Associated Spring Corp.

National Labor Relations Board - Board Decisions

Oct 29, 1954

110 N.L.R.B. 660 (N.L.R.B. 1954)

660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case , the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. International Union, United Automobile Workers of America, AFL, is a labor
organization within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the employment of Harold L. Mobley, the Re-
spondent has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (a) (3) of the Act.
3. By interfering with, restraining , and coercing employees in the exercise of rights
guaranteed by Section 7 of the Act, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
4. 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.]
WILLIAM D. GIBSON CO ., DIVISION OF ASSOCIATED SPRING CORPORATION
and DIE AND TOOL MAKERS LODGE No . 113, INTERNATIONAL ASSOCIA-
TION OF MACHINISTS , AFL and UNITED STEELWORKERS OF AMERICA,
CIO, AND UNITED STEELWORKERS OF AMERICA , CIO, LOCAL UNION
No. 3485. Case No. 13-CA-1256 . October 29,195.4
Decision and Order
On September 15, 1953, Trial Examiner Robert E. Mullin issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in the unfair labor practices alleged in
the complaint, except for two minor instances of interrogation not
warranting a remedial order, and recommending that the complaint
be dismissed in its entirety, as set forth in the copy of the Intermediate
Report attached hereto. Thereafter, the General Counsel and the Ma-
chinists filed exceptions to the Intermediate Report and supporting
briefs. The Respondents and the Steelworkers filed briefs in support
of the Intermediate Report.'
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 Interme-
diate Report, the exceptions and briefs, and the entire record in the
case , and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner insofar as they are consistent with this
Decision 2
I In addition, the Respondent also filed a brief in {eply to the General Counsel's and the
Machinists' exceptions and briefs. The reply brief is hereby accepted.
3 The Intermediate Report contains certain minor misstatements or inadvertencies, none
of which affects the Trial Examiner's ultimate conclusions . Accordingly , we note the
following corrections :
The Board held a hearing on the petition in the representation case involved herein
•on September 22 and 23, 1952.
After receiving the Steelworkers' telegram dated September 19, 1952, the Respondent's
general manager, Goff, called a meeting of the employees named in the said telegram on
September 23, not on September 21.
110 NLRB No. 88.
WILLIAM D. GIBSON CO. 661
1. We agree with the Trial Examiner that the Respondent did not
violate Section 8 (a) (1), (2), or (3) of the Act by executing the
collective-bargaining agreement with the Steelworkers on July 28
covering the Respondent's production and maintenance workers, af-
ter the Machinists had requested recognition for the Respondent's
toolroom employees and had filed a representation petition with thi,
Board. For the reasons stated below, the majority believes that the
Midwest Piping doctrine,' relied upon by the General Counsel and the
Machinists to establish that the Act has been violated, should not
be applied to the situation here presented 4
As noted in the Intermediate Report, the Steelworkers, since Board
certification in January 1945, has been the exclusive bargaining repre-
sentative of the Respondent's approximately 500 production and main-
tenance employees, including the toolroom employees whom the Ma-
chinists desires to represent. Before expiration of the Steelworkers'
contract on April 1, 1952, and several months before the Machinists
began organizational activities at the Respondent's plant, the Re-
spondent and the Steelworkers instituted negotiations for a new
agreement and reached accord on all provisions of a new contract
except wages and union security. With respect to these two matters,
the parties had been following the pattern established in the "Big
Steel" contracts. As "Big Steel" had not executed new contracts at
the time the Respondent and the Steelworkers were negotiating to
replace their April 1 agreement, they deferred further negotiations
on wages and union security and orally extended their expiring agree-
ment on a day-to-day basis pending execution of the new "Big Steel"
contracts.
On July 25, 1952, the Machinists requested recognition as the bar-
gaining representative for the Respondent's approximately 30 tool-
room employees and filed a representation petition with the Board.
At about that time, "Big Steel" concluded new contracts and, on July
28, the Respondent and the Steelworkers reduced their completed bar-
gaining agreement to writing. The following morning the Respond-
ent received a copy of the Machinists' representation petition from the
Board, and thereafter withheld recognition from the Machinists. Sub-
sequently, the Board held a hearing in the representation case and then
issued a Decision and Direction of Election,5 ordering a self-deter-
3 The doctrine (lei ives its name from the case entitled Midwest Piping & Supply Co,
Inc , 63 NLRB 1060.
4In view of our determination herein , we find it unnecessary to pass upon the Trial
Examiner 's grounds for dismissing the 8 ( a) (1), (2), and ( 3) allegations of the complaint.
ITVilliani D. Gibson Company, Division of _4s,ociated Spring Coiporatson , Case No.
13-RC-2876, issued November 4, 1952 (not published in printed volumes of Board Deci-
sions and Orders).
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mination election for the toolroom employees.6 Instead of proceeding
to an election, the Machinists filed the charge in this case.
As indicated above, the General Counsel and the Machinists con-
tend that the Midwest Piping doctrine requires a finding that the
Respondent violated the Act by executing the July 28 agreement with
the Steelworkers at a time when the Machinists' representation peti-
tion was pending. We find no merit in this contention.
The Midwest Piping doctrine, as enunciated in the named case and
as developed in later cases,' established a general prohibition against
employer execution of a bargaining agreement with 1 of 2 or more
rival unions making conflicting representation claims for his employ-
ees, where representation proceedings were pending before the Board.
Under that doctrine, execution of a bargaining contract in the circum-
stances indicated constituted interference with the Board's function
of resolving the representation question and also a breach of the
Employer's obligation to remain neutral. Upon reexamination of
the doctrine, we are persuaded that the policies of the Act will best
be served if the Midwest Piping doctrine is not applied to situations
where an employer contracts with a labor organization which is an
incumbent union actively representing the employer's employees.
Where, as here, a labor organization has been representing an em-
ployer's employees, stability in industrial relations, the primary objec-
tive of the Act,8 requires that continuity in collective-bargaining agree-
ments be encouraged, even though a rival union is seeking to displace
an incumbent. Furthermore continuance of a preexisting collective-
bargaining relationship%between an incumbent union and an employer
does not encroach upon the right of the employees to change their
bargaining representative. For, as the Board has uniformly held-
and indeed decided in the representation case here involved-any
contract entered into by an incumbent union and an employer after
a rival union has made a timely representation claim does not bar
an election in the representation proceeding. Thus, rejection of the
Midwest Piping doctrine in the circumstances of this case does not
interfere with the toolroom employees' right to replace their bargain-
ing representative in an appropriate Board proceeding, and it also
permits the employees to enjoy, without interruption, the benefits of
a previously established bargaining relationship.
We conclude therefore, that in the interest of industrial stability,
which uninterrupted collective bargaining achieves, an employer
should be permitted to continue recognition of an active, incumbent
6 The Board added several toolmakers in other departments to the unit originally sought
by the Machinists and excluded certain noncraft employees in the toolroom whom the
Machinists sought to include
'' For example , Wtilltiam Penn Broadcasting Company , 93 NLRB 1104 ; Ensher, Alex-
ander & Barsoom, Inc , 74 NLRB 1443: and I. Spiewak & Sons, 71 NLRB 770.
8 Colgate-Palmolive-Peet Co v. N L R. B , 338 U. S 355
WILLIAM D. GIBSON CO. 663
labor organization and to contract with it until such time as the union
is displaced as the bargaining representative of the employer's em-
ployees in an appropriate Board proceedings.9 In conformity with
the views expressed above, we find that the Respondent did not violate
Section 8 (a) (1), (2), or (3) of the Act by continuing to deal with
the Steelworkers and by signing the July 28 contract.
2. In view of our conclusion that the Respondent's July 28 contract
with the Steelworkers was valid, we find that it was not unlawful for
the Respondent to discharge those employees who did not comply with
the union-security provisions of the agreement, by failing to maintain
membership in good standing in the Steelworkers. For this reason, we
also find that the Respondent did not violate the Act by requiring the
reinstated employees to regain their good standing in the Steelworkers
and to waive their claims to back pay as conditions for reinstatement.
3. We have found that in the circumstances of this, case the Respond-
ent was legally entitled to continue its contractual recognition of the
Steelworkers, notwithstanding the pendency of the Machinists' repre-
sentation petition. It follows that, absent unlawful conduct, the Re-
spondent should not be required to recognize the Machinists. until such
time as that organization may be certified by the Board as the bargain-
ing representative of the Respondent's toolroom employees. We find
therefore that the Respondent lawfully refused to recognize the Ma-
chinists without a Board certification. 10 Accordingly, we shall dismiss
the 8 (a) (5) allegations of the complaint.h1
[The Board dismissed the complaint.]
MEMBER RODGERS, dissenting in part :
On July 25, 1952, the IAM, holding cards from a majority of all the
employees in the Employer's toolroom, requested the Employer to bar-
gain with that Union for these employees. On the very same day the
IAM backed and substantiated that request by filing a petition for an
election among the toolroom employees-a unit, which this Board has
consistently found to be appropriate.
Three days later, notwithstanding this demand, this petition and
question of representation which they raised, the Employer entered into
a contract with the Steelworkers covering all of its employees, includ-
ing those petitioned for and represented by the IAM. The contract
between the Employer and the Steelworkers contained a union-security
9 To the extent that prior Board decisions involving the Midwest Piping principle are
inconsistent herewith, they are hereby overruled.
10 This determination makes it unnecessary to pass upon the Trial Examiner's other
grounds for dismissing the 8 (a) (5) allegations of the complaint.
11 We adopt the Trial Examiner's recommendation that no remedy be ordered with re-
spect to the two isolated instances of interrogation which he found were violative of Sec-
tion 8 (a) (1). Without regard to the Trial Examiner's substantive findings, we find,
in the circumstances of this case, that no remedial order is warranted.
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
provision which was vigorously enforced-at least as to the IAM ad-
herents. By September 26, 17 IAM adherents had been removed from
their jobs, the wishes of the individual workers had been completely
frustrated, and the standing of the IAM completely destroyed.
These facts were reported to the National Labor Relations Board.
A complaint was issued. A hearing was held. The Trial Examiner,
after finding that the Employer was fully aware of the IAM's ma-
jority claim before it signed with the Steelworkers, found no viola-
tion of law. On appeal to the Board in Washington, a majority of
the Board by its decision now sustains the Trial Examiner, reverses
the precedents, and places its stamp of approval on this entire and,
in my opinion, sordid transaction.
By this ruling the majority now gives to every employer a complete
and legal formula for destroying any organizational activity, by any
outside union, for overriding the rights of the individual employee,
for subverting any efforts at craft severance, and for perpetuating
at his pleasure any union of his favor or choosing.
For the reasons set forth below, I would find that the Respondent
violated Section 8 (a) (1), (2), and (3) of the Act by executing and
enforcing its July 28, 1952, contract with the Steelworkers, but that
it did not violate Section 8 (a) (5) by refusing to honor the Ma-
chinists' request for recognition on July 25,
It has long been established that where employees are confronted
with a choice of bargaining representatives, the employer may not
accord such treatment to one of the rivals as will give it improper
advantage or disadvantage in its contest for the employees' favor.13
Basically, this is no more than a recognition of the obligation which
the Act imposes upon employers to keep hands off when their em-
ployees are seeking to exercise their guaranteed right of freely choos-
ing a bargaining representative. 14 If, therefore, the employees'
freedom of choice is to be preserved, employer conduct, at this critical
time, must be subjected to careful scrutiny. Accordingly, it has been
consistently held that where an employer is confronted with rival
claims and preferentially grants exclusive recognition to one of the
rivals, he commits an unfair labor practice.15
That one of the rivals for the employees' choice is an incumbent
union, currently recognized by the employer, does not, we have held,
relieve the employer of his obligation to maintain strict neutrality if
the petition filed by the competing union "has a character and time-
liness which creates a real question concerning representation." 16 It
12 Under all the circumstances, I deem it unnecessary to pass upon the other issues
raised by the complaint which are discussed in the Intermediate Report
18 N L. R B. v Waterman Steamship Corp., 309 U. S. 206, 226.
14 N L R B . v Jones & Laughlin Steel Corp ., 301 U S 1, 33
16 Harrison Sheet Steel Company v . N L. R B ,194 F 2d 407 (C. A. 7).
16 William Penn Broadcasting Company, 93 NLRB 1104.
WILLIAM D. GIBSON CO. 665
is the existence of this real question of representation, therefore, and
not, as the majority would find, the presence of an incumbent union or
the need for industrial stability, that is determinative of the require-
ment of neutrality in this case. I would certainly find, unlike the
Trial Examiner and Member Murdock, that the competing claims of
the two labor organizations involved in these proceedings clearly dis-
closed a real question concerning representation as this Board has
traditionally interpreted that concept.17
Once we have established that the question concerning representa-
tion exists, there can be, to my mind, but one conclusion; namely, that
by negotiating with the Steelworkers, the Company has violated the
neutrality required of it. For no one can deny that such conduct
bestows immeasurable prestige and advantage upon the Steelworkers
and to that extent effectively supports that organization to the detri-
ment of the competing Machinists. Unquestionably, this conduct
would constitute a violation of Section 8 (a) (2) by criteria consist-
ently recognized by the Board and approved by the courts." Since
this is so, I fail to see how we may now justify the conduct or dis-
charges made in consequence of it, "in the interest of industrial stabil-
ity, which uninterrupted collective bargaining achieves." For, if ever
there is a legal principle that we characterize as "well settled," it is
the one first enumerated by the Court of Appeals for the Ninth Circuit
in N. L. B. B. v. Star Publishing Co.19 and repeated by other courts 2e
that "the Act prohibits unfair labor practices in all cases. It permits'
no immunity because the employer may think that the exigencies of
the moment require infraction of the statute. In fact, nothing in the
statute permits or justifies its violation by the employer." If, there-
fore, in the face of such well-settled law, this Board now holds that
while a question concerning representation exists, an incumbent union
and the employer may enjoy a privileged exemption from the opera-
tions of the statute, we are serving notice upon all that incumbency
may be synonomous with perpetuity. Under such circumstances in-
dustrial stability, alone, would dominate the resolution of all represen-
tation problems before the Board. Indeed the majority emphasizes
this by characterizing stability in industrial relations as "the primary
objective of the Act." In the recurring instances in which we have
chosen between freedom of choice and stability ,"' we do not appear to
17 Gulf Shipstide Storage Corporation ., 91 NLRB 181 , 210-212; Ensher, Alexander cE
Barsoom, Inc , 74 NLRB 1443; Midwest Piping and Supply Co. Inc , 63 NLRB 1060
is Fogel Refrsge7 ator Company, 82 NLRB 1302, 1305, Crosby Chemicals, Inc., 85 NLRB
791, 793-795 , enfd, 188 F . 2d 91 (C. A. 5) ; Crowley's Milk Company, Inc, 88 NLRB 1049,
1050. enfd , 208 F. 2d 444, 445 (C A. 3). N. L. R. B v Braswell Motor Freight Lines,
209 F 2d 622 , 623-624 (C A 5) ; N. L. R. B. v. National Container Corp., 211 F. 2d 525,
536 (C A. 2).
39 97 F. 2d 465, 470.
20 N. L. R. B v. Hudson Motor Car Co., 128 F. 2d 528, 531, 532-533 (C . A. 6) ; McQuay-
Norris Mfg Co. v N. L. R B , 116 F. 2d 748, 752 (C A 7)
21 See for example : Shtirlsngton Supermarket Inc., 108 NLRB 579 (1-year certification
rule).
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have resolved the basic conflict of which of these two concepts is pri-
mary and which is secondary.22 I am not disposed to say that this
judgment be made at all, much less in the context of this case.
As I perceive the function of this Board, it is to provide a freedom
of choice to employees in an atmosphere of relative impartiality. The
majority's decision provides the opposite. It removes the choice, con-
trary to the majority's assertion, by effectively destroying the oppo-
sition. And it establishes partiality to the same degree that it es-
tablishes a factual basis for a finding that Section 8 (a) (2) has been
violated. Under such circumstances, it is completely unrealistic to
insist, as the majority does, that its holding "does not interfere with
the toolroom employees' right to replace their bargaining representa-
tive in an appropriate Board proceeding." While that is technically
true, we cannot gainsay the effect of the union-security provision in the
contract which the Board now approves. Seventeen toolroom em-
ployees were discharged. Although 12 of them have been reinstated
upon compliance with the Steelworkers' membership requirements, I
am persuaded that all of them have suffered material interference in
their "right to replace their bargaining representative in an appro-
priate Board proceeding." In the face of this Board-sanctioned op-
position, exercising such a right would, I fear, require a hardier spirit
than the average toolmaker possesses. And I fail to see what comfort
he would derive in the knowledge that by its decision, the majority
"permits the employees to enjoy, without interruption, the benefits
of a previously established bargaining relationship." Since the very
essence of this proceeding is the perpetuation of the bargaining rela-
tionship, it would be more appropriate to say that the Board's decision
forces, not permits, the toolroom employees to abide a bargaining re-
lationship they consider of no benefit to them and which they wish
to be rid of.
Under all of the circumstances of this case, therefore, I would find
that the Employer, by its execution of the July 28 contract with the
Steelworkers, thereby granting support and assistance to that labor
organization to the detriment of the Machinists, violated Section 8 (a)
(1) and (2) of the Act. Furthermore, since I cannot subscribe to the
proposition that the incumbency of a labor organization prevents a
question of representation from arising, I would find that the em-
ployer's breach of neutrality by executing a contract at such a critical
period constitutes an unfair labor practice and establishes the con-
22 The majority's reliance upon Colgate-Palmolive-Peet Co v N. L R. B., 338 U. S.
355, is misplaced In that case the Supreme Court had before it a case arising under the
original Wagner Act in which the legality of the closed shop was in issue. It is undoubtedly
tine as the Court held, that the primary objective of Congress in enacting the Wagner Act,
as illustrated by the approval of the closed shop, was "to achieve stability of labor rela-
tions " It is significant however, that a subsequent Congress , in enacting the Taft-Hartley
Act, specifically prohibited the closed shop in the interest of employee freedom of choice.
WILLIAM D. GIBSON CO. 667
tract and the union-security provisions as unlawful . This, by all the
precedents of Board and court, constitutes discrimination in violation
of Section 8 (a) (3) of the Act. I would so find . I would further
find, therefore , that the discharge of the 17 toolroom employees, pur-
suant to the union -security provisions of this unlawful contract, and
the subsequent reinstatement of 12 of them only after achieving good
standing with the Steelworkers , and waiving their back pay, as condi-
tions of their reinstatement, constituted discrimination against them
in violation of Section 8 (a) (3) of the Act, and interference, re-
straint , and coercion of them with respect to rights guaranteed them
by the Act, in violation of Section 8 (a) (1).
As I have indicated above, I agree with the ultimate conclusion of
the majority that the complaint should be dismissed insofar as it al-
leges that the Respondent violated Section 8 (a) (5) by refusing to
bargain with the Machinists . I do so, however, because in the circum-
stances of this case , which are fully set forth in the Intermediate
Report, I believe that it would have been just as inconsistent with the
Act for the Respondent to have accorded recognition to the Machin-
ists as it was, in my opinion , for the Respondent to have renewed its
contract with the Steelworkers . I can, therefore , hardly* find that
the Respondent 's refusal to bargain with the Machinists constituted
a violation of Section 8 (a) (5).
On the basis of all the foregoing, and the entire record, I would hold
the Respondent in violation of Section 8 (a) (1), (2 ), and (3) of the
Act, but, like the majority , would dismiss the 8 ( a) (5) allegations of
the complaint.
MEMBER MURDOCK , concurring :
I concur in the result reached by the majority that the Respondent
did not violate Section 8 ( a) (1), (2), (3 ), and (5 ) of the Act, but
not for the same reasons. I would reach that result by finding, on the
basis of existing precedent , that the General Counsel failed to estab-
lish the alleged Midwest Piping violation , upon which are premised the
specific unfair labor practices charged against the Respondent. Under
William Penn Broadcasting Company," the Board recognized that
there is no duty on the part of an employer to refrain from continuing
to deal with an incumbent bargaining representative in the face of a
rival claim and petition unless a real question concerning representa-
tion in fact exists; that an essential element for a determination that
such a question existed is that the petitioning union assert its claim
"as to an appropriate unit of employees ;" and that, accordingly, the
General Counsel to establish a prima facie case of Midwest Piping
violation in such a situation must prove that the rival union claim "did
encompass employees in an appropriate unit."
x' Supra
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Machinists' representation claim here was for a departmental
tool room unit which the Board found in the representation proceed-
ing was inappropriate, the appropriate unit being a true craft unit
which included toolmakers in other departments and excluded non-
craft employees in the tool department. Therefore, the Machinists'
claim did not give rise to a -real question concerning representation.
The fact that the Board nevertheless gave the Machinists the oppor-
tunity to go to an election in the craft unit found to be appropriate
does not derogate from the fact that its claim was in an inappropriate
unit. The distinction between departmental and craft units has long
been recognized as a significant one.
Accordingly, because I find that no "real question concerning rep-
resentation" existed when the Respondent executed the July 28 con-
tract with the Steelworkers, as is required by the William Penn deci-
sion to establish a breach of the Midwest Piping doctrine on a contract
made with an incumbent union, I join my colleagues in the dismissal
of all the allegations in the complaint.
I note, however, that the majority, despite its finding that a real
question concerning representation existed, concludes that the com-
plaint should be dismissed because it overrules the William Penn deci-
sion. It holds that an employer is free to make a new contract with an
incumbent union even in the face of a petition by another union rais-
ing a real question concerning representation-that such conduct will
no longer be a violation of the Midwest Piping doctrine. On this
legal issue, without necessarily adopting all the statements in the dis-
senting opinion, I join Member Rodgers in protesting against the
breach in the Midwest Piping doctrine which the majority is today
making by overruling the William Penn decision. If in fact a real
question concerning representation exists, protection of the freedom
of choice of the employees requires that an employer not be permitted
to give potent support to a union by making a contract with it, whether
it be an incumbent union challenged by a rival or one of two outside
unions. The William Penn decision marks the sound limits of per-
missible dealing between an employer and an incumbent union when
it permits him to continue to contract with it despite the pendency of
a rival claim or petition so long as such claim or petition did not in
fact raise a genuine question concerning representation.
Intermediate Report
STATEMENT OF THE CASE
This proceeding , brought under Section 10 (b) of the Labor Management Rela-
tions Act of 1947, 61 Stat . 136 (herein called the Act), was heard in Chicago,
Illinois, from May 4 to 8, 1953, pursuant to due notice to all the parties. The
complaint, issued on March 10, 1953 , amended on March 31 , and further amended
WILLIAM D. GIBSON CO. 669
on April 17, by the General Counsel of the National Labor Relations Board,' and
based on charges duly filed and served, alleged that the Respondent had engaged
in unfair labor practices proscribed by Section 8 (a) (1), (2), (3), and (5) of the
Act. In its answer and amended answer, duly filed, the Respondent conceded certain
facts with respect to its business operations, but denied the commission of the alleged
unfair labor practices.
All parties were represented at the hearing, the General Counsel, the Respondent,
and the Steelworkers by attorneys and the Machinists by a field representative. All
parties were afforded full opportunity to be heard, to examine and cross-examine
witnesses, to introduce relevant evidence, to argue orally, and to file briefs and
proposed findings and conclusions. At the close of its case, Respondent moved to
dismiss the complaint. This motion was taken under advisement; it is disposed of
as will appear hereinafter in this report. Oral argument was waived by the parties.
On June 29, 1953, counsel for the Respondent, the Steelworkers, and the General
Counsel submitted able and extensive briefs which have been fully considered by
the Trial Examiner.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, a Delaware corporation, having its principal office at Bristol, Con-
necticut, and several plants throughout the country, is engaged in the manufacture
of mechanical precision springs for distribution and sale. Its only plant involved in
this proceeding is located in the city of Chicago and known as the William D. Gibson
Co. In the course and conduct of its business at the Gibson plant the Respondent
uses materials annually valued at approximately $2,500,000, of which some 70
percent originates outside the State of Illinois. Annual shipments of finished products
from the same plant are valued at approximately $7,500,000, about 63 percent of
which are transported in interstate commerce between the State of Illinois and other
States of the United States. Upon the foregoing facts, the Respondent concedes, and
I find, that the William D. Gibson Co., Division of Associated Spring Corporation,
is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
The Machinists and the Steelworkers are labor organizations within the meaning
of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background and sequence of events
The principal issues in this case arise out of the efforts of the Machinists to organ-
ize some 30 employees in the toolroom at the Gibson plant where, pursuant to a
Board certification, the Steelworkers have represented the approximately 500 pro-
duction and maintenance employees since about 1944.2 In February 1952, pursuant
to the terms of the current contract (which had a maintenance-of-membership pro-
vision), the Steelworkers notified the Respondent of its desire to terminate the agree-
ment as of April 1. After several bargaining conferences in March, the Company
and the Steelworkers reached substantial accord on all phases of a new agreement
except wages and union security. With respect to these latter issues, the Company's
practice in the past had been geared to the pattern established by the major steel
producers. Since at that time a strike in "Big Steel" over those issues appeared
imminent, on about April 1, the parties agree to defer further negotiations until
the dispute was settled in the basic industry. It is undisputed that at the same time
the parties orally agreed to extend the old contract on a day-to-day basis until a
new agreement was consummated.
Early in July, the Steelworkers and the Company resumed their bargaining on
wages. On about July 21, Clarence Goff, general manager of the Gibson plant,
and Oakley Mills, International representative for the Steelworkers, agreed upon
'The General Counsel and the staff attorney appearing for him at the hearing are
referred to herein as the General Counsel and the National Labor Relations Board as the
Board The above-named Company is referred to as the Respondent and the two unions
involved herein as the Machinists (or IAM) and the Steelworkers.
2 Associated Spring Corporation (The William D. Gibson Co , a division), 59 NLRB 598.
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a wage formula and a final draft of the new contract. Goff then asked that,
before signing the agreement, Respondent's counsel at corporate headquarters in
Bristol, Connecticut, be given an opportunity to review the phraseology in the draft.
This was agreeable to Mills and on July 23, Paul F. Zetnick, works manager, left
for Bristol with a copy of the contract. On July 24, the steel strike was settled
and the public press carried accounts of the union-shop clause to which the major
steel producers had agreed. That same day Respondent's executive board notified
Goff that it would accede to what had become known as the steel formula on the
union shop. Goff immediately telephoned Mills to this effect and the latter assured
Goff that this was agreeable and that as soon as Zetnick returned from Connecticut
with the final draft the union officials would sign. Zetnick arrived back in Chicago
on July 26, a Saturday. On July 28, the following Monday, the company officials
and the Steelworkers signed the contract. That evening the Steelworkers had a
meeting at which the night shift employees ratified the agreement. At another
meeting, held at 8 o'clock the following morning, the day shift took the same action.
Shortly thereafter, Mills told Goff that the employees had ratified the contract with
no dissenting votes.
Later that same morning the Company received from the Regional Office of
the Board a copy of a representation petition 3 which the Machinists had filed late
on the afternoon of July 25, the preceding Friday. William D. Gibson Co.,
Division of Associated Spring Corp., Case No. 13-CA-2876. On the latter date,
the Company had received from that union a request for recognition as the bar-
gaining agent of the toolroom employees but not until after the contract with the
Steelworkers had been signed was the Company served with notice that the Ma-
chinists had filed a representation petition with the Board.
Organizational activity on behalf of the Machinists had begun on July 23, the
preceding Wednesday, when a number of the employees in the toolroom had gone
to the office of Lodge No. 113, and there signed cards in the Machinists. Harold
Wibiral, a toolroom employee and Steelworkers' steward for his department, was
a leader in this move .4 In the period following July 23, Wibiral contacted a num-
ber of his fellow employees and induced them to designate the Machinists as their
bargaining agent. On July 25, the Machinists notified the Company that it repre-
sented a majority of the toolroom employees and requested a bargaining conference.
The Company answered this letter on August 1, at which time it informed the
petitioning union that, pending receipt of word from the Board on the representa-
tion case, it would decline to grant any recognition.
On September 22 to 23, the Board held a hearing on the petition in Case No.
13-RC-2876. On November 4, it issued a decision in which it held that certain
specified employees in the toolroom and, in addition, the toolmakers in two other
departments of the plant might constitute an appropriate unit 5 and "Globalized"
the unit question by ordering an election among the employees of the unit to
determine whether or not the unit should be severed (Cf. Globe Machine & Stamp-
ing Co., 3 NLRB 294).
Prior to this decision, the Steelworkers notified the Company that certain of the
employees were no longer in good standing because of their failure to pay dues and
demanded, under penalty of a strike, that these employees pay their dues or author-
ize deductions by September 26, or be terminated. The Respondent complied
with this demand and when the incumbent union notified the Company on Septem-
ber 26 that 17 named employees were still delinquent the Respondent discharged
them. Of this group, 12 were subsequently reemployed when they were restored
to membership in good standing in the Steelworkers.
B. Contentions of the parties
The General Counsel contends that the Respondent violated Section 8 (a) (1),
(2), and (3) of the Act, by: (1) Executing a union-shop contract with the Steel-
3 At the hearing on this petition, the transcript of which was incorporated in the present
record by stipulation of the parties, Goff testified, without contradiction, that he had
received a copy of the petition by registered mail at about 11 o'clock on the morning of
July 29
* Wibiral had held other offices in the Steelworkers In addition to having served a
term as president of the local he had also served on several contract negotiating committees.
5In his brief the General Counsel conceded that the inclusion of craftsmen from other
departments added five toolmakers to the unit originally sought by the Machinists. It
should be noted further that in the same decision the Board also excluded from the pro-
posed unit certain employees whom the petitioning union had sought to have included
WILLIAM D. GIBSON CO. 671
workers at a time when the Machinists' representation case involving the toolroom
at the Gibson plant was pending before the Board; (2) colluding with the Steel-
workers in circulating an anti-Machinists' petition among the employees; (3) dis-
charging 17 employees in the unit sought by the Machinists and threatening to dis-
charge others for failure to maintain membership in the Steelworkers; and (4) con-
ditioning reemployment of these dischargees on their acquisition of membership
in the Steelworkers. The General Counsel further alleged that the Respondent
violated Section 8 (a) (5) of the Act by refusing to recognize and bargain with
the Machinists on and after July 25, 1952. The Respondent and the Steelworkers
denied that the execution of the contract in question violated the Act or that it
conflicted with the Midwest Piping doctrine,6 denied every allegation of collusion
set forth in the complaint and affirmatively alleged that the contract signed on
July 28 was the result of protracted negotiations, actually concluded sometime
before that date and prior to the advent of the Machinists, and further, that the
subsequent discharges and reinstatements were made pursuant to the plain terms of
a lawful union-security agreement. _
C. The period from July to January
1. The anti-Machinists' petition and events subsequent thereto
Wibiral, principal witness for the General Counsel, testified substantially as fol-
lows. On the afternoon of July 29, Goff called him into his office, told him that the
wage scale in the new contract had been kept confidential up to that time but that he
would give Wibiral a copy so that the latter would be the first to see it, asked whether
Wibiral had joined the Machinists, told him that the Respondent did not want two
unions in the plant, stated that a petition would be circulated in the toolroom request-
ing the Machinists to withdraw their representation case, and solicited him to circu-
late this petition among his fellow employees with the assurance that if he did so he
would never be sorry. According to Wibiral, within 30 minutes after his conversation
with Goff, Clarence Grutter, president of the Steelworkers, brought to him a docu-
ment that Grutter declared was the petition to which Goff had referred. Wibiral tes-
tified that he thereupon solicited the toolroom employees to sign, and, despite per-
sistent efforts, obtained only five 'signatures. He further testified that about 3:30
p. m. on July 29, Goff came into the toolroom and inquired "how is the petition com-
ing" and that the following morning Zetnick, the works manager, asked him substan-
tially the same question.
It was undisputed that on July 30, Goff called all the employees in the toolroom
to his office for a short meeting where he told them that he was concerned because
efficiency in that department had dropped in the past few days, that he felt they
should know what the Company was doing for them in the new'contract, and that
he believed the plant could operate better with only one union. He then had Zetnick
read the new wage schedule for the tool- and die-workers, and concluded the meeting
with the statement that he thought everybody could work together as always.
Goff testified that in his conversation with Wibiral on July 29 he had discussed
the matter of whether the toolroom employees desired another union and asked him
what it was all about. According to Goff, he declared that he could see no advan-
tage to the employees in having another union and that he felt the Steelworkers had
negotiated the best possible contract for the men. He conceded having asked Wibiral
who had brought the Machinists into the shop,7 having stated that he was personally
in favor of one union and having told the employees that "the Company was going to
fight all the way because it didn't want two unions in the plant." Goff conceded that
he heard about the anti-Machinists' petition but he denied having discussed it with
the employees at any time or having asked Wibiral to circulate it, and he denied hav-
ing assured the latter that any personal advantage would be derived by sponsoring it.
He further disclaimed having any subsequent conversation with Wibiral in connec-
tion with the petition. Zetnick likewise denied having asked Wibiral any questions
about the petition either on July 30 or at any other time.
The Steelworkers presented the following testimony as to the genesis and circula-
tion of the petition: Grutter, an employee of the toolroom, as well as president of
Local 3485, testified that it was conceived and prepared by the officers of the local
on the evening of July 28, that the next day he asked Goff if he would permi. his
secretary to type a petition,8 that Goff inquired as to its character and then referred
s Mtidacest Piping & Supply Co , Inc , 63 NLRB 1060
Wibiial told him that he was not responsible
Prior to this time, Goff's secretary had occasionally typed notices for the union.
672 DECISIONS OF NATIONAL .LABOR RELATIONS BOARD
him to the stenographer who typed it for Grutter The latter denied that he ever sub-
sequently showed the petition to Goff or that he had at any time consulted with the
-management as to its circulation. According to Grutter, after he began circulating
-the petition, he was criticized by a fellow employee on the ground that his action was
a usurpation of the steward's functions, whereupon Grutter stated that if the em-
ployees preferred he would give the petition to Wibiral, the departmental steward.
Grutter further testified that he then, after having obtained two signatures in addi-
tion to his own, turned the petition over to Wibiral and later in the day was instru-
mental in getting two additional employees to sign. Grutter's version of these events
-was corroborated by the credible testimony of other union officers 9 and of 3 of the
4 other employees who signed the petition.10
Wibiral's testimony which linked Goff and Zetnick with the petition was uncon-
vincing to the Examiner. Apart from the demeanor of the General Counsel's prin-
cipal witness, I consider the following contradictory aspects of his testimony signifi-
cant: (1) Wibiral testified that his conversation with Goff took place about 1:30 p. in.
on July 29, after his return from a doctor's office, and that later in the afternoon
he circulated the petition among the employees on his shift. His timecard, however,
showed that after being out that afternoon he returned to the plant at 4:30 p. in.,
the hour when the day shift was going off work. (2) According to Wibiral, it was
at this meeting with Goff that he learned the wage provisions of the new contract
for the first time and that Goff revealed them to him although they were still highly
confidential. Yet, on subsequent cross-examination, Wibiral conceded that several
hours before conferring with Goff he had attended a union meeting held for the
purpose of ratifying the contract. Wibiral, professedly, had difficulty understanding
what transpired at this meeting. From other witnesses, however, it is plain that
the sole purpose of the meeting was to obtain the assent of the employees to the
new contract; that the new agreement was discussed there by the members of the
bargaining committee; and that an official of the Steelworkers read off to the assem-
bled members the entire wage schedule provided therein." In view of these incon-
sistencies in Wibiral's version of events it is of some consequence that on cross-
examination he frankly conceded a strong dislike for Zetnick and that Minor Jackson
credibly testified that during this period, in a conversation with Grutter and Wibiral,
the latter declared that "Paul Zetnick had double-crossed him at one time and he
would do anything under the sun to get back at him." Because of the doubt reflected
on Wibiral's testimony in the light of the foregoing considerations, it is my conclu-
sion that the testimony of Goff, Zetnick, and Grutter, in connection with these
incidents, is the more reliable and I so find.
In further support of his allegation that the Respondent had encouraged the
Steelworkers and discouraged the Machinists, the General Counsel offered some
evidence in connection with an incident that occurred several weeks before the
discharges. This was an occasion at some time early in September 12 when, accord-
ing to Wibiral, Goff called him into his office, upbraided him for unrest in the
toolroom, and accused him of having brought the Machinists into the plant. Goff
denied having made any accusations directed to Wibiral's union activities but did
testify that he reproved both Wibiral and Grutter, the latter also having been called
to the manager's office, because of what he described as rumors and propaganda
that the two employees accused each other of initiating and thus keeping the entire
plant in a state of turmoil. Goff concluded the meeting by admonishing both
Wibiral and Grutter to quit talking and get to work. Grutter's testimony as to this
incident corroborated Goff. The Respondent contended that production in the tool-
room during the preceding weeks had dropped to an alarming degree as a result
of rumors and unrest arising out of the interunion dispute, that Goff felt that Wibiral,
as a leadman and as one of the highest paid employees in that department, was at
least partly responsible for the lack of order, and that the general manager justifiably
called the employee in on this occasion for disciplinary, purposes and to remind both
Wibiral and Grutter of their responsibility in this regard. Because I am persuaded
that Goff and Grutter gave the more credible testimony in connection with this
episode I am unable to accept the General Counsel's argument that this conference
was called by the Respondent to give aid and comfort to the Steelworkers.
B-Myron Perry and Minor Jackson.
10 Carl Essl, Bernice Zalewski, and Fritz Esdar Alfred Henke, the other signatory to
the petition, was not called as a witness
11 This finding is based on the credited, undenied testimony of Perry and Grutter.
12 None of the witnesses was able to fix the exact date.
WILLIAM D . GIBSON CO. 673
2. The discharges
All of the employees of the toolroom here involved had signed checkoff cards
in the Steelworkers under the old contract . Pursuant to these authorizations the
Company regularly deducted monthly dues until the new contract was signed . During
the summer of 1952 the Steelworkers raised their monthly dues from $2 to $3.
As a result , during August and September , officials of the local endeavored to
secure new checkoff cards from all the employees . By mid-September there remained
20 employees in the toolroom who had not signed such authorizations . On Sep-
tember 19, Local No . 3485 sent Goff the following wire:
The following members have refused to resign check-off cards and are in
violation of the union -security clause of our contract . We therefore demand
the Company shall sign up these members by Tuesday September 23rd or we
shall be forced to shut the plant down Wednesday September 24th. This
action has the approval of District Director Joseph Gegmano and the Executive
Board of Local 3485. The following are the delinquent members, . . . Christ
Clausen . . . Frank Skores . . . Ben Fodor . LeRoy Heinz . . . Joseph
Rehling . . . John Wass . . . George Naughton . . . Joseph lacullo . . .
Thorleif Thorsen . . . Edward Breh . . . John Herlein . .. Joseph Bleyer
. . . Otto Theil . . . Rudolph Razl . Harold Wibiral .. . Gustav Thiel
Lester Noren . . . Reinert Erickson . . . L. Czechowski . . . Henry
Gregor.
Goff received the wire at his home during the weekend . On the following Monday,
September 21, he called all those named in the message to a meeting at his office.
There he read the telegram and told the employees that it appeared the plant might
be closed the following day although he was still hoping some arrangement could
be made to prevent that development . Goff testified that he probably told the
employees "that the thing to do was to sign . check-off cards and the plant
would be open tomorrow ." He also testified that this same day he told Grutter
that the Company did not consider the telegram an adequate basis for discharging
any employees. The next day Myron Perry , financial secretary of the local, con-
ferred with counsel for the Steelworkers as to the composition of a revised message
and then sent the following wire to Goff: 13
The following people have not paid their dues and therefore are not in good
standing with this union . . . . [here naming the 20 employees listed in the
telegram of September 197.
Under the modified union shop clause of our collective bargaining agree-
ment, these people must remain in good standing or are subject to discharge.
We insist that this provision of the contract be enforced , and that . . . these
people be notified that they must pay their dues or authorize deductions by
Friday September 26, or be terminated . We insist that the Company give such
notice to these members by noon September 25th or we will be forced to close
the plant down . This action has the approval of Joseph Germano, District
Director United Steel Workers of America, and the Executive Board Local 3485.
After receipt of this message on September 24, Goff again called the individuals
named therein to his office , read the telegram , made no comment other than to
state that the Company would have to abide by the contract , and then sent them back
to work. The next day, Goff sent the following wire to the Steelworkers
This is to advise you that we have notified the employees listed in your tele-
gram dated September 24, 1952, that they must pay their dues or authorized [sic]
deduction by Friday , September 26, 1952, or be terminated. This notice was
given by reading your telegram to the employees listed therein . Please notify
me by the close of business September 26, 1952 of the names of employees who
have not paid their dues by such time and such employees will be terminated.
This action is being taken solely by reason of your demand and in reliance
upon Paragraph C of Section V of the U S Steel agreement, which is incorpo-
rated by reference into our agreement, under which the Union agrees to in-
"The General Counsel endeavored to pi ove that this demand was the result of collusion
between the Respondent and the Steelworkers I can find no basis for this allegation.
Apart , from Goff 's having told Grutter that the Company considered the original wire an
insufficient basis for dischaigmg the employees named , I am convinced , from a review of
the credible testimony of both Grutter and Perry , that the Respondent had nothing fur-
ther to do with its composition.
338207-35-vol 110-44
,674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
demnify the Company for all liability resulting from any action taken for the
purpose of complying with the union security clause.
At the same time Goff sent a wire to B. F. Hanley, recording secretary of the Machin-
ists, in which he quoted the text of the wire received from the Steelworkers on Sep-
tember 24 and stated to Hanley, in connection with that message:
I have read the above telegram to the employees listed therein and have advised
Mr. Perry by telegram that any of such employees who have not paid their dues
or authorized deduction by the close of business on Friday, September 21, 1952
will be terminated as of such time.
On September 26, the Steelworkers notified the Respondent that 17 of the em-
ployees originally listed in the earlier message,14 not having paid back dues or hav-
ing authorized payment of such, were no longer members in good standing. That
afternoon these employees were paid their wages in full and, in addition, their ac-
cumulated Christmas bonus and vacation benefits. The following Monday, when the
entire group returned to the plant, they were given termination slips. The notices
were identical and gave as the reason for discharge that the employee "Has not paid
dues and therefore is not in good standing with U. S. A. C. I. O. 3485." The
form also contained a space where the employee could state his version of the dis-
charge. After receipt of the slips, those affected repaired to the Machinists' hall
for advice and counsel. When they returned, each had typed on his termination
notice the following:
I believe that I have been illegally discharged. The Company and the USA-
CIO had no binding contract covering the craft unit because there was and is
a question of representation for the craft unit filed with the National Labor
Relations Board. The question of representation will be processed by the Na-
tional Labor Relations Board in Washington, D. C.
3. The reinstatements
In October the Company reemployed 11 of those whom it had discharged on
September 26. Shortly after the latter date Zetnick learned that Henry Gregor,
one of the dischargees, was anxious to come back. In a conversation with that em-
ployee Zetnick told Gregor that to return with full seniority it would be necessary
to regain a good-standing membership in the Steelworkers and he volunteered to
put the union officials in touch with him. Soon thereafter several others called
Zetnick in the same connection and were given similar information by the works
manager. Later, Zetnick talked with them again, this time to tell them that he had
arranged for a conference with the Steelworkers on October 12. This meeting was
`held in Goff's office at the plant. Gregor, Wass, Breh, Clausen, Gustav Thiel, and
Bleyer were the employees present. Goff and Zetnick greeted the employees as they
arrived and then left them in the room with Oakley Mills and officials of the Steel-
workers' local. Mills asked the employees to take an oath of loyalty to the Steel-
workers and thereafter each one signed a checkoff card. The day after the meeting
the union officials gave formal notice to Goff that the six employees had been
reinstated to membership in good standing, asked that they be reemployed "effective
as of September 26, 1952, but without any right to pay for the period between their
discharge on September 26, 1952 and the date they return to work," and agreed that
the seniority, pension, and other rights of these employees would not be affected by
their discharge. At the same time the Company received from the Steelworkers a
document signed by the employees in question wherein they waived all claims for
back wages from the date of their discharge until October 12, and released the
Company and the Steelworkers from any liability arising out of their discharge.15
Later that week other employees talked with Zetnick about coming back to work
and on October 15, the latter arranged for Joseph A. Rehling, John Herlein, Frank
Skores, LeRoy Heinz, and Lester Noren to meet with the Steelworkers under the
same circumstances as the previous group had done. Here, Grutter, speaking for
the Steelworkers,is told the five individuals they would have to sign checkoff cards
14 Three of the original twenty, Thorsen, Czechowski, and lacullo, had signed checkoff
authorizations during the week
15 These documents were prepared by counsel for the Respondent
16 There was no credible evidence that either Goff or Zetnick were in the room after the
union officials started talking with the men Heinz testified that he thought Goff was at
the meeting but on cross-examination he was less confident of his recollection in this
regard It is appaient from the credible testimony of Goff that the latter was not only not
WILLIAM D. GIBSON CO. 675
and that it would be necessary to pay up their back dues in order to retain their
seniority. All present thereupon signed the checkoff authorizations as well as the
waiver of back-pay liability which their coworkers had signed on October 12. The
11 reinstated union members were then reemployed. In January, Reinert Erickson
wag likewise returned to the payroll after he had regained good standing in the Steel-
workers in the same fashion as his 11 coworkers had done 3 months before. Erickson
also signed a waiver of back-pay liability similar to that which the others had signed
in October.17 As with the others, Erickson was required to pay up his back dues in
order to be reinstated with his accumulated seniority.
D. Conclusions with respect to the allegations of the General Counsel
1. The alleged refusal to bargain
The Respondent conceded in its answer that at all times subsequent to July 25,
1952, it has refused to bargain with the Machinists. Customarily, the question as to
whether this constituted a violation of Section 8 (a) (5) would turn on a determina-
tion as to whether the Machinists had a majority status within an appropriate unit at
the time of its demand for bargaining.
The parties stipulated that on July 25, there were 31 employees in the unit de-
scribed in the Board's Decision and Direction of Election. On July 23, 15 of the
toolroom employees signed authorization cards in the Machinists.18 Within the
succeeding 10 days some 8 others signed cards. Four of this last group of cards bore
the dates "July 24" and "July 25." 19 Wibiral testified that he solicited these author-
izations from his coworkers and sometime thereafter mailed them to the Machinists'
headquarters. The face of each of these eight cards bears a postage cancellation
stamp dated August 7, making it apparent that they were not mailed until then.
The Respondent argues that this fact throws in serious doubt, if it does not disprove,
Wibiral's testimony that a majority of the toolroom employees signed cards on or
before July 25. While it is true that the fact Wibiral did not mail these cards until
August 7, might indicate that until then he actually had not obtained them, I do not
believe that to have-been the situation here. There was no contest as to the authen-
ticity of the signatures appearing on the cards, and the issue here involved related
only to the accuracy of the figure purportedly reflecting the date of such signature.
From a close examination of the handwriting on the four cards, which are dated
July 24 and 25, however, it is my conclusion that the signer of the card also wrote
in the date that appears thereon. This being so, on the facts present here, it seems
apparent to me that these 4 cards were signed on the dates they bear, thus making 19
cards for the Machinists, or a majority, at the time of the IAM request to bargain.
Since the Machinists had a majority, under normal circumstances the next ques-
tion would be whether the unit which it sought to represent was appropriate. On
July 25, the JAM requested recognition as the bargaining agent for all toolroom em-
ployees.20 By its petition filed in the representation proceeding the Machinists asked
to be certified for a unit of this same description. This position was not adopted by
the Board in its Decision and Direction of Election. Apart from the fact that the
Board left the ultimate determination of the unit question to the employees affected,
present at this meeting but that he did not even learn of it until later. In this he was
corroborated by Perry and Zetnick. Heinz further testified that he thought Zetnick re-
mained at the meeting but in this particular be manifested an even greater inability to
iecall the facts than he had with respect to Goff Perry and Grutter, the other witnesses
piesent, credibly testified that Zetnick had conducted the employees to the meeting room
and then, immediately, departed
17 Erickson testified that the checkoff card which he signed was given to him by S 13.
McHenry, the personnel manager It appears from the credible testimony of Perry, how-
ever, that this situation arose because of the fact that he had no blank cards while at the.
union meeting when Erickson was reinstated and to make it more convenient foi the em-
ployee had told him that he would leave the card for him at the personnel office so that it
could be signed and returned to Perry after Erickson reported for work
is This was at the meeting referred to above (section III, A) Wibiral and otlieis testi-
fied that there were 17 employees at this meeting It is clear, however, that the Machinists
obtained no more than 15 cards from those present
e These cards were signed by Leonard Czecliowski, Fiiedrich Esdar, George Naughton,
and Frank A Skores
20Excludmg office and clerical employees, professional employees, guards, and super-
-visors as defined in the Act, as well as all employees at the plant who did not work in
the toolroom.
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it defined as a potentially appropriate unit a grouping which would exclude certain
employees whom the Machinists sought to represent 21 and include others on whose
behalf the IAM had not asked recognition,22 so that, as conceded in the General
Counsel's brief, five toolmakers employed in departments other than the toolroom
were included in the unit which the Board found should be "Globed." The General
Counsel contends that the departmental toolroom sought by the Machinists was at
least "essentially" appropriate. There is some doubt as to the validity of this con-
tention. Cf. International Broadcasting Corporation (KWKH), 99 NLRB 130. It
is unnecessary to decide the issue, however, since, for another reason, it is my con-
clusion that the refusal to bargain charge must be dismissed. It is, of course, well
settled, as the Board has held, that where an employer in good faith questions the
appropriateness of the unit sought, he cannot be held to have committed an unfair
labor practice in refusing to bargain, even though it is subsequently determined that
the unit claimed by the petitioning union is appropriate. Gazette Publishing Com-
pany, 101 NLRB 1694. Here, since the Board in its subsequent decision concluded
that the unit question should be decided by the employees themselves, there was ob-
viously some basis for the employer to hold a good-faith doubt as to the appropriate-
ness of the unit sought by the Machinists. More important to the the instant problem,
however, is the fact that the Steelworkers constituted a vital, incumbent, certified
union. The Board has held in a closely analogous situation that under these cir-
cumstances for the employer to decline recognition to a rival union, even though that
organization may have a card-check majority, does not constitute a violation of Sec-
tion 8 (a) (5) of the Act. In I. Spiewak cf Sons, 71 NLRB 770 (mod. and enfd. 179
F 2d 695 (C. A 3)) , the Board stated (at p. 771) :
For the respondents to have gone forward to recognize and bargain with the
Amalgamated on the basis of a representative status depending merely on desig-
nation cards or on the number of employees participating in the Amalgamated's
current strike, in disregard of the Association's previous certification, its current
claim and its active and long-standing representation of the employees involved,
would not, in our opinion, have been consistent with the Act We can, there-
fore, hardly hold that the respondents' failure to bargain with the Amalgamated,
whatever their motivation for refusing, constituted a violation of Section 8 (5).
More recently the Board reaffirmed this holding. Indianapolis Newspapers, Inc., 103
NLRB 1750. These decisions are plainly applicable to the instant situation and, in
accordance with them, it is my conclusion that here the Respondent did not unlaw-
fully refuse to bargain with the Machinists.23
One further point on this phase of the case remains to be considered. In support
of his allegation that the Machinists had a majority at the time that union requested
the Company for recognition and bargaining, the General Counsel also sought to
prove that the Machinists maintained this majority in the months thereafter. Thus,
Wibiral testified that in September some 20 of the toolroom employees signed appli-
cations for membership in, and paid initiation fees to, the Machinists. Later in the
hearing, when the General Counsel offered in evidence the applications of these em-
ployees, an objection thereto on the grounds of irrelevance and immateriality was
sustained by the Examiner. A motion for reconsideration of this ruling, made by
the General Counsel after the Board denied his request to appeal from the ruling,
was taken under advisement by the Examiner. Because of my conclusion set forth
above, with respect to the alleged violation of Section 8 (a) (5), the General Counsel's
motion is now denied.
2. The issues and conclusions in regard to the Respondent's execution of a contract
with the Steelworkers
The principal issue in this case is the General Counsel's contention that when,
on July 28, the Respondent signed a new contract with the Steelworkers covering
all the production and maintenance workers at the plant, it violated Section 8 (a)
(1), (2), and (3) of the Act because at the time there was pending a question of
representation which the Machinists had raised. Midwest Piping cC Supply Co.,
Inc., 63 NLRB 1060. The Respondent and the Steelworkers, on the other hand,
contend that the doctrine of the last cited case was never intended to apply to the
21 Vu-, tool-crib attendant and machinist welders
zz I e , all toolmakers in departments 6 and 20
z3In view of the holding in the Spiewak and Indianapolis Newspapers decisions on this
point , it is apparent that the Joy Sslk Mills decision ( 85 NLRB 1263 , enfd. 185 F 2d
732 (C A , D C ), cert denied 341 U S 914), and related cases cited by the General
Counsel have no application here.
WILLIAM D. GIBSON CO. 677
instant situation, citing, inter alga, William Penn Broadcasting Company, 93 NLRB
1104, and that to hold otherwise would be inconsistent with the basic purposes of
the Act. Thus, the Respondent asserts that in the absence of an affirmative show-
ing that the unit claimed by the Machinists was appropriate, the Respondent was
free to recognize and bargain with the Steelworkers, and that, as an incident to such
recognition and bargaining, enter into a contract with that union and adhere to
such an agreement.
In the representation proceeding the Board held that the contract did not con-
stitute a bar to the holding of an election since it was executed within 10 days after
the Machinists filed a petition. At the hearing, and in his brief, the General
Counsel has argued that this finding foreclosed consideration in any subsequent
complaint proceeding as to the facts surrounding the execution of the contract.
This argument, however, is untenable, for the Board's administrative determina-
tion in the representation case that the contract was not a bar to an election is of
no relevance with respect to the question of whether the execution of such an
agreement constituted an unfair labor practice Whereas a contract may not bar
an election if signed after a representation petition is filed (Crossett Paper Mills,
98 NLRB 542, 544), it would seem elementary that before an employer could be
held to have committed an unfair labor practice under the Midwest Piping doctrine
it would be necessary to prove at the outset that he knew a representation petition
had been filed prior to the moment he signed the contract in question. As appears
above, it was not until July 29, that the Respondent was formally served with a
copy of the Machinists' petition. Although the Respondent received a letter from
that union on July 25, requesting recognition and an opportunity to bargain, that
correspondence made no reference to a Board-conducted election. Moreover, there
is nothing in the record to indicate that the Respondent was fairly apprised of the
Machinists having resorted to the Board's election processes until it was served
with a copy of the petition on the morning after it signed the contract with the
Steelworkers. The Midwest Piping doctrine stemmed from a construction of the
Act designed to protect the integrity of the election processes once a question of
representation was referred to the Board for resolution. Since the Respondent here
did not receive notice of the Board's involvement in the matter until after it had
executed the contract in question, the General Counsel must urge that the request
from the Machinists, received on July 25, must, in and of itself, have been enough
to raise the representation question which would compel the Respondent to delay
the execution of any contract or go forward at its peril. Surely, the mere request,
however baseless, of a rival union made at the last minute before an employer and
an incumbent union are to sign an agreement can not be enough to invoke the
Midwest Piping theory as of that instant 24 so that the execution of any contract then
and regardless of when, if ever, a representation petition is filed, would be a violation
of the Act. It would appear that until an employer is fairly on notice that the
Board's representation processes have been put in motion he should be free to
proceed with negotiations and conclude a binding agreement. Especially should
that be the rule in a case such as the instant one where the employer and an in-
cumbent union had practically concluded their negotiations, weeks, if not months,
before the rival appeared on the scene. For this reason, it is my conclusion that
here the Respondent did not have such notice as would place it in jeopardy of violat-
ing the Act at the time it executed the contract with the Steelworkers.
Apart from the issue of whether the Respondent was sufficiently apprised of the
representation case at the time in question, there is a further reason for my con-
clusion that this is not a situation where the principle of the Midwest Piping case
is applicable. Several years ago, the Board made clear that the rule of that case
was to be "strictly construed and sparingly applied" (Ensher, Alexander & Barsoom,
Inc., 74 NLRB 1443, 1445). In a more recent decision, William Penn Broadcast-
ing Company, 93 NLRB 1104, the Board held that an employer had committed
no unfair labor practice by entering into an exclusive bargaining agreement with
an incumbent union, although a rival had filed a petition for representation of some
,of the employees covered by the agreement, where the employer claimed that the
unit sought by the petitioning union was inappropriate. There the Board said