
Q. Well, the petition was filed , I believe, on July 9, 1953. To the best of
your recollection ' [Emphasis `• supplie l ]
A. Yes, I would think so, yes.
It is true at that particular time in the proceeding Mr. Twiss was not being interro-
gated about the petition in Case No. 9-RC-2009 , nevertheless, it does not appear to
the Trial Examiner that it would have been natural for Twiss to have answered the
last question quoted above with a simple yes if the fact was that the Respondent had
not received the IBEW petition.
Upon consideration of all the factors bearing upon the issue , including my impres-
sion of the reliability of Frank Twiss as a witness , I do not credit his testimony that
the Respondent , prior to September 1954, had no knowledge of the pendency of the
IBEW petition in Case No. 9-RC-2009 . On the other hand, I find that the Respond-
,ent received a copy of the said petition in July 1953.8
131 C J. S. 786
7 See Pacific Intermountain Express Company, 110 NLRB 96, footnote 14.
8 In making this finding I do not rely in any respect upon the testimony of Ervin L.
'Schwartzmiller that in August 1954 a representative of the Respondent admitted to him
that the Respondent had knowledge of the pendency of the IBEW petition in Case No.
'9-RC-2009. Seliwartzmiller 's testimony was too indefinite to merit credit when opposed
lby the forthright but^contr .idictory testimony of Frank Gallucci.
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Conclusions
1. With respect to the execution of the agreement with the Independent
The Act imposes upon an employer the duty of bargaining collectively with the
representative designated or selected by the majority of the employees in a unit ap-
propriate for such purposes. In substance, the Respondent's position is that it did no-
more than fulfill its statutory obligations by recognizing, negotiating, and entering
into a written agreement with the Independent. The General Counsel's position, on
the other hand, is that during all the times material hereto a genuine question existed
as to whether any of the'competing labor organizations had been designated by Re-
spondent's employees as their collective-bargaining agent and that the Respondent
by voluntarily recognizing and entering into a contract with the Independenent, par-
ticularly a contract containing a union-security provision, determined the question
of representation for itself thereby according to the Independent potent advantage
over its rivals and infringing upon the employees' statutory right to self-organization
and to freely choose their collective-bargaining representative.
The most reliable indicium of the employees' wishes as to representation is the re-
sults of a secret ballot election conducted under Board auspices pursuant to Section
9 of the Act.. However, this method of selection of a bargaining agent is not exclu-
sive. Even absent the imprimateur of a Board certification, an employer, neverthe-
less, may recognize and deal with a labor organization freely chosen by the em-
ployees as their bargaining representative. On the other hand, where a real question
exists as to whether a particular organization is the majority representative of the
employees in an appropriate unit, an employer who arrogates to himself the author-
ity vested in the Board by Section 9 of the Act to determine such question violates
the Act. The existence of a question concerning representation is normally, and in
most instances conclusively, indicated by the pendency of a representation proceed-
ing based upon a petition which had been filed with the Board in accordance with
Section 9 (c) of the Act. However, the pendency of a proceeding before the Board
is not an indispensable prerequisite to the existence of a question concerning repre-
sentation. Under normal circumstances where several labor organizations are vying
for the same employees' favor the Act requires the employer to remain neutral in the
contest. He should not interfere with the employees exercising a free and unham-
pered choice and should refrain from any action which tends to give one union
advantage over its rivals Thus, recognition of one of the competing unions as ex-
clusive bargaining agent while the question concerning representation is still unre-
solved is a breach of the employer's obligation of neutrality and is proscribed by the
Act. This is so regardless of whether a proceeding under Section 9 of the Act for the
determination of representatives is pending before the Board.
The General Counsel, citing Midwest Piping and Supply Co., Inc., 63 NLRB 1060,
contends that in July 1954 when Respondent entered into its contract with the In-
dependent a question concerning representation is conclusively presumed to have
existed solely by virtue of the pendency of the petition in Case No. 9-RC-2009,
which had been filed by the IBEW more than a year earlier. I do not agree with
the General Counsel's premise that a violation of the Act is spelled out in this case
merely by proving that the IBEW's petition for certification of representatives in a
concededly appropriate unit had not been dismissed or otherwise disposed of by the
Board when the Respondent executed its collective-bargaining agreement with the
Independent. It is not the purpose of the Act to cause postponement or interrup-
tion of collective bargaining "whenever a clearly unsupportable or specious rival
union claim is made upon an employer." 9 Thus, in Ensher, Alexander & Barsoom,
Inc., 74 NLRB 1443, the Board cautioned that the Midwest Piping doctrine "neces-
sary though it is to protect freedom of choice in certain situations can easily oper-
ate in derogation of the practice of continuous collective bargaining, and should,
therefore, be strictly construed and sparingly applied." 10
A prima facie case of violation of the Act under the Midwest Piping principle is
not made out merely by establishing that a representation petition was on file with
the Board at the time the employer entered into a collective-bargaining agreement. It
is incumbent upon the General Counsel to establish by a preponderance of the
evidence that "the petition has a character and timeliness which create a real question
concerning representation." William Penn Broadcasting Company, 93 NLRB 1104,
91Villcam Penn Broadcasting Company, 93 NLRB 1104, 1105.
10 See also N. L. R B. v. FlotiU Products, Inc., 180 F 2d 441 (C A 9) ; N. L. R B. v.
Standard Steel Sprcng Company, 180 F. 2d 942 (C. A 0)
'ASSOCIATED MACHINES;,.INC. ' 399
1105.11 This the General Counsel has failed to do. "The existence of [such] a
question [ concerning representation ] is determinable by applying the same criteria,
contemplated in Section 9 of the Act, that are uniformally applied by the Board in
finding a `question of representation ' before proceeding to an election ." 12 - One of
the essential elements which must be established before the. Board will make a
determination that such a "question " exists is that the petitioning union represents a
"substantial number of employees ." 13 It has been "the Board 's administrative ex-
perience that in the absence of special factors the conduct of an election serves no
purpose under the statute unless the petitioner has been designated by at least 30
percent of the employees." 14 Although the determination of substantial interest is
administrative 15 and may be made ex parte by the Board's Regional Director, it does
not relieve the General Counsel in this case from showing in some manner that such
administrative determination had been made and that the Regional Director had
found that the petitioning union, the IBEW, did represent a substantial number of
employees. Absent evidence in any form that the 1BEW had an adequate showing
of interest to support its petition, I find that the General Counsel has failed to prove
that the petition filed by the IBEW in Case No. 9-RC-2009 raised a real question
concerning representation.16
Additionally, Respondent argues that it was justified in assuming that the IBEW
petition was dormant at the time it entered into its contract with the Independent.
This argument has merit. The evidence shows that when the IBEW filed its petition
the Respondent was sent a copy thereof but the Board did nothing more in the
matter. If the Regional Director of the Board had determined that reasonable
cause existed to believe that the IBEW petition raised a question concerning rep-
resentation he made no effort to communicate such determination to the Respondent.
The lapse of more than 1 year, through no fault of the Respondent,17 together with
the fact that after the IBEW had filed its representation petition the Board named
that union as an assisted union in Case No. 9-CA-673, in my view were sufficient
to lull Respondent into the belief that the IBEW petition would not result in a hear-
ing and representation election. As the court said in N. L. R. B. v. Flotill Products,
Inc., supra, "The [Midwest Piping] doctrine is certainly disruptive of the practice
of [continuous ] collective bargaining where, as here, representation proceedings are
retained before the Board for inordinate lengths of times." 18 If any question of
"The respondent in the William Penn case had entered into a contract with an in-
cumbent union and the principle enunciated by the Board in that case was phrased to
reflect this circumstance The Board majority emphasized its concern that "a broad
application of the [Midwest Piping] doctrine would serve only to deprive employees of the
benefits of an uninterrupted bargaining relationship whenever a clearly unsupportable or
specious rival claim is made upon an employer ." However, employees are likewise
prejudiced by the postponement , as well as by the Interruption , of bargaining relation-
ships and the rule of the William Penn case is not limited to instances where an employer
enters into a contract with an incumbent union. Thus, in Leubren Paper Corporation, etc.,
105 NLRB 567, the Board dismissed a complaint alleging violation of Section 8 (a) (1)
and (2) of the Act where the respondent had entered into a collective-bargaining agreement
with a union, which was not an incumbent union, after a representation petition had
been filed with the Board and while the petition had not been finally disposed of by
the Board.
11 William Penn Broadcasting Company, supra, p. 1106.
13 Section 9 (c) (1) (A) of the Act. -
i4 National Labor Relations Board, Statements of Procedure, June 3, 1952, Section 101.17.
15 Potomac Electric Power Company, 111 NLRB 553.
16 Cf. N. L. R. B. v. J. I. Case Company, 201 F 2d 597 (C A. 9) ; Intermediate Reports
in General Electric Company , 110 NLRB 1109, and Leubren Paper Corporation, etc., supra.
1S In the present posture of the case, because the court of appeals has exonerated
Respondent of any alleged violations of the Act in connection with the charges and
complaint in Case No. 9-CA-673, Respondent's relationship with the Associated Machines,
Inc , Committee cannot be considered culpable.
1s Had the court of appeals handed down a different decision in Case No. 9-CA-673 it
might be argued that so long as the unfair labor practices found by the Board in the
earlier proceeding are unremedied an atmosphere of coercion prevails which, in accordance
with the Board 's usual practices , prevents the holding of a free election . In such circum-
stance, the Board normally would not direct an election in Case No. 9-RC-2009 until
the coercive effects of the Employer's unfair labor practices have been dissipated by
compliance with the Board's order. Therefore, because the Board would not attempt to de-
termine the employees' bargaining representative in an atmosphere which is not conducive
to an untrammeled and free exercise of choice, a fortiori, the Respondent who is not as
well equipped as the Boaid to determine the employees ' true Ilesires as to representation
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representation was raised by the IBEW petition , under the circumstances , it was;
technical rather than real and cannot be the springboard for any findings of unfair
labor practices herein.19
Apart from the alleged Midwest Piping violation , the broader question raised in,
this case is whether the Respondent breached its obligation to remain neutral during
a period of contest among several labor organizations for designation as bargaining
agent of Respondent 's employees . The Respondent 's position , in substance , is that
so far as it knew the Independent had no active rival and therefore when that Union
requested recognition and submitted evidence of its majority the Respondent was.
fulfilling its statutory obligations by recognizing and entering into negotiations with
the Independent . Respondent further contends that the later conflicting representa-
tion claims of the IAM, mailed to it on July 16 and July 21, 1954, 10 days and 5•
days, respectively , before it executed its agreement with the Independent were un-
supportable and therefore Respondent was justified in ignoring them . In defense of
its position various witnesses called on behalf of the Respondent , including the Com-
pany's managers and supervisors , testified that from September 1953 until the In-
dependent was recognized by Respondent , on June 30 , 1954, they were aware of
no activity in behalf of any union other than the Independent . In rebuttal, the
General Counsel was able to show only that : (1) On October 20 and 27 and No-
vember 4, 1953, a representative of the IAM distributed pamphlets , which generally
advertised the benefits of unionism , at the gate of one of Respondent 's plants, but
did not actively solicit the employees to join the JAM; (2) that the Steelworkers held
3 meetings ; 1 in August 1953, the second in January 1954, and the third on July 23,
1954, which were attended by from 8 to 12 employees ; and (3 ) on February 23,
1954, Frank Twiss in a speech to the employees in which he defended the Company's
position with respect to the Board 's decision and order in Case No. 9-CA-673 said,
"You can join any union you want. You can join the CIO, the AFL, the IBEW,
the JAM, any union you want ." 20 The foregoing circumstantial evidence is inade-
quate to overcome the testimony of Respondent 's managers and supervisors that
they did not know of any organizational activity on the part of any union other than
the Independent from September 1953 to July 1954. The remark of Frank Twiss,
quoted above, in context of the entire speech does not establish that in February
1954 he knew of current efforts by any of the unions mentioned to organize Re-
spondent 's employees ; it was merely a specific explication of his thesis that the Com-
pany would not interfere with its employees ' self-organizational efforts. The per-
functory distribution of leaflets by the IAM in October and November 1953, unac-
companied by any overt attempts to sign up members, was not likely to have aroused
sufficient employee interest to warrant an inference that these activities had been
reported to the Respondent . Furthermore , such a limited organizational effort by
the JAM was not sufficient to raise even a suspicion that that union had succeeded
thereby in obtaining designations from any substantial number of employees. As
to the Steelworkers ' meetings there was no evidence that they had been publicly ad-
vertised or that there had been any general talk about them in the plant . Further-
more , the General Counsel sought to show that the Steelworkers ' adherents prob-
ably feared reprisals from the Respondent for supporting that Union and would have
kept their activities in its behalf secret . Accordingly, there is no basis on the record
for inferring that the Respondent had obtained any information concerning those,
may not determine for itself the employees' bargaining representative "Otherwise, we
should have the anomalous lesult of an employer being permitted unilaterally to
[re]determine his employees' bargaining representative at a time when the Board would
refuse to make such [re]determination because the time is inappropriate for such action "i
Hexton Furniture Company, 111 NLRB 342
10 National Labor Relations Board, Twelfth Annual Report, p 26, Enslacr, Alexander &
Barsoom, Inc, supra.
20J. Robert Keys, a representative of the Steelworkers, testified that he telephoned
Frank Twiss and "told him that we still represented the people and asked him for a copy
of the transcript of his [February 23] talk that lie made to his employees." Twiss
acknowledged that Keys had telephoned him and had requested a copy of his speech.
However, Twiss denied that Keys said to him that the Steelworkers represented Re-
spondent's employees Although this incident, as well as the circumstance that the
Steelworkers had filed the charges in Case No. 9-CA-673, indicates the continuing interest
of the Steelworkers in iepiesentmg Respondent's employees, they are not sufficient to
put the-Respondent on notice that the Steelworkers actually had, obtained authorizations
from a substantial number of employees, even assuming that Keys had made the ambiguous
remark to Twiss in February 1954 "that we still represented the people."
ASSOCIATED MACHINES, INC. 401
meetings or other organizational efforts on the part of the Steelworkers between
September 1953 and July 1954.21
Although at times the principle of employer-neutrality has been expressed in
sweeping language,22 it is applied with sensible appreciation that indiscriminate and
rigid adherence to such rule may unreasonably frustrate or delay collective bargaining
if no genuine, question exists as to which of several competing labor organizations is
the true representative of the employees.23 An employer is privileged, if not required,
to recognize any bona fide labor organization which genuinely demonstrates that it
has been freely designated as bargaining agent by an uncoerced majority of the em-
ployees in an appropriate unit, despite conflicting representation claims, so long as
the employer's action is free of wrongful intent and the contesting union's claims of
majority status lack sufficient semblance of genuineness or substantiality to raise a
valid question concerning representation.24 Thus, in Siler Mill Company, 92 NLRB
1680, 1683, the Board held that it is not unlawful for an employer to enter into a
contract with a majority representative merely because at the time of the execution
there may have existed a speculative possibility that another union might claim to
represent the employees concerned. Similarly, in Anaconda Copper Mining Com-
pany, 104 NLRB 1064, the Board held that recognition of a union which adequately
proved its majority did not constitute unlawful assistance where the employer was not
confronted with a conflicting representation claim although aware of the organiza-
tion interest of a competing union.25
In the instant case, Frank Twiss testified that when he received the purported
evidence of majority submitted by the Independent, he compared the names thereon
against the Company's payroll and upon finding that a majority of the employees
had signed the instrument accorded the Independent recognition. There is nothing
in the present state of the record which impeaches Respondent's asserted bona fides 26
in recognizing the Independent upon the basis of that Union's petition. The Respond-
ent was free to disregard the earlier claim of the IBEW which at that time had lain
dormant for more than a year. Likewise, because there is no proof that the JAM-'s
subsequent claims of majority status had any support in fact, the Respondent was
justified in its action in ignoring such claims.27 The General Counsel argues, how-
ever, that the Steelworkers' authorization cards from a majority of the employees in
the appropriate unit suffices to impugn the validity of the Independent's majority.
That would be true had the Steelworkers made timely assertion of a claim to repre-
sent the Respondent's employees. However, because the Steelworkers did not
advance its claim until after the Respondent concluded its contract with the In-
21 The evidence shows that a substantial number of employees gave the Steelworkers
authorization cards in the early months of 1954. However, such testimony as appears
in the record on the subject indicates that the solicitation of Steelworkers' cards was
conducted surreptitiously and probably did not come to Respondent's attention.
22 For instance, in Henry Heide, file, 107 NLRB 1160, the Board said •
that an employer confronted with claims to recognition by rival unions violates
Section 8 (a) (2) if he recognizes one of them on the basis of a card-showing.
23N. L. R. B. v. Indianapol)s Newspapers, Inc, 210 F. 2d 501 (C A. 7) :
The Act does not require, however, that this neutrality continue until the last
dissident voice is stilled. . . . Although the prize of recognition must not be em-
ployed coercively to influence the employees in making their decision, once indis-
putable proof of majority choice is presented to the employer, the Act imposes on
him a duty to award recognition to the agent so chosen by his employees.
34Spitcer Moto) Sales, Inc, 102 NLRB 437, enfd 211 F. 2d 235 (C. A. 2).
21 See N. L. R B. v. Corning Glass Works et at, 204 F. 2d 422 (C A 1).
111 find no merit in the contention advanced by the General Counsel in his brief that
the letter, dated June 17, 1954, from the Independent's attorney to Merrill Pottle, secretary
of the Union, which contains the statement that the Independent "is now recognized as
the bargaining agent for the group it represents," absent proof that Respondent was in
any way responsible for the composition of the letter and absent proof that its contents
were made known to the employees generally, is evidence of Respondent's bad faith in
granting recognition to the Independent.
21 The mere fact that an employer is engaged in collective bargaining with one union
at the time lie receives a claim from another labor organization that the latter represents
a majority, normally does not excuse the employer from investigating such conflicting
claim and from discontinuing further bargaining with the first union if such claim raises
a genuine question concerning representation 1 Sp)ewak d Sons, 71 NLRB 770, 771,
enfd. as to this point 179 F. 2d 695 (C. A. 3).
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dependent,- the fact that the, Steelworkers also had authorization cards from a
majority of the employees did not raise a timely question concerning representation.
' Upon the basis of the foregoing, I do not find that the Respondent unlawfully
assisted the Independent by recognizing and bargaining collectively with it.
2. With respect to the union-security provision -
The agreement which was concluded on July 26, 1954, by the Respondent and
the Independent contains in article II, section 3, the following provision relating to
union security:
All employees of the Company in the unit covered by this Agreement shall
become members of the Union within thirty-one (31) calendar days after the
effective date of this Agreement and shall remain members of the union in
good standing for the term of this Agreement. .. .
The effective date referred to in the above-quoted clause is July 22, 1954. This
is apparent upon reference to article I, section 1, of the contract, which provides,
"This agreement shall take effect as of July 22, 1954 " and the interpretation
given the union-security clause by the parties. Thus, Merrill Pottle, the Independ-
ent's secretary-treasurer, testified that on August 4 and again on August 17, 1954,
the Union posted notices on the bulletin boards in Respondent's plants which warned
employees that under the terms of the collective-bargaining agreement with the
Respondent they were required to join the Independent not later than August 22,
1954, subject to the penalty of discharge for failure to do so. The first notice, in
pertinent part, read:
All employees of AMI are required to sign the obligation of the Independent
Machine Workers Union of Lancaster, 0. within 30 calendar days after date
the contract was dated. The contract was dated July 22, 1954.
The second notice, in pertinent parts, read:
This notice has been posted to remind the remaining employees who have not
signed their obligation cards that August 22, 1954 is the closing date for signing.
Any employee who does not sign the obligation of the Independent Machine
Workers Union will be discharged by the Company at the request of the Union.
It is the desires of the Union and its members that no employees will have to
be discharged. However it is our intention to abide by the rules with no
exception.
That the Respondent adopted the foregoing interpretation of its agreement with
the Independent and gave effect to the union-security clause of the contract in accord-
ance with such interpretation may be inferred from the circumstance that the Inde-
pendent's notices were displayed on the plants' bulletin boards for several weeks' and
had come to the attention of Frank Twiss, Respondent's vice president and general
manager, without Respondent in any respect disavowing the warnings therein
contained.
The union-security proviso of Section 8 (a) (3) of the Act reads, in relevant part:
Nothing in this Act . . . shall preclude an employer from making an agreement
with a labor organization . to require as a condition of employment member-
ship therein on or after the thirtieth day following . . . the effective date of
such agreement. .. .
This provision of the Act is unambiguous. It is clear therefrom that a clause
providing for a grace period of less than the specified 30 days violates the Act. Thus,
a union-security clause which provides a grace period of 29 days does not satisfy
the minimum requirements of the Act and is unlawful. Chesler Glass Co., 92 NLRB
1016, 1017.28
The contract herein having been finally consummated on July 26, 1954, the
,employees were entitled , under the statute, to a minimum period of 30 days, which
would have expired on August 25, 1954, within which to join the Independent. The
contract, however, allowed the employees a grace period of only 27 days from the
28 In some circumstances where a union -security clause does not expressly accord em-
ployees the required grace period, the statutory provision will be read into the agreement.
N. L. R. B. v. United Electrical, Radio and Machine Workers of America, Local 622 (UE),
203 F. 2d 673 (C. A 3). Similarly, parol evidence may rescue an ambiguous or in-
artistically worded union-security clause. Krambo Food Stores , Incorporated, 306 NLRB
870, 873, and Kaiser Aliunitnum d Chemical Corporation, 98 NLRB 753, 754.
ASSOCIATED MACHINES, INC. 403
date on which it actually became effective (not the retroactive effective date), and
therefore exceeded the degree of union security permitted by Section 8 (a) (3)
of the Act. Accordingly, the Respondent by entering into and maintaining in force
an agreement containing such unlawful union -security provision has violated Section
8 (a) (1), (2 ) and (3 ) of theAct29
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of the 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 of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
it will be recommended that it cease and desist therefrom and that it take affirmative
action designed to effectuate the policies of the Act.
It has been found that the Respondent has violated Section 8 (a) (1), (2), and
(3) of the Act by entering into and giving effect to a collective -bargaining agreement
with the Independent containing an unlawful " union-security provision . In accordance
with the Board 's established policy in such cases, it will be recommended that the
Respondent withdraw ' rei ogiiition from the Independent as the collective-bargaining
representative of its employees and cease giving effect to its contract , entered into
in July 1954 , with the Independent , `or to any modification , extension , supplement,
or renewal thereof, unless and until the Independent shall have been certified by
the Board as the collective -bargaining representative of the employees concerned.30
Nothing in this recommendation , however , shall be construed to require the Respond-
ent to vary or abandon those wage, hour , seniority , or other substantive features of
the relationship between Respondent and its employees which may have been estab-
lished pursuant to the aforesaid agreement.
Upon the basis of the foregoing findings of fact , and upon the entire record in
this case, I make the following:
CONCLUSIONS OF LAW
1. By entering into and continuing in effect, during the times material hereto,
the unlawful union-security provision in its collective-bargaining agreement with
the Independent, the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (1), (2), and (3) of the Act.
2. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
80 Prsntz Leather Company, Inc., et al., 94 NLRB 1312 Accord . Tacoma Harbor
Lumber and Timber Co., 108 NLRB 930; and Acme Mattress Company, Inc., 91 NLRB
1010. 1012, enfd 192 F. 2d 524 (C. A 7).
so Ebasco Service Incorporated , 107 NLRB 617; Printz Leather Company, Inc, supra;
Strauss Stores Corporation , at al, 94 NLRB 440; Julius Resnick, Inc, 86 NLRB 38; Lee's
Department Store v.'N. L R B, 195 P. 2d 411 (C. A. 9). But see N. L. R. B. v. Gaynor
News Company, Inc, 197 P 2d 719 (C A 2), affd 347 U. S 17
APPENDIX A
NOTICE To ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL withdraw and withhold all recognition from Independent Machine
Workers Union of Lancaster, Ohio, as the collective-bargaining representative
of any of our employees for the purposes of dealing with us concerning
grievances, labor disputes, wages, rates of pay, hours of employment, or other
conditions of employment, unless and until said labor organization shall have
been certified by the National Labor Relations Board as such representative.
387644-50--vol. 114- 27 .
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT perform , enforce, or give , effect to our contract entered into in
July 1954 with Independent Machine Workers Union of Lancaster , Ohio, or to
any modification , extension , supplement , or renewal thereof unless and until
said organization shall have been certified by the National Labor Relations
Board.
WE WILL NOT encourage membership in said Union, or any other labor
organization , by discriminating against employees in regard to hire, tenure
of employment, or terms and conditions of employment.
All our employees are free to become, remain , or refrain from becoming members
of, any labor organization , except to the extent that this right may be affected by
agreements in conformity with Section 8 (a) (3) of the National Labor Relations
Act, as amended. _
ASSOCIATED MACHINES, INC.,
Employer.
Dated---------------- By------------- - -------------=----------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered , defaced , or covered by any other material.
Rheem Manufacturing Company and United Steelworkers of
America, CIO , Petitioner . Case No. 4-RC-f3614. October 13;
1955 -
SUPPLEMENTAL DECISION AND CERTIFICATION OF
REPRESENTATIVES
On June 1, 1955, pursuant to a Decision and Direction of Election
of the National Labor Relations Board,' an election by secret ballot
was conducted under the -direction and supervision of the Regional
Director for the Fourth Region among the employees of the Employer
in the unit found appropriate by the Board. Upon the conclusion of
the Election, the parties were furnished a tally of ballots. The tally
showed that there were 187 votes cast, of which 134 were for the
Petitioner, 51 were for the Intervenor, and 2 ballots were challenged.
Thereafter the Intervenor filed timely objections to the election. After
an investigation, the Regional Director, on June 7, 1955, issued and
duly served upon the parties his report on objections, which is at-
tached hereto. In his report the Regional Director made various
factual findings, and concluded that the Intervenor's objections lacked
merit, and recommended that they be dismissed and that an appropriate
certification be issued by the Board. The Intervenor filed timely ex-
ceptions to the Regional Director's report on objections.
The Board has considered the Intervenor's objections, the Regional
Director's report on objections , and the Intervenor 's exceptions thereto.
For reasons hereinafter stated we find the Intervenor's objections and
exceptions to be without merit. We therefore deny the Intervenor's
request that a hearing be held on its exceptions to the Regional Di-
rector's report.
Not reported in printed volumes of Board Decisions and Orders.
114 NLRB No. 74.
1
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