Belleville News Democrat, Inc.

National Labor Relations Board - Board Decisions

Feb 16, 1972

195 N.L.R.B. 431 (N.L.R.B. 1972)

BELLEVILLE NEWS DEMOCRAT, INC 431
Belleville News Democrat , Inc. and International
Printing Pressmen and Assistant 's Union of North
America, St. Louis Web Printing Pressmen and Fly-
men's Local No. 38, AFL-CIO and International
Printing Pressmen and Assistant 's Union of North
America , Belleville Printing Pressmen 's Union No.
113, AFL-CIO, Party to the Contract. Case 14-
CA-5665
February 16, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
that Respondent violated Section 8(a)(2) and ( 1) of the
Act.3
THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The acts of Respondent set forth above, occurring in
connection with its operations, as described in the Trial
Examiner's Decision, have a close, intimate, and sub-
stantial relationship to trade, traffic, and commerce
among the several States, and lead to labor disputes
burdening and obstructing commerce and the free flow
of commerce.
THE REMEDY
On September 22, 1971, Trial Examiner Herbert Sil-
berman issued the attached Decision in this proceed-
ing. Thereafter, the General Counsel and the Charging
Party filed exceptions and supporting briefs. Respond-
ent filed cross-exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and except as noted below, has decided to affirm
the Trial Examiner's rulings, findings, and conclusions.
Contrary to the Trial Examiner we find that Re-
spondent violated Section 8(a)(2) and (1) of the Act by
imposing upon its pressroom employees the terms of an
agreement with Local 113, previously negotiated by a
multiemployer association acting on behalf of its em-
ployer members. We reach this result because Re-
spondent took the action at a time when there was
pending before the Board a petition filed by Local 38
which raised a question concerning representation in
an appropriate unit.' We note, in addition, that Re-
spondent was aware at all times here material that
Local 38's claim of representation for that unit of em-
ployees was asserted with the approval of Local 113
and that Local 113 had disclaimed any interest in con-
testing Local 38's claim.
We conclude that by imposing the terms of the mul-
tiemployer agreement on its employees, Respondent
usurped the Board's function of resolving the represen-
tation question and erroneously resolved the question.
Therefore, based on the well-established principle
enunciated in Midwest Piping & Supply Co., Z we find
We found, in Belleville News Democrat, Inc, 185 NLRB No 140, that
Respondent had been unequivocally withdrawn from the multiemployer
unit, and that the petition filed by Local 38 for a unit confined to the
pressroom employees of Respondent described an appropriate unit and
raised a genuine question concerning representation.
' 63 NLRB 1060
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the meaning
of Section 8(a)(2) and (1) of the Act, we shall order that
it cease and desist from such practices and take such
affirmative action as will effectuate the policies of the
Act.
Inasmuch as Respondent improperly resolved the
question concerning the representation of its pressmen
employees by according Local 113 recognition as their
collective-bargaining representative at a time when a
petition filed by Local 38 which raised a question con-
cerning representation was pending before the Board,
we shall order Respondent withdraw and withhold
such recognition unless and until Local 113 has demon-
strated exclusive majority representative status in the
appropriate unit pursuant to a Board-conducted elec-
tion.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. International Printing Pressmen and Assistant's
Union of North America, St. Louis Web Printing
Pressmen and Flymen's Local No. 38, AFL-CIO, and
International Printing Pressmen and Assistant's Union
of North America, Belleville Printing Pressmen's Un-
ion No. 113, AFL-CIO, are labor organizations within
the meaning of Section 2(5) of the Act.
' We agree with the Trial Examiner that Respondent did not violate
Section 8(a)(3) and (1) by refusing to reinstate strikers who had been perma-
nently replaced In International Printing Pressmen and Assistants Union
of North America, Local 38 (Belleville News Democrat), 187 NLRB No 57,
we found that the strike of May 1970 had no recognitional purpose but was
directed, rather, to Respondent's alleged misconduct in connection with the
demotion of Supervisor Gruenewald This conduct was not alleged to be an
unfair labor practice Nothing in this record persuades us that our previous
finding as to the strike's objective was erroneous Accordingly, and as the
strike must therefore be deemed to be economic in character, Respondent
was not obligated to discharge the striker-replacements
We also agree with the Trial Examiner's conclusion that, in the circum-
stances of this case, General Counsel has not proved a violation of Section
8(a)(5) of the Act or otherwise established a basis for the issuance of a
bargaining order
195 NLRB No. 86
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. All pressmen employees, including apprentices, of
the Employer employed in its Belleville, Illinois, plant,
excluding all other employees, clericals, guards, watch-
men, professional, managerial, and supervisory person-
nel constitute a unit appropriate for the purpose of
collective bargaining within the meaning of Section
9(b) of the Act.
4. By recognizing International Printing Pressmen
and Assistant's Union of North America, Belleville
Printing Pressmen's Union No. 113, AFL-CIO, as the
exclusive representative of the employees comprising
the appropriate unit at a time when there was pending
before the Board a petition which was filed by Interna-
tional Printing Pressmen and Assistant's Union of
North America, St. Louis Web Printing Pressmen and
Flymen's Local No. 38, AFL-CIO, and which raised
a genuine question concerning the representation of
such employees, Respondent violated Section 8(a)(2)
and (1) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that Respondent, Belleville News
Democrat, Inc., Belleville, Illinois, its officers, agents,
successors, and assigns , shall:
1. Cease and desist from:
(a) Imposing on its pressmen employees any mul-
tiemployer contract negotiated between Belleville Em-
ploying Printers Association and International printing
Pressmen and Assistant's Union of North Printing
Pressmen's Union No. 113, AFL-CIO, since on or
after February 18, 1970, or otherwise recognizing or
entering into any other contract with said labor organi-
zation as the collective -bargaining representative of any
of its pressmen employees at the Belleville , Illinois,
plant, unless and until the National Labor Relations
Board certifies that said labor organization is the exclu-
sive representative of a unit composed of Respondent's
pressmen employees. However, it is expressly provided
that nothing herein shall be construed as requiring Re-
spondent to withdraw, change, or abandon any of the
benefits, terms, and conditions of employment cur-
rently enjoyed by such pressmen employees.
(b) In any like or related manner interfering with or
coercing its employees in the exercise of the rights guar-
anteed to them by Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Withdraw and withhold all recognition from In-
ternational Printing Pressmen and Assistant's Union of
North America, Belleville Printing Pressmen's Union
No. 113, AFL-CIO, as the collective-bargaining repre-
sentative of its pressmen employees, unless and until
the National Labor Relations Board certifies that said
labor organization is the exclusive representative of a
unit composed of Respondent's pressmen employees.
(b) Post at its Belleville, Illinois, plant copies of the
attached notice marked "Appendix."" Copies of said
notice, on forms provided by the Regional Director for
Region 14, after being duly signed by Respondent's
representative, shall be posted by Respondent immedi-
ately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "POSTED BY ORDER
OF THE NATIONAL LABOR RELATIONS BOARD " shall be changed
to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED
STATES COURT OF APPEALS ENFORCING AN ORDER OF THE
NATIONAL LABOR RELATIONS BOARD "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate the
policies of the National Labor Relations Act, as
amended, we hereby notify you that:
WE WILL withdraw and withhold all recogni-
tion from International Printing Pressmen and
Assistant's Union of North America, Belleville
Printing Pressmen's Union No. 113, AFL-CIO, as
the collective-bargaining representative of any of
our pressmen employees, and will not recognize
said labor organization unless and until the Na-
tional Labor Relations Board certifies that said
labor organization is the exclusive representative
of our pressmen employees.
WE WILL NOT impose on our pressmen em-
ployees any multiemployer contract negotiated be-
tween Belleville Employing Printers Association
and International Printing Pressmen and Assis-
tant's Union of North America, Belleville Printing
Pressmen's Union No. 113, AFL-CIO, since on or
after February 18, 1970, or otherwise recognize or
enter into any other contract with said labor or-
ganization as the collective-bargaining representa-
tive of any of our pressmen employees at the Belle-
ville, Illinois, plant, unless and until the National
Labor Relations Board certifies that said labor or-
BELLEVILLE NEWS DEMOCRAT, INC. 433
ganization is the exclusive representative of a unit
composed of our pressmen employees.
WE UNDERSTAND that nothing in the Board's
Order requires us to withdraw, change, or aban-
don any term or condition of employment cur-
rently enjoyed by our pressmen employees.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of any right guaranteed to them by
Section 7 of the National Labor Relations Act.
BELLEVILLE NEWS
DEMOCRAT, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, 210 North 12th Boulevard, Room 448, St.
Louis, Missouri 63101, Telephone 314-622-4142.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HERBERT SILBERMAN, Trial Examiner: Upon a charge and
an amended charge respectively filed on June 22 and October
21, 1970, by International Printing Pressmen and Assistants
Union of North America, St. Louis Web Printing Pressmen
and Flymen's Local No. 38, AFL-CIO (herein called Local
38) a complaint, dated February 10, 1971, was issued alleging
that the Respondent, Belleville News Democrat, Inc., herein
called the Company , has engaged and is engaging in unfair
labor practices within the meaning of Section 8(a)(1), (2), (3),
and (5) of the National Labor Relations Act, as amended.
Respondent filed an answer generally denying that it has
engaged in the alleged unfair labor practices. A hearing in this
proceeding was held in St. Louis, Missouri, on April 13 and
June 17, 1971. General Counsel and Respondent filed briefs
which have been carefully considered.
Upon the entire record in this case,' I make the following:
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
Belleville News Democrat, Inc., an Illinois corporation, is
engaged in the publication of a daily newspaper which is
distributed in the Belleville, Illinois, area. Respondent derives
gross revenue in excess of $200,000 annually from its business
operations. In the conduct thereof Respondent subscribes to
interstate news services, publishes nationally syndicated fea-
tures, and advertises nationally sold products. Respondent
admits, and I find, that it is an employer engaged in com-
I Absent opposition, Respondent's motion, dated August 18, 1971, to
correct the transcript of record is granted
merce within the meaning of Section 2(6) and (7) of the Act.
II THE LABOR ORGANIZATIONS INVOLVED
Local 38, and International Printing Pressmen and Assist-
ants Union of North America, Belleville Printing Pressmen's
Union No. 113, AFL-CIO (herein called Local 113), are
labor organizations within the meaning of the Act.
III THE PLEADINGS
For a period of about 30 years the Company was a member
of Belleville Employing Printers (herein called the Associa-
tion), an association of employers which exists for the pur-
pose of conducting collective -bargaining negotiations on be-
half of its members with Local 113 and with another labor
organization (International Typographical Union, Local 74,
AFL-CIO). On January 21, 1959, a Certification of Repre-
sentatives was issued in Case 14-RC-3424 certifying Local
113 as the bargaining representative of "all letterpress, gra-
vure, and newspaper pressmen, and apprentices and helpers"
employed by the employer members of the Association.
In February 1970, despite a subsisting contract between the
Company and Local 113 concerning the terms and conditions
of their employment, the pressmen working for Respondent
designated Local 38 as their representative and that organiza-
tion made demand upon the Company for recognition. Re-
spondent refused to recognize Local 39 on the ground that
the Company was party to a collective-bargaining agreement
with Local 113. On February 18, 1970, Local 38 filed a peti-
tion for Certification of Representative with respect to Re-
spondent's pressroom employees. On April 30, 1970, while
the representation proceeding initiated by said petition was
pending, the collective-bargaining agreement between the
members of the Association and Local 113 expired. The As-
sociation contract was renewed as of May 1 pursuant to
negotiations conducted on a multiemployer basis. Despite the
pendency of the representation proceeding, Respondent took
the position that its employees were part of the multiem-
ployer bargaining unit and on May 1 announced to its em-
ployees that it was placing into effect the terms of the renewal
agreement between the Association and Local 113. On May
6, 1970, the Regional Director dismissed the representation
petition filed by Local 38 on the ground that "the multiem-
ployer bargaining unit is appropriate and precludes the estab-
lishment of a separate unit of the pressmen of Employer."
Local 38 sought review of the decision of the Regional Direc-
tor. The request for review was granted on June 24, 1970.
Thereafter, on October 13, 1970, the Board issued its Deci-
sion on Review in which it reversed the Regional Director's
Decision, found that a question exists concerning the repre-
sentation of employees of the Company, and directed an elec-
tion among the employees in the following unit:
All pressmen employees, including apprentices, of the
Employer employed in its Belleville, Illinois, plant ex-
cluding all other employees, clericals, guards, watch-
men, professional , managerial and supervisory person-
nel.
By reason of the foregoing the complaint alleges that:
(1) Respondent has violated Section 8(a)(2) in that since
April 22, 1970 (there is no adequate explanation as to why
this unfair labor practice is alleged to have begun on April
22), it has engaged in negotiations with Local 113 concerning
its pressmen, and since May 1, 1970, it has entered into,
maintained in force, and implemented a collective bargaining
with Local 113;
(2) Commencing on or about October 16, 1970, Respond-
ent has violated Section 8(a)(5) of the Act by refusing to
bargain collectively with Local 38 as the exclusive representa-
tive of its pressmen;
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(3) A strike by Respondent's pressmen which began about
May 15, 1970, was an unfair labor practice strike and since
June 15, 1970, Respondent has violated Section 8(a)(3) by
refusing to reinstate the strikers upon their application for
employment on the ground that they had been permanently
replaced; and
(4) The foregoing also constitute violations of Section
8(a)(1).
IV. THE ALLEGED UNFAIR LABOR PRACTICES
Related to this case and for the reasons which will be
discussed below are the decisions of the Board in two cases
decided in 1970 involving both the Respondent and the
Charging Party herein. The first is the representation pro-
ceeding initiated by Local 38 in Case 14-RC-6376. The
Board's Decision on Review is reported at 185 NLRB No.
140. The second is a proceeding alleging violations of Section
8(b)(4)(C) of the Act in which Local 38 is the named Re-
spondent and the Company is the Charging Party. The case
number is 14-CC-593 and is reported at 187 NLRB No. 57.
Respondent as a member of the Belleville Employing Print-
ers has been a party to successive collective -bargaining agree-
ments with Local 113 (and also with International Typo-
graphical Union, Local 74, AFL-CIO). Furthermore,
following a Board-conducted election, Local 113 was certified
on January 21, 1959, as the collective-bargaining representa-
tive of the employees in an appropriate unit described as
follows:
All letterpress, gravure, and newspaper pressmen, and
apprentices and helpers, at the Employers' Belleville,
Illinois, plants, excluding all other employees, clerical
employees, professional employees, guards and watch-
men, and supervisors as defined in the Act.2
In May 1969 the Company's six pressmen, including Fore-
man Robert J. Gruenewald, joined Local 38. Subsequently,
on February 12 and 13, 1970, the six employees signed an
instrument purporting to designate Local 38 as their "sole
and exclusive representative for the purposes of collective
bargaining with our employer on all matters relating to the
terms and conditions of our employment." On February 18,
1970, a letter was written to the Company advising that Local
38 had been designated by a majority of its pressmen as their
representative and that the pressroom employees constitute
an appropriate bargaining unit. The letter also demanded
recognition on behalf of Local 38 and requested the Company
to designate a time and place for a negotiating session. Re-
spondent did not answer the letter.' On the same day Local
38 filed the representation petition in Case 14-RC-6376. On
May 6, 1970, the Regional Director for Region 14 issued a
Decision and Order dismissing the petition of Local 38 on the
ground that the unit sought by the petitioner, limited to
Respondent's pressroom employees, was inappropriate. The
Decision specifically found that "the multiemployer bargain-
ing unit is appropriate and precludes the establishment of a
separate unit of the pressmen of Employer."
While the representation proceeding was pending the As-
sociation was engaged in collective-bargaining negotiations
with Local 113. Prior to May 1, 1970, the Association and
Local 113 reached agreement on all revisions to their subsist-
ing contract which was due to expire on April 30, with the
exception of the pension program. With respect to the pen-
sion program the amount of employer contribution had been
agreed upon but the specific method of effectuating the plan
had to await certain formal action on the part of the Union.
Sometime after May 1, 1970, Local 113 and the Association
reached agreement on the pension provisions and reconciled
some differences over contract language.
About May 1, 1970, Raymond Erwin, who was the spokes-
man for the Association in the negotiations with Local 113
(as well as with Local 74), informed Fred Kern, general
manager of Respondent, that the revisions to the contract
which expired on April 30 were going to be put into effect as
of May 1. On that day Fred Kern assembled the Company's
pressmen and informed them of the improved wages and
other benefits which were being put into effect as the result
of the negotiations with Local 113.' After the pressmen dis-
cussed the matter among themselves they requested their
foreman, Robert Gruenewald, to ask Kern to return. When
Kern came back to the pressroom, according to pressman
Charles Edwin Yocks, "I told him we couldn't accept this, we
didn't belong to 113 we belonged to 38." Kern insisted that
he was going to place into effect the terms reached as a result
of the negotiations between the Association and Local 113.
Later the same day , Gruenewald was called to a meeting
with Fred Kern and the latter's father, Robert Kern, editor
and publisher of the newspaper. Gruenewald was castigated
for having led the pressmen into changing their affiliation
from Local 113 to Local 38. He was told that management
no longer could trust him with the responsibility of being
foreman and that he was being demoted from his position as
foreman to a journeyman pressman. Gruenewald responded
that in these circumstances he would not continue working
for the Corypany and quit his job.'
On May 6, 1970, the Regional Director issued his Decision
and Order dismissing Local 38's petition in the representation
proceeding. The next day, May 7, the executive board of
Local 38 voted to strike the Company and this recommenda-
tion was approved by the membership of Local 38 at a regular
meeting held on May 12.
On the morning of May 15 Respondent's pressmen went on
strike and Local 38 commenced picketing the Company's
plant with signs bearing the legend:
NOTICE TO THE PUBLIC Belleville News Democrat has
coerced and discriminated against its employees because
of their membership in and activities on behalf of St.
Louis Web Printing Pressmen and Flymen's Union No.
38.
On the day that the picketing began the Company filed
unfair labor practice charges with the Board in Case 14-CC-
593 alleging violations of Section 8(b)(4)(C) of the Act. A
complaint thereon was issued on June 2. Pursuant to Section
10(1) of the Act a temporary injunction order was entered on
June 12, 1970, in the United States District Court for the
' See Belleville Employing Printers. 122 NLRB 350 Although in its
decision the Board adverted to the fact that "[t]here is no formal organiza-
tion known as Belleville Employing Printers ," it found that there had been
"an effective history of multiemployer bargaining" and that the Association,
which then was composed of two newspaper publishing companies and four
commercial punting concerns , constituted an appropriate multiemployer
unit As of 1970 Respondent was the only newspaper publisher still party
to the multiemployer bargaining agreement
' I take official notice of the Board 's decisions in Cases 185 NLRB No.
140 and 187 NLRB No 57 These decisions contain more detailed recitals
of certain of the matter adverted to herein
' Charles Edwin Yocks, one of Respondent's pressmen , testified that
Kern informed the employees that "we lust signed a nice contract ... " Kern
denied that he told the employees when he met with them on May 1 that
the Company had actually signed an agreement . In its Decision in the
boycott case the Board found that Kern "announced that a new contract had
been reached with Local 113 "
' Among the reasons, if not the principal reason, for the Company's
opposition to the change in affiliation of its pressmen from Local 113 to
Local 38 was that the wage structure of Local 38 was higher than that of
Local 113
BELLEVILLE NEWS DEMOCRAT, INC. 435
Eastern District of Illinois prohibiting Local 38 from engag-
ing in the strike against the Company and from picketing the
premises of the Company.
Following entry of the injunction order, the Company's
five striking pressmen, on June 15, offered to return to work.
However, the Company refused to reinstate them on the
ground that their jobs had been filled by permanent replace-
ments.'
A hearing in the boycott case was held before a Trial
Examiner of the Board on June 29, 1970. On August 11 he
issued his Decision finding that Local 38 had not engaged in
the alleged unfair labor practices and recommended dismissal
of the complaint. This Decision was affirmed by the Board on
December 17, 1970. Between the date of the Trial Examiner's
Decision and the Board's affirmance, the Board on October
13, 1970, issued its Decision on Review in the representation
case reversing the Regional Director's dismissal of the peti-
tion filed by Local 38 and directing an election.' More specifi-
cally, the Board found in its Decision in the boycott case that
the strike was not unlawfully motivated "with an object of
compelling recognition and bargaining" with Local 38 but
"was called to protest the Belleville News' purported miscon-
duct" in relation to Robert Gruenewald.e Picketing was
resumed by Local 38 on March 15, 1971, after the temporary
injunction was vacated.
The Board's Decision in the boycott case is important to
this proceeding to the extent that the findings therein deter-
mine whether the strike, which began on May 15, was an
unfair labor practice strike. The alleged violation of Section
8(a)(3) here depends upon a preliminary finding that the May
15 strike was caused or was prolonged by Respondent's un-
fair labor practices. If the only reason for the strike was the
termination of Gruenewald then the strike cannot be deemed
to have been an unfair labor practice strike because there is
no basis for finding that Gruenewald's termination was un-
lawful. The Union' s original charge herein alleged that such
termination was an unfair labor practice but the charge in this
respect was dismissed by the Regional Director and the dis-
missal was affirmed by the General Counsel.' Respondent
argues, in effect, that the object of the May 15 strike was the
6 One of the striking pressmen, Alvoyed J Huber, was reemployed by the
Company on November 16, 1970
7 On October 26, 1970, the General Counsel filed a motion with the
Board to withdraw his exception to the Trial Examiner's Decision in Case
14-CC-593 and to dismiss the complaint This action was prompted by the
Board's Decision on Review in the representation proceeding
I read the term "purported misconduct" as used by the Board in its
Decision to refer to the termination of Robert Gruenewald Thus, in its
Decision, the Board states "The Belleville News Pressmen attended (the
Executive Board meeting held on May 7, 1970), described what had hap-
pened, and 'stated their position that they wanted to take a strike vote
because they felt they did not want the same thing to happen to them that
happened to Brother Gruenewald ' I therefore find that the unanimous strike
vote, taken at that special meeting, was provoked by the Belleville's asserted
misconduct, not by the dismissal of the petition (by the Regional Director
in Case 14-RC-6376) " No other alleged "misconduct" which lawfully
might have been an object of the strike is discussed in the Board's Decision
Nowhere in its Decision does the Board find that the facts alleged in para-
graph numbered 5 of the complaint in the instant case were causes for the
strike or for prolonging the strike
' The General Counsel's decision on appeal, dated April 1, 1971, is as
follows "The appeal is denied For substantially the reasons set forth in the
Regional Director's dismissal letter dated February 3, 1971, insufficient
basis existed for a finding that the Company's conduct toward Gruenewald
was unlawful Even assuming that the events of May 1 provided a basis for
finding Gruenewald's quit to be a constructive discharge (compare Walker
Electric Company, 142 NLRB 1214, 1215), in view of his supervisory status,
at the time of the union activities in question, it could not be held that his
discharge violated the Act Gibbs Automatic Division , Pierce Industries,
Inc., 129 NLRB 196, 198 "
principal issue in the boycott case, the Board found that the
strike was caused only by Gruenewald' s termination , and this
finding, therefore, determines the Section 8(a)(3) question in
the instant case. The complaint, however, alleges not that the
strike was caused by Gruenewald's termination but that the
strike was caused by the Company's negotiations with Local
113 and by the fact that the Company placed into effect the
terms of the purported collective-bargaining agreement with
Local 113 on May 1, 1970. The theory of the complaint is that
such conduct constitutes a violation of the Act under the
Midwest Piping doctrine" because of the pendency of the
representation proceeding in Case 14-RC-6376."
THE ISSUES
This case poses several novel questions. First, what effect
should be attributed to the Regional Director's decision dur-
ing the period between May 6 when it was issued , and Octo-
ber 13 when it was reversed by the Board in its Decision on
Review." If the Board had affirmed the Regional Director,
instead of having reversed him, the complaint herein would
completely fail. There then would not have been the alleged
unlawful assistance to Local 113. Under the Regional Direc-
tor's decision the Company was obliged to deal with Local
113 as the certified representative of its pressmen. In conse-
quence, the strike could not have assumed the character of an
unfair labor practice strike because between the period of
May 15 and June 15 there would have been no unfair labor
practices attributable to the company. Also, there could not
have been any violation of Section 8(a)(5) of the Act based
upon Respondent's refusal to recognize Local 38 because the
Regional Director found that Local 113 continued as the
representative of the Company's pressmen.
The gravamen of the complaint is that the Board's Deci-
sion on Review has some, but not complete, retroactive ap-
plication. Thus, the complaint alleges that the unlawful as-
sistance rendered Local 113 by the Company continued
during the period that the Regional Director's decision of
May 6 was extant as well as after October 13, 1970, when it
was reversed by the Board. Similarly, the complaint alleges
that the strike, which began on May 15, was caused and was
prolonged by such unlawful assistance and therefore Re-
spondent's refusal to reinstate the pressmen who are alleged
to be unfair labor practice strikers is a violation of Section
8(a)(3). However, as to the alleged 8(a)(5) violation arising
out of the Company's refusal to recognize Local 38, the com-
plaint avers that this unfair labor practice did not commence
until after the issuance of the Board's Decision on Review in
the representation proceeding on October 13. Thus, with re-
spect to the alleged 8(a)(5) violation the Decision on Review
is not given retroactive application and the General Counsel
asserts that no violation of Section 8(a)(5) is deemed to have
taken place prior to the date on which it was issued. Thus,
a second question is whether, the complaint pleads a valid
violation of Section 8(a)(5). The issue arises from the fact that
all the elements necessary to constitute a prima facie violation
of Section 8(a)(5) took place well before October 1970. The
significance of the October 16 date pleaded in the complaint
is that it follows the issuance by the Board of its Decision on
Review in the representation proceeding. Is that factor alone
10 Midwest Piping & Supply Co, 63 NLRB 1060
11 The alleged violation was established nunc pro tunc after the Board's
Decision on Review was issued on October 13, 1970
13 In his brief General Counsel states that "The Regional Director's Deci-
sion and Order of May 6 was an interim finding, clearly not a final determin-
ation." This assertion completely ignores Section 102 67(b) of the Rules and
Regulations and Section 3(b) of the Act as they relate to the delegation of
authority to Regional Directors.
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sufficient to affect the date on which the alleged violation of
Section 8(a)(5) began? 13
A third issue is whether there is an estoppel which bars a
finding by the Board in this case that the strike which began
on May 15, 1970, was an unfair labor practice strike. In the
boycott case the Board found that the strike was not for "an
object of compelling recognition and bargaining" by the
Company with Local 38." Two questions arise: (1) whether
by virtue of the doctrine of collateral estoppel the finding by
the Board in the boycott case relative to the cause of the May
15 strike should be adopted in this case, regardless of whether
evidence offered in the instant case might lead to a different
conclusion; and (2) under the doctrine of judicial estoppel
whether the position taken by Local 38 in the boycott case as
to the reasons for the May 15 strike and the testimony given
in said case on behalf of Local 38 estops the Board from
accepting testimony offered in the instant case by witnesses
who also testified on behalf of Local 38 in the boycott case
to the extent that such testimony enlarges upon or conflicts
with their prior testimony.
Respondent in its brief poses the following additional is-
sues:
(a) General Counsel has failed to prove a prima facie viola-
tion of Section 8(a)(5) of the Act because he has offered no
evidence to establish that the collective-bargaining unit de-
scribed in the complaint is an appropriate unit. Respondent
argues that General Counsel cannot rely upon the Board's
decision in Case l4-RC-6376 because no certification of rep-
resentative has been issued therein;
(b) The alleged majority of Local 38 is tainted because of
the activity of a supervisory employee, Robert Gruenewald,
and certain described conduct by Local 38;
(c) The alleged unfair labor strikers have obtained other
regular and substantially equivalent employment and, there-
fore, pursuant to Section 2(3) of the Act, have lost their status
as employees of the Company; and
(d) The Company did not engage in negotiations with Lo-
cal 113 prior to May 1, 1970, and did not enter into any
agreement with Local 113 on May 1, 1970.
" In light of the limitations provision of Section 10(b) of the Act this is
not an academic question
" General Counsel and Charging Party, in effect, argue that the objects
of the strike were twofold- One, to protest the termination of Robert
Gruenewald and, two, to protest the Company's continued recognition of
and dealing with Local 113 while the representation proceeding filed by
Local 38 was pending. To the extent that the latter object motivated the
strike, the strike is alleged to be an unfair labor practice strike They main-
tain further that neither the striking employees nor Local 38 had as an object
of the strike an effort to compel Respondent to recognize Local 38 as the
representative of its pressmen In the circumstances present here such con-
tention is difficult to accept. This case arises from the effort on the part of
Respondent's pressmen to transfer their affiliation from one local to another
local of the same International union Thus, on May 1, Charles Edwin
Yocks, who is chapel chairman and a member of the executive board of
Local 38 told Fred Kern that "we couldn't accept this [the terms negotiated
with Local 113], we didn't belong to 113 we belonged to 38 " Faced with
Respondent's immovableness, Yocks consulted Local 38's attorney who
"told me we could go ahead and accept " It would be unrealistic to
infer that Respondent's pressmen wanted no union representation in prefer-
ence to representation by Local 113 A more realistic inference to be drawn
from the America, Belleville circumstances is that if the pressmen struck to
protest the Company's continued dealing with Local 113, they, at the same
time, were seeking to compel the Company to recognize Local 38 as their
representative Accordingly, the contention that the strike was caused by
the Company's continued recognition of and dealing with Local 113 should
carry with it as a corollary that the strike also was for the purpose of
compelling the Company to recognize Local 38
Conclusions
The Midwest Piping doctrine is intended to implement the
Act's objective of assuring employees the right to select "rep-
resentatives of their own choosing." It prohibits an employer
faced with conflicting claims from according such treatment
to one of the rivals as will give it an improper advantage or
disadvantage in its contest for the employees' favor. In es-
sence, the doctrine is that once the contest between rival labor
organizations has begun and the Board's processes have been
invoked by the filing of a representation petition, the em-
ployer is deemed to have interfered with his employees' statu-
tory rights if he undertakes to resolve the question concerning
representation by voluntarily extending recognition to and
bargaining with one of the competing unions. As stated in
Retail Clerks Union, Local 770 v. N.L.R.B., 370 F.2d 205,
207 (C.A. 9):
... an employer faced with conflicting claims of two or
more rival unions which give rise to a real question
concerning representation may not recognize or enter
into a contract with one of these unions until its right to
be recognized has finally been determined under the spe-
cial procedures provided in the Act.
However, as in other situations arising under the Act, the
application of this principle conflicts with another and
equally important statutory objective, namely, that of en-
couraging stable and uninterrupted collective-bargaining re-
lationships. Thus, early after the issuance of its Midwest Pip-
ing decision the Board stated with respect to the principle
enunciated therein that the doctrine, "necessary though it is
to protect freedom of choice in certain situations, can easily
operate in derogation of the practice of continuous collective
bargaining, and should, therefore, be strictly construed and
sparingly applied."" The tension that develops when a labor
organization seeks to displace an incumbent union which
enjoys a contractual relationship with the employer has been
the source of recurring problems to the Board and to the
courts.16 The rule which the Board currently applies in such
cases was iterated in Shea Chemical Corporation, 121 NLRB
1027, 1029, as follows:
We now hold that upon presentation of a rival or con-
flicting claim which raises a real question concerning
representation, an employer may not go so far as to
bargain collectively with the incumbent (or any other)
union unless and until the question concerning represen-
tation has been settled by the Board. This is not to say
that the employer must give an undue advantage to the
rival union by refusing to permit the incumbent union to
continue administering its contract or processing griev-
ances through its stewards .... However, we wish to
make it clear that the Midwest Piping doctrine does not
apply in situations where, because of contract bar or
certification year or inappropriate unit or any other es-
tablished reason, the rival claim and petition does not
raise a real representation question.
The instant case presents two factual variations which
previously have not been before the Board in connection with
the application of the Midwest Piping doctrine. First, the
Respondent did not itself engage in collective-bargaining
negotiations with Local 113 after Local 38 had filed its repre-
sentation petition. The Association, as perforce it was re-
quired to do under the Act, bargained with Local 113 on
behalf of its membership and arrived at an understanding
which its members put into effect on May 1. Thus, if the
Company continued as a member of the Association its fail-
" Ensher, Alexander & Barsoom, Inc, 74 NLRB 1443, 1445
' See Peter Paul, Inc, 185 NLRB No 64, and the cases there cited
BELLEVILLE NEWS DEMOCRAT, INC
ure to observe the terms of the renewal agreement would have
been a violation not only of its obligations under the contract
but also under the provisions of the Act. There was no practi-
cal action which the Company might have taken to suspend
the negotiations between the Association and Local 113
pending resolution by the Board of the representation ques-
tion sought to be raised by Local 38's petition. The Company
could not sensibly maintain its legal position that the unit
requested by Local 38 in its petition was inappropriate and
simultaneously refuse to recognize its continuing obligations
as a member of the multiemployer unit which the Company
contended was the only appropriate unit." Second, initially
the Regional Director sustained the Company's decision re-
garding the appropriate unit and dismissed the petition which
Local 38 had filed. The argument, nevertheless, is made by
General Counsel that the Company acted at its peril by con-
tinuing to deal with Local 113 not only on May 1, when it
put into effect the economic provisions of the renewal agree-
ment with Local 113, but also while the appeal from the
Regional Director's decision was pending. General Counsel's
position is that during the entire period from April 30, when
its contract with Local 113 expired, until at least October 13,
when the Board issued its Decision on Review reversing the
Regional Director, the Company was in the unenviable posi-
tion of having correctly to determine for itself the appropriate
unit issue pending before the Board in the representation
proceeding. This placed the Company in a "damned if you
do, damned if you don't" position." If the unit requested in
the petition filed by Local 38 ultimately were held to be
inappropriate the Company might be accused of breach of
contract and of unfair labor practices for having refused to
observe the terms of the agreement with Local 113 which
became effective on May 1. On the other hand, if the Com-
pany, as it did, placed into effect the economic provisions of
the renewal agreement between the Association and Local
" General Counsel seeks to equate the facts herein with those in cases
such as Shea Chemical Corporation, supra, and Allied Food Distributors,
Inc., 169 NLRB 793 In addition to the fact that analogies tend to be
misleading , in my opinion, the equation suggested by General Counsel is
inapposite. Perhaps a better comparison would be the following
An employer and a union are parties to a five-year agreement which
provides for annual wage increases At an appropriate time towards the
end of the third year of the contract a rival labor organization files a
representation petition While the proceeding initiated thereby is pend-
ing, a wage increase becomes due under the terms of the subsisting
contract which the employer gives to the employees In these circum-
stances would the employer's conduct violate the Midwest Piping doc-
trine9 In my opinion the hypothetical case is closer to the instant
proceeding than the facts in the Shea Chemical Corporation or the
Allied Food Distributors, Inc, case adverted to by General Counsel
J J Newberry Co., Inc v NL.R B, 442 F 2d 897 (C A 2)
437
113, and the unit requested by Local 38 in the representation
petition ultimately was found by the Board to be appropriate,
as was the case, then, as did happen, the Company was in
jeopardy of being charged with unfair labor practices. The
theory of the General Counsel is that the Company had to
guess correctly not only what the Regional Director's initial
ruling would be but also whether it would be sustained or
reversed by the Board upon appeal. A question of policy
arises as to whether it would effectuate the objectives of the
Act to penalize Respondent in an unfair labor practice pro-
ceeding for having failed correctly to anticipate the Board's
ultimate decision in the antecedent representation proceed-
ing, particularly where only 5 days after it had acted the
Regional Director handed down a favorable decision which
was the law of the case until reversed more than 5 months
later. (General Counsel does not contend that the Company
has taken any action since October 13, 1970, which is incon-
sistent with the Board's Decision on Review.)
I have considered the arguments advanced by counsel and
have considered in addition other possible contentions which
could affect the decision herein. There is no rationale which
appears to me as clearly correct. Any decision involves con-
flicts among equally compelling considerations. This case
contains a combination of unusual circumstances which exac-
erbate an already complex and troublesome legal area. Be-
cause of this I believe the instant case should not be consid-
ered as a precedent of general application but that the
decision should be limited to the uncommon conjunction of
facts here present which are not likely to arise again. It is my
conclusion that Respondent has not violated the Act. On the
facts in this case I find that prior to October 13, 1970, when
the Board issued its Decision on Review, the Respondent
lawfully was entitled to continue, at least to the extent that
it did, its dealings with and its recognition of Local 113 and
that it was not then under any legal duty to recognize Local
38 as the collective-bargaining representative of its press-
men 19 In view of this finding it is unnecessary to consider the
other legal questions adverted to above and I shall recom-
mend that the complaint herein be dismissed in its entirety.
CONCLUSIONS OF LAW
General Counsel has failed to prove that the Respondent
has violated the Act as alleged in the complaint.
Upon the foregoing findings of fact, conclusions of law, and
the entire record, and pursuant to Section 10(c) of the Act,
I hereby issue the following recommended-
ORDER
The complaint is dismissed in its entirety
" See Modern Plastics Corporation, 155 NLRB 1126, 1138