Brittany Dyeing and Printing Crop.

National Labor Relations Board - Board Decisions

Feb 24, 1960

126 N.L.R.B. 785 (N.L.R.B. 1960)

BRITTANY DYEING AND PRINTING CORP. 785
Brittany Dyeing and Printing Corp . and Textile Workers Union
of America, AFL-CIO
Chauffeurs & Helpers Local Union #59, International Brother-
hood of Teamsters , Chauffeurs, Warehousemen and Helpers
of America and Robert Weirauch. Cases Nos. 1-CA-2795 and
1-CB-579. February 24, 1960
DECISION AND ORDER
On September 16, 1959, Trial Examiner Thomas A. Ricci issued
his Intermediate Report in the above-entitled consolidated proceed-
ings, finding that Respondent Brittany Dyeing and Printing Corp.,
herein called Brittany, had engaged in and was engaging in certain
unfair labor practices and recommending that it cease and desist
therefrom and take certain affirmative action as set forth in the copy
of the Intermediate Report attached hereto. The Trial Examiner
further found that the Respondent Chauffeurs and Helpers Local
Union #59, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, herein called Local Union
#59, had not engaged in the unfair labor practice alleged in the com-
plaint and recommended that the complaint against said Local Union
#59 be dismissed in its entirety. Thereafter, Respondent Brittany
and Respondent Local Union #59 filed exceptions, and briefs in sup-
port thereof, to the findings, conclusions, and recommendations of the
Trial Examiner with respect to the complaint against Respondent
Brittany.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its power in connection with this case to a three-member
panel [Chairman Leedom and Members Rodgers and Jenkins].
The Board has reviewed the rullings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The-rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and briefs, and the entire record
in the case, and hereby adopts the Trial Examiner's findings,' con-
clusions, and recommendations except as modified herein.
1. Respondents contend that no actual request for recognition was
made to Brittany by Textile Workers of Union of America, herein
' In the Intermediate Report, the Trial Examiner states, in the section entitled "The
case against Brittany," that the decisive question herein is whether Textile Workers
Union of America had claimed recognition of Brittany on March 4, 1959, in such a manner
as to create a "real " rather than a "bare" question concerning representation. We do
not agree . We find the decisive question to be whether recognition had been requested
of Brittany by Textile Workers Union of America , prior to the execution of the aqi cen,ent
with Local Union #59, in such a manner as to create a "rear" rather than a "bare"
question concerning representation
In his Intermediate Report, the Trial Examiner , in the 10th paragraph of "The
facts " Inadvertently refers to Local 56 instead of Local 59.
126 NLRB No. 95.
554461-60-vol. 126-51
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
called TWUA. Like the Trial Examiner, we find that a specific re-
quest for recognition was unnecessary herein. TWUA did not know
until February 23, 1959, that operations would be resumed, at what had
been the Normandie plant,2 under the name Brittany Dyeing and
Printing Corp. However, Production Manager Joblon 3 had, on
February 20, discussed the application of the terms of the existing
contract with Normandie to such resumed operations. We infer there-
from that Joblon anticipated the application of the terms of the
existing contract to Brittany inasmuch as the only operations sub-
sequently resumed, or intended to be resumed, were those carried on
under the Brittany name. Accordingly, TWUA's refusal of February
20 to deviate from certain terms of the existing agreement 4 was
directed to the prospective resumption of operations of which Joblon
had spoken. The differences in company names and in the identity
of ownership, under the circumstances herein, cannot alter this fact.
TWUA's negotiating with respect to changes in the existing contract
terms, in the context within which such negotiations took place, thus
was tantamount to a notification that TWUA deemed itself entitled,
with respect to Brittany, to a continuance of the recognition accorded
it by Normandie. Joblon, therefore, must have been aware of this
fact, even though the name "Brittany" had not been mentioned at
the February 20 meeting. In addition, Joblon's remarks during the
course of this meeting, with respect to the contract with TWUA, are
indicative of the fact that he believed that TWUA possessed more
than a bare claim to represent the employees of Brittany. The sub-
stantiality of the question concerning representation existing by virtue
of TWUA's position was not diminished by the fact that Local Union
#59 accompanied its request for recognition with authorization cards
indicating majority status.5 We find, therefore, that Brittany's selec-
tion of Local Union #59 as the bargaining representative of its em-
ployees, in the face of TWUA's claim, was in derogation of the rights
of said employees to make their own selection with respect to their
bargaining representative and, accordingly, that such action on the
part of Brittany, and its subsequent execution of a contract with
z Normandle Printing Co. ceased operations on December 23, 1958, apparently for
economic reasons.
3 The Trial Examiner refers to "Joplon " while the record makes reference to "Joblon."
We recognize that both spellings are intended to refer to the production manager of
Respondent Brittany.
4 Although Joblon had requested contract concessions wherein wages would be reduced
from $2 021/2 and $1 751/2 per hour to $ 1.55 and $1 45 per hour for screen print and
finishing employees , respectively , and concessions wherein fringe benefits would be gen-
erally reduced , TWUA stated that it could grant concessions in the contract only with
respect to the fringe benefits It is to be noted that the contract between Respondent
Brittany and Local Union .H.59 provides for wage rates of $1 55 and $1 45 per hour for
screen print and finishing employees , respectively
s Halben Chemical Co, Inc, 124 NLRB 872.
BRITTANY DYEING AND PRINTING CORP. 787
Local Union #59, was violative of Section 8(a) (1) and (2) of the
Act.6
2. The record does not indicate that Local Union #59 possessed
any knowledge with respect to TWUA's claim that it represented the
employees of Brittany. We, like the Trial Examiner, find it unneces-
sary to consider, therefore, the ramifications which possession of such
knowledge might produce. Accordingly, we concur with the Trial
Examiner's finding that Local Union #59 did not violate Section
8(b) (1) (A) of the Act.
ORDER
Upon the entire record in this case and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Brittany Dyeing
and Printing Corp., New Bedford, Massachusetts, its officers, agents,
successors, and assigns, shall :
1. Cease and desist from :
(a) Assisting or contributing support to Chauffeurs and Helpers
Local Union #59, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, or any other labor
organization.
(b) Recognizing and contracting with Chauffeurs and Helpers
Local Union #59, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, as the bargaining
representative of its employees, unless and until said labor organiza-
tion shall have demonstrated its exclusive majority representative
status pursuant to a Board-conducted election among the employees.
(c) Performing or giving effect to its March 4, 1959, agreement
with said union, or to any renewal, extension, modification, or supple-
ment thereof.
(d) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-organization,
to bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purposes of collec-
tive bargaining or other mutual aid or protection, or to refrain from
any or all of such activities except to the extent that such right may
be affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment as authorized in Section 8 (a) (3) of
the Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
e Midwest Piping & Supply Co., Inc, 63 NLRB 1060; Novak Logging Company, 119
NLRB 1573.
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Withdraw and withhold all recognition from Chauffeurs and
Helpers Local Union #59, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, as the collective-
bargaining representative of its employees, unless and until said labor
organization shall have demonstrated its exclusive majority repre-
sentative status pursuant to a Board-conducted election among the
employees.
(b) Post at its New Bedford, Massachusetts, plant, copies of the
notice attached hereto marked "Appendix."' Copies of said notice,
to be furnished by the Regional Director for the First Region, shall,
after being duly signed by the Respondent Brittany's representative,
be posted by said Respondent and maintained by it for a period of 60
consecutive days thereafter, in conspicuous places, including all places
where notice to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the First Region, Boston,
Massachusetts, in writing, within 10 days from the date of this Order,
what steps the Respondent Brittany has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint filed herein against
Chauffeurs and Helpers Local Union #59, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America, be,
and it hereby is, dismissed in its entirety.
7 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Ordei" the
words "Pursuant to a Decree of the United States Couit of Appeals, Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
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, we hereby notify our employees, that :
WE WILL NOT assist or contribute support to Chauffeurs and
Helpers Local Union #59, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, or to
any other labor organization.
WE WILL NOT recognize or contract with Chauffeurs and Help-
ers Local Union #59, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, as the bar-
gaining representative of our employees, unless and until said
labor organization shall have demonstrated its exclusive majority
representative status pursuant to a Board-conducted election
among our employees.
BRITTANY DYEING AND PRINTING CORP. 789
WE, WILL NOT perform or give effect to our March 4, 1959, agree-
ment with said Local Union #59, or to any renewal, extension,
modification or supplement thereof.
WE WILL withdraw and withhold all recognition from Chauf-
feurs and Helpers Local Union #59, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, as the collective-bargaining representative of our em-
ployees, unless and until said labor organization shall have
demonstrated its exclusive majority representative status pursu-
ant to a Board-conducted election among our employees.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of their rights of
self-organization, to bargain collectively through a representative
of their own choosing, and to engage in other concerted activities
for the purposes of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities except to
the extent that such right may be affected by an agreement re-
quiring membership in a labor organization as a condition of
employment as authorized in Section 8(a) (3) of the Act, as
modified by the Labor-Management Reporting and Disclosure
Act of 1959.
BRITTANY DYEING AND PRINTING CORP.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding , with all parties represented , was heard before the duly designated
Trial Examiner in New Bedford, Massachusetts , on July 28 and 29, 1959, on separate
complaints issued by the General Counsel , one against Brittany Dyeing and Printing
Corp., herein called the Company Respondent or the Company , and the other
against Chauffeurs and Helpers Local Union No. 59, affiliated with International
Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America,
herein called Local 59 or the Respondent Union . Answers were duly filed by both
Respondents, in which each denied the commission of any unfair labor practices.
The issues litigated were whether the Respondent Company violated Section 8(a) (1)
and (2 ) of the statute, and whether the Respondent Union violated Section 8(b)(1)
(A). The two complaints, each based on a separate case, were consolidated by
order of the Regional Director.
Upon the entire record and from my observation of the witnesses , I make the
following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT COMPANY
Brittany Dyeing and Printing Corp., a corporation existing under the laws of the
State of Massachusetts , maintains its principal office and place of business at 1357
Rodney French Boulevard , New Bedford, Massachusetts , where it is and has been
continuously engaged in the business of dyeing and printing textiles and related
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
products. In the course of its business it receives raw materials transported in
-interstate commerce from other States of United States, and causes substantial
quantities of its products to be sold and transported out of the State of Massachusetts.
It annually ships such products directly to out-of-State points in an amount valued
at over $50,000.
The complaint alleges, the answers admit, and I find that the Company is engaged
in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Chauffeurs and Helpers Local Union No. 59, affiliated with International Brother-
hood of Teamsters , Chauffeurs , Warehousemen and Helpers of America , is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The issues: On March 4, 1959, the Respondent Company, Brittany, signed a
collective-bargaining contract with the Respondent Union, Teamster Local 59, rec-
ognizing it as the exclusive bargaining representative of all its production and main-
tenance employees. Textile Workers Union of America, AFL-CIO, herein called
TWUA, charged that execution of this contract was an unlawful act by both Re-
spondents because TWUA had long represented the employees involved, it had
continued to assert to Brittany its claim to such majority status, and Local 59 did
not on the critical day in fact represent a majority of the employees. Consistent
with such charges, two complaints were issued-one against the Company and one
against Local 59. The first alleges that because TWUA's claim was real and alive,
and because Local 59 represented only a minority of the employees, the Company
unlawfully assisted Local 59 and unlawfully coerced its employees by signing the
contract, in violation of Section 8(a)(2) and (1) of the Act respectively. The
second complaint alleges that for the same two factual reasons Local 59 unlawfully
coerced the employees in violation of Section 8(b)(1)(A) of the Act. Thus the
only act to be appraised as lawful or unlawful is execution of the single contract on
March 4, 1959.
The facts: In large measure, the facts upon which the complaints rest are undis-
puted. The only factual issue to be resolved so far as the evidence is concerned
arises from a direct conflict between the testimony of Carignan, regional director and
secretary-treasurer of TWUA, and Joplon, officer, stockholder, and general manager
of the plant where the employees covered by the contract work. Carignan testified
he had certain conversations with Joplon after the first week in January 1959, and
up to February 20, and Joplon flatly denied he ever saw or exchanged a single word
with Carignan after the first few days of January.
The pertinent facts logically fall into two categories-the relationship between
Brittany and TWUA, and the relationship between that company and Local 59.
All of the following is undisputed. At 1357 Rodney French Boulevard, in the
city of New Bedford, Massachusetts, there exists a plant, devoted to printing and
dyeing textiles, with all the usual equipment. For upwards of 15 years it was
operated by a company called Normandie Printing Co., and throughout that time
TWUA was the recognized majority representative of the employees pursuant to
successive written collective-bargaining agreements. The last contract was made in
1957, and by its terms extended into October 1959. Among the substantive provi-
sions of that contract were the wage rates, set at $2.021/2 and $1.751/2 per hour for
screen print and finishing respectively, the major classifications. About 126 em-
ployees were at work.
Joplon, the president and a stockholder in Normandie, was in direct charge of the
day-to-day operations of the plant; he signed contracts on behalf of Normandie
and regularly dealt personally with Carignan in matters of labor relations concerning
the employees. Because of financial difficulties, the plant closed on December 23,
1958. On learning of the shutdown Carignan telephoned Joplon to discuss the
situation. Carignan expressed concern over the welfare of the employees and asked
Joplon about the prospects of early resumption of work. Joplon was apologetic that
it had occurred so soon before Christmas, explained the directors over him had
given no choice because of mounting financial losses, and said he could predict
nothing about the future.
The operation was refinanced. Precisely who the major debtors, creditors, and
new owners were is unclear. It does appear, however, that a group called Dartmouth
Textile Works had advanced a $125,000 loan to Normandie a year earlier and was
calling in its loan. Joplon, as he testified, tried to raise money to pay Dartmouth
off immediately after the shutdown. At one point he said he was doing this on
behalf of a customer, and not for himself: "This had no connection with me."
BRITTANY DYEING AND PRINTING CORP. 791
Elsewhere he said ". . . my plan was to make a living the best way I possibly knew
how," and that he and one Schaffer, who was associated with him in Normandie,
had discussed buying machinery and equipment for printing and finishing from
Normandie . It does appear that for a period, while the plant was closed, Joplon
was either out of the picture or in uncertain status. In any event , operations were
resumed on about February 14, 1959, with only a few employees to operate the
plant. A new company was formed , called Brittany Dyeing and Printing Corp., the
Respondent here. Joplon emerged as minority stockholder and production manager
in charge of operations . By February 23 there were approximately 16 or 17 em-
ployees at work.
On February 14 TWUA held a meeting of employees who had worked for Nor-
mandie Print, where the reopening of the plant was discussed . A committee of 10
was selected to "watch the situation ." Another such meeting was held at a hall on
February 22, where about 95 old employees gathered and talked the matter over
with Carignan . An almost unanimous strike vote was taken and on February 23
TWUA established a picket line in front of the Company 's building , which was
occupied by this plant and other concerns engaged in unrelated commercial activities.
The pickets were not present or former employees but TWUA representatives; they
carried placards reading "plant on strike-no contract-no work." The picketing
has not been discontinued.
On March 4 TWUA wrote a letter to the Respondent Company, claiming that
its existing, unexpired contract with Normandie Print was still in force against
Brittany as a party successor to the contract.
Turning now to the conflict in testimony , Carignan testified that after his early
January talk with Joplon , he called the latter several times on the telephone to
inquire further what the outlook was and that on each occasion Joplon replied he
could not say definitely but that he was attempting to raise additional capital to
resume operations . Carignan explained he continued to call because the employees
kept inquiring of TWUA what they could expect . Carignan also reminded Joplon
of the existing contract, and told him that when work resumed it would have to be
in accordance with those contract terms. Still according to Carignan, he made a
final call and arranged a luncheon meeting with Joplon at the Cathay Temple, a
restaurant in New Bedford, where they met on February 20 . Here Joplon told
him operations were about to resume , but that there would have to be economic
concessions by TWUA, on pay rates and fringe benefits. Carignan replied there
could be no reduction in wage rates but that his union would consider contract
changes in fringe benefits , possibly changing these aspects of the agreement from a
"Metropolitan" to a "New England" type contract . Joplon asked Carignan to agree
to rates of $ 1.55 and $ 1.45 per hour in place of the earlier higher ones, and Carignan
refused.
In direct contradiction , Joplon testified Carignan "lied." According to him, he
met Carignan at the restaurant a few days after New Year 's Day because he felt
"obligated" to explain the shutdown and to apologize , but that he never thereafter
heard from Carignan , or met with him, or spoke to him , until he received the
March 4 letter after the contract with the Teamsters was executed . Asked to
explain what he understood to be the meaning, or purpose of the picket line estab-
lished by TWUA on February 23 , he said it was only a "harassment," and something
"beyond my comprehension."
On the activities of Local 56, and the Company's response thereto there is no
factual issue. All parties stipulated that on March 4, 1959, a majority of the
employees of Brittany had signed membership application and representation
authorization cards in favor of Local 59 , and on that day Brittany executed a
contract in which that union was recognized as exclusive representative of all the
employees . The agreement contains a lawful union-shop clause requiring present
members to retain their membership in, and new employees to acquire membership
in, Local 59 after 30 days of employment.
Tripanier, president and organizer of Local 59, detailed further, without contra-
diction, that on about February 23 some employees communicated with his union
seeking representation , that he visited the plant several times shortly thereafter, and
that he obtained 12 authorization cards signed by employees . On February 27
Local 59 wrote a letter to Brittany claiming majority representation and on the
same day its attorney wrote to the Massachusetts State Board of Conciliation and
Arbitration , advising it that a strike threat existed at Brittany. Mark Sander, a
Massachusetts board conciliator , telephoned Joplon on Monday morning, March
2, and invited him to the office of Local 59. Joplon immediately proceeded to
the office of Local 59, where the conciliator compared the signatures on the au-
thorization cards with the Company 's tax withholding signature cards for all its
employees , and voiced his satisfaction that Local 59 represented a majority. Tri-
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
panier and Joplon discussed the terms of a contract on Monday afternoon and dur-
ing Tuesday in the plant . Late that evening Tripanier explained the agreed-upon
terms to the employees and the next day he and Joplon signed the contract in
the plant . The wage schedules set out in it vary from $ 1.25 to $1.55. Screen
printers receive $1 . 55 per hour , and finishers $1.45.
I credit Cangnan 's testimony that he called Joplon a number of times during
January and February, that he told Joplon in January TWUA would insist future
operations must follow the terms of the current contract , that on February 20
Joplon asked him to agree to reduce the wage rates , and that Carignan refused.
Joplon 's relations with TWUA had been friendly; they must have been, for Joplon
said he felt an obligation to explain to Carignan (as distinguished from the em-
ployees ) and to apologize for the sudden and, apparently , unannounced closing
of the shop . If I am to believe, as Joplon testified , that not a word passed between
him and Carignan or any TWUA representative after the first week of January,
I must also believe that despite their long, amicable relations , Carignan started
picketing the plant without first telling Joplon why he was doing so and without
making any attempt, in a friendly way, to adjust TWUA's grievance with Joplon,
as they necessarily must have done in the past . I would also have to believe that
despite their past relations , Joplon saw his plant picketed by that union continuously
from February 23 to March 4 without once asking Carignan what it was all about.
These are both highly improbable eventualities.
Carignan 's story instead is logically consistent with certain objective facts clear
on the record . He said Joplon wanted to reduce wage rates very substantially, and
this is exactly what Joplon did when he reopened . Certainly the employees, who
had been paid the higher wages, would wish to retain them. And certainly Joplon
had the desire to reduce them . It can hardly be suggested the reduction in pay
was one of the demands of Local 59, a demand to which Joplon may have acceded
when he signed up with the new union . Unquestionably , therefore , the new and
lower rates were instituted , precisely consistent with the plan which Joplon is said
to have first proposed to Cangnan, as soon as employees were recalled to work.
Just as I have no reason to disbelieve Tripanier 's testimony that he solicited
membership among the plant workers , so I must accept the fact that Carignan did
hold two meetings with the old group of employees on February 14 and again on
February 22, that they discussed the new wage rates, and , that they voted to strike.
The plant had started operations ; the new rates were in effect; and the employees
knew it. Quite apart from .the special circumstances here of recent good feeling, and
of, perhaps , occasional arbitrary and highhanded treatment of employers by unions,
it would be an utterly abnormal strategy for an established union to proceed with
strike action without first at least attempting to obtain its demands by simple request.
Indeed, strike action, without any word to an employer as to the reason , would be
self-negating and necessarily abortive. Much more likely therefore , as Carignan
testified , he already knew, and the employees knew through him, that the disagree-
ment upon wages, having been discussed with Joplon , left them the choice of striking
or yielding.
And finally, Joplon, as a witness , did not impress me. He was evasive generally
and by his demeanor on the stand revealed a frivolous and jocular attitude towards
the entire proceeding . Moreover, he insisted he was unable to recall dates and
details concerning matters that must have been of serious importance to him. For
example, he said there came a time when promissory notes were delivered to buy
off old creditors , he ceased being an officer and stockholder of Normandie, he
acquired a financial interest in the new company , and all parties exchanged written
general releases putting an end to old liabilities . He said all this took place simul-
taneously one day, but he could not remember the date.
On the total record , considering the inherent probabilities of the events as they
unfolded, and in view of Joplon's demeanor on the witness stand , I credit Carignan
and find that Joplon told him during January and February he was making efforts
to reopen the plant with new capital , that he wanted TWUA to agree to a substantial
reduction in wages, and that he did meet and discuss his plans for reopening the
plant with Carignan on February 20, 1959.
Analysis and Conclusions
The Case Against Brittany
The complaint against Brittany calls the Company' s execution of the March
4 contract unlawful for two reasons: (1) because a rival claim for representation
by TWUA was then pending ; and (2) because Local 59 did not represent a majority
`BRITTANY DYEING AND PRINTING CORP . 793
of the employees on that day. As I understand the theory of the General Counsel
the two grounds are not really disassociated by rather one flows inextricably from
the other. Thus, he stipulated with all parties that on March 4 a majority of the
employees had in fact signed authorization cards in favor of Local 59. He referred
to this type of majority as a majority "in fact," to be distinguished from a majority
"in law," which, he says, has not been shown in this case . He also admitted that
there is no direct or affirmative proof establishing the fact that Local 59 only repre-
sented a minority of the employees . Instead, he explained , that the essential sub-
sidiary fact of minority status is affirmatively established , and necessarily flows
from the existence of the question concerning representation found in the continuing
claim for majority status by TWUA. In short, he conceded that unless it is first
found that a real demand for majority recognition has been proved on this record,
there is no other proof that Local 59 represented only a minority . In substance
therefore this complaint is essentially grounded on the assertion that Brittany un-
lawfully recognized one union when there were two claiming representation.
In this type of situation , Board law is clear . Where an employer is confronted
with rival union claims for exclusive recognition , one of which is substantial , reliably
supported by reasonable evidence , and the other no more than a "bare" claim without
substantiation , the employer is free to recognize and deal with the union which in
fact represents the majority of the employees . ' Where instead he extends recognition
to a union which ostensibly evidences majority status , at a time when a rival labor
organization is also claiming exclusive recognition in circumstances which raise a
"real" question of representation , or a substantial issue as to which union is the
true choice of the employees , the employer violates the general proscription of the
statute which guarantees to all employees freedom of choice in the matter when he
himself resolves the question by according exclusive recognition to one of the com-
peting unions. This is the rule of Board law announced in the Midwest Piping case,
long enforced , and recently affirmed ? Such action by an employer, in addition to
unlawfully coercing the employees , has also been held to constitute unlawful assist-
ance to the contract union in further violation of the Act.3 The question here,
therefore , is whether TWUA had claimed recognition of Brittany on March 4, 1959,
and in such circumstances as to create a "real" question of representation. I am
satisfied, on the total evidence , and I find, that it did so.
Joplon, officer and part owner of both Normandie and later of Brittany , was at all
times the manager and in direct control of operations of the plant. Whoever the
other owners may have been from time to time, and however the corporate entity
may have changed , it was always he who had charge of labor relations and dealt
with the union or unions on behalf of the "Company ." The total complement of
employees shrank in the changeover between December 1958 and the following
March, but the physical plant, the type of machinery, the job classifications, the
nature of the work, the products , and even some of the customers remained the
same Of the approximately 14 employees at work on March 4 , 10 or 12 had been
recalled from the earlier operations
These were therefore predominantly employees covered by the earlier contract
and long represented by TWUA. The first thing Carignan told Joplon , early in
January, as they discussed the chance of reopening the plant, was that the unexpired
contract must continue to govern conditions of employment . But insistence upon
the effective force of a current contract necessarily includes the underlying claim to
recognition . There is no indication Joplon disclaimed the contract . Carignan con-
tinued to call Joplon from time to time. He did not in so many words "claim
majority representation"; his immediate concern was the reopening of the plant,
and that is what he talked about. The necessary import of his calls, however, could
only have been a continuing representation interest in the employees , and Joplon
could hardly have thought otherwise. This is what the dealings between these two
men had always rested upon . Indeed, Carignan had no other plausible or indicated
reason for calling Joplon at all. As to the Cathay Temple meeting , held after
the plant had resumed work, it was an out and out bargaining conference . Joplon
wanted to pay less for labor, and TWUA insisted upon more. Certainly, while an
employer 's representative is negotiating the terms of employment with a union
agent who for years bargained with him for the very employees involved, that union
need not keep repeating "we claim to represent a majority ." Its claim , as a minimum,
is implicit in every word spoken by both sides. Joplon refused to yield to TWUA's
William Penn Broadcasting Co, 93 NLRB 1104
2 Midwest Piping it Supply Co , Inc., 63 NLRB 1060; Novak Logging Company, 119
NLRB 1573
3 Jersey Contracting Corp., 112 NLRB 660.
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wage demands , and 3 days later pickets appeared with signs reading "No contract
no work." 4
In seeking to avoid the conclusion that TWUA continued to reassert its majority
representative status for these employees regardless of the name or identity of the
company employer at any given moment, the Respondent Company relies upon the
fact a new business concern came into existence , and that Normandie Printing, which
had signed TWUA's last contract , no longer existed. It would have it that Carignan's
continued demand , if any, was against Normandie . This is not only a superficial
technicality , but it also conflicts squarely with the fact that by February 20 Brittany
had already been formed, and the employees for whom Carignan was negotiating
were in fact employees of the new company. In view of this fact , if no other,
Joplon 's expressed belief that he considered TWUA's picket line as directed against
Normandie , and not against the Respondent , loses all persuasion . Not only had
Normandie ceased to be , but there was no other textile factory in the premises being
picketed . I cannot join in the thought that any of the parties did not know exactly
who, and why TWUA was picketing the plant. Indeed Joplon confessed this
knowledge as early as February 22, when , on learning TWUA had decided to start
picketing , he told a newspaper reporter : "If Mr. Carignan has a majority , I would
be glad to talk to him."
On the basis of all the foregoing , and on all that appears on the record , I find that
the continuing claim for recognition of TWUA was a substantial and "real" one
within the concept of the Board 's past decisions in this type of situation . Accord-
ingly, as "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 special procedures provided in the Act," I find that
by executing the March 4, 1959, contract with the Respondent Local 59, the Re-
spondent Company violated Section 8(a)(1) and (2) of the Act.5
The Case Against Local 59
The ultimate complaint allegation against the Respondent Union is that it violated
Section 8(b)(I)(A) of the statute, which reads: "It shall be an unfair labor prac-
tice for a labor organization or its agents . to restrain or coerce . employees
in the exercise of the rights guaranteed in Section 7: . .. . " It is charged with
having violated this section by one act, and one act alone-execution of the March
4, 1959, contract with Respondent Company. Two major factual allegations are
asserted in the complaint, essential subsidiary facts intended to establish a reason
why the act of making the contract was unlawful. The first (paragraph 8a) alleges
that Local 59 "did not represent a majority of the employees" on the day the contract
was executed. The second (paragraph 8b) alleges that on that day a claim for
recognition by TWUA "was active and continuing." On their face, these two facts
do not appear to bear any relationship one to the other, and the complaint nowhere
suggests that they do.
If the complaint is considered literally it can be taken as meaning that if either
of the two assertions is proved, the execution of the contract becomes unlawful.
As to the first ground-minority status-the Board has recently held at execution
of a contract giving exclusive recognition to a union which in fact represents only a
minority of the employees covered, is an act of coercion upon the employees by the
union and therefore a violation of Section 8(b)(I)(A).e As to the second ground-
the fact that a rival union was then claiming representative status-there is no legal
precedent holding that such a fact alone suffices to make illegal, by a union, an
otherwise perfectly lawful contract. And the General Counsel, in his oral argument
at the hearing, conceded this to be so.
With this admission by him, a next possible appraisal of the intendment of the
complaint is a theory that both subsidiary facts-minority status and rival claim-
established and considered together, constitute the necessary support for the ultimate
contention that execution of the contract was therefore unlawful But this cannot
be the theory of the case, and the General Counsel conceded that also when he
agreed there was no independent proof of minority standing. If fact number one-
minority status-suffices to prove illegality, the second is not necessary, especially
4 Compare, United Rubber, Cork, Linoleum, and Plastic Workers of America, AFL-CIO,
and its Local 511 (O'Sullman Rubber Corporation), 121 NLRB 1439, enfd 269 F. 2d
694 (CA 4), which equates a contract demand with recognition demand
5 Novak Logginq Company, supra
6 Bernhard-Altmann Texas Corporation, 122 NLRB 1289.
BRITTANY DYEING AND PRINTING CORP. 795
where , as here , fact number two-rival claim-has never been deemed an obstacle
to exclusive recognition.
The foregoing reasoning leads to but one conclusion concerning exactly what
subsidiary facts must be established to prove the unfair labor practice, and that is:
Local 59 in fact represented only a minority of the employees on March 4, 1959.
That this is the sine qua non to support the entire complaint against the Respondent
Union the General Counsel, at least during one portion of his argument, did agree
of the record. In the light of his factual stipulation that a majority of the em-
ployees-12 out of 14-had signed membership authorization cards in favor of Local
59 before the contract was executed, his contentions concerning the evidence become
obscured. Having proved that there did exist at that time a rival claim by TWUA,
which must be considered as having raised a real question concerning representation,
he requested a further factual finding-based on that evidence alone-that Local 59
represented no more than a minority of the employees.
If the above breakdown of the factual allegations of the complaint seems almost
childlike in its simplicity, it is only because the General Counsel explicitly said he
rested his case against the Union Respondent on pure logic.7 He admitted, as indeed
he must, there is no direct evidence to prove minority status affirmatively. He
wants it reasoned, from the sole fact of a rival claim, that the "fact" of the authori-
zation cards received in evidence be supplanted by a logical conclusion that the
cards establish "nonmembership," instead of "membership." The issue, then, being
presented as one of a logic, I can only test it against the same process of reasoning.
I view the cards placed in evidence at least as prima facie evidence that Local 59
represented a majority. To remove the cards from consideration, the General
Counsel pointed to certain language regularly appearing in those Board decisions
involving unfair labor practices by employers who make contracts with one of two
simultaneously competing unions. Thus, in the original lead case of the subject,
Midwest Piping, supra, the Board said that cards "obtained during the heat of rival
organizing campaigns . . . do not necessarily reflect the ultimate choice ." of
the employees. Later, continuing to apply the same rule of law where an employer
is charged with having arrogated to himself the privilege of deciding which of two
competing unions in fact represents a majority, the Board described such cards as
"notoriously unreliable." 8 The same language continues to appear consistently in
later decisions, always critical of an employer's actions in favoring one of two unions.
See, for example, Novak Logging Co., supra, at footnote 7, reaffirming, by direct
quotation, the descriptive language of the Midwest Piping case.
I think the General Counsel in this case has not proved affirmatively that Local
59 represented only a minority of the employees, or did not represent a majority.
Lack of majority, although a negative proposition, is one that must be proved af-
firmatively to support the complaint. The General Counsel concedes that on a
record showing only that a contract is executed, with no reference whatever made
to any cards-good or bad-it cannot be found affirmatively that the Union does not
represent a majority. He also added it is not his contention the union bears an af-
firmative burden, in the first instance, to disprove a mere allegation of minority
status, or that it in fact represents a majority. If to this skeleton case there is then
added evidence of cards, which, for one reason or another, are found to be un-
reliable, and therefore to be ignored, can it be said, as a matter of logic, that there
remains more than appeared when no cards at all were ever shown? I think not.
When questionable, or doubtful cards are eliminated from the picture, nothing re-
mains. But that is precisely the situation when the record shows only a contract and
nothing more. The General Counsel sees more than there is in the words "un-
reliable" or "not necessarily reflecting." Each card reads: "I authorize the Union."
To say such a card is "unreliable," or does not "necessarily reflect" the employee's
true intent, is to say it does not truly reveal his state-of-mind, or, one does not know.
But not knowing cannot be equated with affirmatively knowing, or stating that the
employee does not authorize the union to act on his behalf. He may or he may not,
7 In his argument , the General Counsel said
. . . how does the fact that the cards are notoriously unreliable equal affirmative
proof of minority status " Well, that to me seems to be a logical demonstration.
If I can demonstrate that a thing is logically null, . . I demonstrate in effect
that it equals zero. That ' s the heart of my argument as to the cards , and shortly,
if I show that these cards are no good, as I would , for instance if I show they are
obtained through fraud , deceit , or misrepresentation , I show they are invalid , there-
fore these cards cannot be counted , therefore it follows that in the counting they
represent nothing , and the Union represents a minority
8 Siinbeain Corporation , 99 NLRB 546
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is all that follows from calling the card "unreliable." The positive conclusion-that
he, or the employees, desire the opposite of what they have written-can only be
stated, on the basis of something more than merely disregarding the evidence that
appears.
Apart from the matter of pure logic, the General Counsel has misconceived the
true purport of the Board's holdings in the Midwest Pipe line of cases. The very
problem giving rise to all these cases is itself a question-called a "question con-
cerning representation." With rival unions organizing the same group of employees,
how determine which, if any, represents a majority? The employer may not make
the decision, it is for the Board to resolve the question by secret election under the
scheme of the statute. Recognizing that under the statute a union in fact enjoying
majority status is entitled to exclusive recognition, and, indeed, that an employer is
obligated to accord it, the Board is careful to avoid saying that the contract union
does not have such status at the moment. Were the Board to say this, it would
itself be resolving the basic question, adversely to that union, in the absence of the
very election which the Board says is the only way to answer the question concerning
representation in these circumstances. It is for this reason that the language of those
decisions only cast aspersions upon the cards, and does not say whether they are
good or bad. In this way, the question of majority status is kept alive for an elec-
tion to resolve. When, therefore, the General Counsel reads into those decisions a
positive finding that the employees do not want a particular union, he departs from
the entire concept of the cases.
Interwoven through the General Counsel's argument, but in essence not a
separate and distinct contention, is the theory that because the employer confers an
unwarranted prestige upon the contract union, the union also coerces the employees
by accepting it. He called this theory the "other side of the coin" of the Midwest
Piping rule. I am not sure I understand this precisely; the General Counsel said it
stands apart from the first argument involving the "logical" demonstration of lack
of majority. The position was not submitted in writing; from a careful study of the
oral argument made at the hearing, the theory appears to be as follows:
(1) When Brittany signed the March 4 contract with Local 59, its act was unlaw-
ful and therefore the resultant agreement was itself "illegal," a word the Board has
often used to describe the contract in the context of a Midwest Piping situation;
(2) an unlawful contract exerts a coercive effect upon the employees which it em-
braces. For example: a closed-shop contract forces employees to join the union;
exclusive recognition deprives the employees of freedom to choose a union other
than that which signed the contract; (3) as the coercion, or illegal compulsion
upon the employees, springs from the contract itself, the parties thereto-each bene-
fitting from its existence-must be held accountable for its inherent evil. According
to the General Counsel, Brittany signed only in order to avoid destructive picketing
by the Teamster Local, and Local 59 signed in order to gain recognition without risk-
ing the results of a secret Board election; and (4) finally, as the evil lies in the
contract itself once it is made, intent and motive by the Respondents become im-
material, and therefore, there is no need to prove, either that Brittany was aware
the rival claim was anything but a bare, unsupported request, or that Local 59 ever
knew TWUA existed, let alone was claiming in any way. So long as TWUA's claim
in fact was a substantial, "real" one, nothing else need be proved except execution
of the contract.
I think this entire ingenious structure of ideas cannot avail to support the com-
plaint against Local 59 in this case because it rests on too weak a foundation.
Repeatedly, the General Counsel insisted that when an employer makes this type
of contract "it is the Midwest context that coerces." I help him by giving body to
the nebulous thought, and read "context" to mean "contract." But even with so
tangible a concept, the nature of the unfair labor practice found in the case against
the employer is being totally misread. Coercion, or restraint upon employees is a
consequence that flows from certain conduct of people, acting either individually or
on behalf of employer companies or labor organizations. Coercion does not flow
from inanimate objects; rather, a signed contract, or a posted notice, or a letter
containing a threat is the means whereby the actor brings illegal pressure upon those
affected by the written document. Restated: the contract evidences, in the best
way possible, the act of a respondent which the Board finds to have been an unfair
labor practice. When Brittany signed up with Local 59, it was Joblon, its manager,
and the Company, which deprived the employees of their freedom of choice. I do
not find that the March 4 contract is itself illegal. Indeed I may not, for on its face
it conforms with all statutory requirements. I find that the Company erred in pre-
suming to usurp the Board's function.
There are other weaknesses inherent in the General Counsel's last argument. To
say that because the Company acted illegally in signing the contract, it follows, as
BRITTANY DYEING AND PRINTING CORP. 797
"the other side of the coin," that Local 59 also violated the law, overlooks the fact
that Brittany made a choice between two unions , while Local 59 only did what comes
naturally. In the very nature of organizaional activities and the collective bargaining
process, demands are not made upon unions, as they are upon employers. The
"choosing" element, which the employer unlawfully preempts away from the em-
ployees when he picks a union for them, is never a factor in a union's activities.
Its only choice , if such it can be called , is to deal or not deal with the employer.
The union , therefore , has nothing to do with any labor organization . Once in
possession of membership cards voluntarily signed by a majority of employees, all
it can do is demand exclusive bargaining rights, as the entire scheme of the Act
contemplates.
I need not say what the answer would be in other circumstances . There is no
basis on this record-suspicion apart-for saying Tripanier, business agent of Local
59, knew of the long history of TWUA bargaining on behalf of these employees,
of Carignan 's futile negotiations with Joplon on February 20, or of all those other
facts, except for the picketing , which establish the real rival claim in this case It
has not been shown that Local 59 represented only a minority of the employees on
March 4. No other persuasive reason has been advanced for a legal conclusion that,
despite the fact 12 out of 14 employees authorized Local 59 in writing , that union
could not lawfully negotiate or sign an exclusive recognition agreement with the
Company. I shall therefore recommend that the complaint against Local 59 be
dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent Company set forth above , occurring in connec-
tion with the operations of that company as set out in section I, above, have a
close, intimate , and substantial relation to trade, traffic , and commerce among the
several States , and tend to lead to labor disputes burdening commerce and the free
flow of commerce.
V. THE REMEDY
Having found that the Respondent Company has engaged in certain unfair labor
practices , I shall recommend that it be ordered to cease and desist therefrom and
take certain affirmative action necessary to effectuate the policies of the Act
I have found that the Respondent Company recognized Chauffeurs and Helpers
Local Union No. 59 , affiliated with International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America , and entered into an agreement
with it on March 4, 1959 , during the pendency of a question concerning the repre-
sentation of the employees covered thereby. By such conduct , the Company has
interfered with, restrained , and coerced its employees in the exercise of their right
freely to select their own bargaining representative , and has accorded unlawful
assistance and support to that union. In order to dissipate the effect of the Re-
spondent 's unfair labor practices , I shall recommend that it be ordered to withdraw
and withhold all recognition from Chauffeurs and Helpers Local No. 59, and to
cease giving effect to the aforementioned agreement , or to any renewal or extension
thereof, until such time as that labor organization shall have demonstrated its
exclusive majority representative status pursuant to a Board -conducted election
among the employees. Nothing herein shall, however , be construed to require that
the Respondent Company vary or abandon any existing term or condition of
employment.
Upon the basis of the foregoing , and upon the entire record in the case, I make
the following:
CONCLUSIONS OF LAW
I Brittany Dyeing and Printing Corp . is an employer within the meaning of
Section 2(2) of the Act.
2. Chauffeurs and Helpers Local Union No. 59, affiliated with international
Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America,
is a labor organization within the meaning of Section 2(5) of the Act.
, 3. By contributing unlawful assistance and support to Chauffeurs and Helpers
Local Union No. 59 , affiliated with International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, the Respondent Company has engaged
in and is engaging in unfair labor practices within the meaning of Section 8(a)(2)
of the Act.
4. By interfering with, restraining , and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act , the Respondent Company has engaged in
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and is engaging in unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
5. The foregoing 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.]
Anderson Express Ltd. and James McCaffrey and Local Union
295, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America. Case No. 2-CA-6477.
February 24, 1960
DECISION AND ORDER
On September 16, 1959, Trial Examiner Louis Libbin issued his
Intermediate Report in the above-entitled proceedings, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices, and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Bean, and Fanning].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in
this case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner.'
ORDER
Upon the entire record in this case and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent Anderson Express
Ltd., New York, New York, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from :
(a) Maintaining in effect, implementing, or renewing paragraphs
(B), (C) and (D) of Section 6 of the agreement executed on October
8, 1958, with Local Union 295, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, or from
executing or maintaining in effect any agreement with the above-
named or any other organiaztion containing union-security provisions
not authorized in Section 8(a) (3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
i The Respondent's request for oral argument is denied as the record , the exceptions,
and the brief, adequately present the positions of the parties.
126 NLRB No. 97.