Emco Steel Inc.

National Labor Relations Board - Board Decisions

Jan 13, 1977

227 N.L.R.B. 989 (N.L.R.B. 1977)

EMCO STEEL INC. 989
Emco Steel Inc. andLocal Union No. 455, Internation-
al Association of Bridge, Structural and Ornamen-
tal Iron Workers, AFL-CIO and Local 810,
International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America,
Party in Interest. Case,29-CA-4645
NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversingbis findings.
2 Because the unfair labor practices here strike at the very heart of the Act
we shall modify the recommended order by requiring Respondent to cease
and desist from "in any other manner" interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed in .Sec. 7 of the
Act. Springfield Dodge, Inc., 218 NLRB 1429, fn. 2 (1975), and N.LR.B. v.
Entwistle Manufacturing Company, 120 F.2d 532 (C.A 4,1941).
January 13, 1977.
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
On September 2, 1976, Administrative Law Judge
Robert M. Schwarzbart issued the attached Decision
in this proceeding. Thereafter, General Counsel and
Respondent filed exceptions and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, fmdings,1 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order as modified herein.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that the Respon-
dent, Emco Steel Inc., Brooklyn, New York, its
officers, agents,- successors, and assigns, shall take the
action set forth in the said recommended Order as
modified:
Substitute the following for paragraph 1(d):
"(d) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
rights to self-organization, to form labor organiza-
tions, to join or assist Local Union No. 455 (Iron-
workers) or any other labor organization; to bargain
collectively through representatives of their own
choosing; to engage in concerted activities for the
purpose of collective bargaining or other mutual aid
or protection; or to refrain from any and all such
activities except to the extent that such right may be
affected by an agreement requiring membership in a
labor organization as a condition of employment, as
authorized by Section 8(a)(3) of the Act."
i The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91
227 NLRB No. 148
DECISION
STATEMENT OF THE CASE
ROBERT M. SCHWARzBART, Administrative Law Judge:
This case was heard in Brooklyn, New York, on March 10,
11, 12, and 29, 1976, on a complaint issued on December 5,
1975,1 based on charges filed on October 21 and November
5, respectively. The complaint alleges that Emco Steel Inc.,
herein Respondent, violated Section 8(a)(1) and (2) of the
National Labor Relations Act, as amended, herein the Act,
by executing a collective -bargaining agreement with the
Teamsters 2 after having voluntarily recognized and bar-
gained collectively with the Charging Party herein, Local
Union No. 455, International Association of Bridge,
Structural and Ornamental Iron Workers, AFL-CIO,
herein the Iron Workers, violated Section 8(a)(3) and(1) by
virtue of the fact that the said contract contained a union-
security clause, and contravened Section 8(a)(5) and (1) by
refusing to continue to recognize and bargain collectively
with the Iron Workers.
Respondent, in its answer, denied that any unfair labor
practices have been committed. Counsel for the General
Counsel and for Respondent have filed briefs which have
been carefully considered.
Upon the entire record, including my observation -of the
witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a New York corporation, is engaged in the
manufacture, sale, and distribution of iron and steel
products. During the past year, which period is representa-
tive of its annual operations generally, Respondent in the
course and conduct of its business purchased and caused to
be transported and delivered to its place of business in
Brooklyn, New York, steel supplies and other goods and
materials valued in excess of $50,000, of which goods and
materials valued in excess of $50,000 were transported and
delivered to it and received from various enterprises located
in the State of New York, each of which other enterprises
had received said goods and materials in interstate com-
merce directly from States of the United States other than
the State in which it is located.
During the past year, which period is representative of its
annual operations generally, Respondent in the course and
conduct of its business operations performed services or
caused to be manufactured, sold, and distributed at its
i All dates hereinafter are within 1975 unless stated to be otherwise.
2 At, the hearing the motion of Local 810, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein the
Teamsters, to intervene as a necessary party to this proceeding on the basis of
its contract with the Respondent Employer was granted.
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
place of business in Brooklyn, New York, products or
services valued in excess of $50,000, of which products or
services valued in excess of $50,000 were furnished to
various business enterprises located in the State of New
York, each of which enterprises annually produced goods
or performed services valued in excess of $50,000, which
products are shipped directly or which services are per-
formed out of the State where said enterprises are located,
or which business enterprises annually purchase supplies
valued in excess of $50,000, which are delivered at their
places of business directly from other enterprises located
outside the State of New York. In accordance with the
foregoing, which was stipulated late in the hearing,3 I fmd
that Respondent is engaged in commerce or in an enterprise
affecting commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Local Union No. 455, International Association of
Bridge, Structural and Ornamental Iron Workers, AFL-
CIO, the Charging Party herein noted, as the Iron Workers,
Local 810, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, the
Party in Interest, herein the Teamsters, are labor organiza-
tions within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
Respondent, in operation since September 1974, is
engaged in the business of structural steel fabrication. This
entails cutting holes into steel beams, girders, and columns,
cutting the steel to size in accordance with blueprints, and
generally doing whatever is required to enable the steel to
be erected in building construction. Respondent's employ-
ees are principally classified as mechanics, who cut the
steel, and laborers. Contracts for the actual erection of steel
when obtained by Respondent are most frequently subcon-
tracted and performed by employees of other employers.
Accordingly, Respondent's employees customarily work
within the shop on Respondent' s premises.
Respondent's principals are Seymour Erney, president,
and Gerald Meisner, secretary-treasurer.
B. The Appropriate Unit and the Iron Workers
Majority Status
Paragraph 8 of the complaint alleges that the following
unit is appropriate for purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All production and maintenance employees employed
by the Respondent at its Brooklyn, New York, place of
business, excluding all office clerical employees, profes-
3 See G.C Exhs. 12(a) and (b).
4 Coh had known Erney for approximately 18 years before beginning his
employment with Respondent
5 It was stipulated at the hearing that the strike by Local 455, Iron
Workers, which affected approximately 160 shops, began on or about July 1,
and continued on or about January 9, 1976, when the greater number of
employees returned to work At the time of the hearing certain businesses
sional employees, guards, watchmen and supervisors, as
defined in Section 2(11) of the Act.
Although denying paragraph 8 in its answer, Respondent
concedes that, on October 14, it-signed a collective-bargain-
ing agreement with the Teamsters whereby it recognized
that union as the "sole and exclusive' collective-bargaining
agent" for a unit including "all employees, exclusive of
office clericals, non-working supervisors, watchmen, guards
and supervisors as defined in the National Labor Relations
Act, as amended," which contract was thereafter applied to
Respondent's production and maintenance or shop em-
ployees. Accordingly, except for the unit placement of three
individuals employed at the time' that the Iron Workers
claimed majority status - Tom McGovern, Dano Coli,
and John Frick - there is no substantive dispute between
the parties as to the composition of the relevant unit. I,
therefore, find that the unit alleged in the complaint and
described above is appropriate for purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
The Iron Workers predicate their majority status on the
support allegedly afforded them by Coli, McGovern, and
Frick who, on September 15, were the only employees.
Respondent argues that such support was invalid since Coli
was a temporary employee and McGovern asp working
foreman was a supervisor within the meaning of Section
2(11) of the Act and, in any event, had declined to sign an
authorization card for the Iron Workers. Respondent
further contends that, although Frick had signed an
authorization card for the Iron Workers, he at the time did
not know what he was signing and thereafter had sought to
retrieve his card from the Iron Workers.
Dano Coli
The record reveals that Coli,4 a member in good standing
of the' Iron Workers since 1949, began to work for
Respondent in mid-July.
Before this, Coli had been employed by the Brightman
Iron Works in Springfield Gardens, New York. However,
Brightman had been affected by an industrywide strike
called by the Iron Workers,5 temporarily shutting down
that company's operations. Although Coli had left his tools
at Brightman when the strike began,6 he reiterated during
his testimony that at no time during his employment by
Respondent from mid-July to about October 3, when he
was laid off for economic reasons, did he ever converse with
Erney or Meisner, Respondent's management, with regard
to how long he would continue to work for Respondent.
The record is clear that, although Coli performed-the same
welder-mechanic services for Respondent as he had for
.Brightman, Respondent -paid him approximately $40 a
week less than he had earned at Brightman's, based on a 40-
hour week, with no fringe benefits.
On the morning of September 15, Anthony Schifano,
Iron Workers vice president and employee of, the Union's
were still affected by the strike . It was against the background of this strike
that the events herein occurred.
6 Although more than 5 months had elapsed from the time Coh was laid
off by Respondent until the time of the hearing , Coli had not been recalled to
work by Brightman and had not collected his tools from Bnghtman's
premises.
EMCO STEEL INC.
apprenticeship fund, approached Coil and John Frick,
apprentice, in the yard of Respondent's premises. Schifano
greeted Coli, whom he had known through Cola's long
membership in the Iron Workers, and asked who else was
employed by Respondent. Coil told him of Meisner and
Thomas McGovern, both of whom were then Iron Workers
members . Schifano also was informed that Erney, Meisner,
and McGovern were away and that only Coli and Frick
were on the premises . Coli introduced Schifano to Frick
who, in answer to Schifano's inquiry, stated that he was not
a member of the Iron Workers Union. Schifano spoke
about the benefits of membership and gave blank authori-
zation cards to the two men. Coli signed his card immedi-
ately, but did not date his card or fill in any of the other
blanks.7
Respondent's president, Erney, testified that at the
suggestion of his foreman, McGovern, he interviewed Coli
for a position with Respondent. Erney related that during
that interview, in July, Coli had asked Erney if he knew that
Coli was then on strike. Erney replied that he did. Coli had
specified that he was working for Brightman Iron Works
and that they could call him back at any time once the
strike was over. Erney told him that that was okay as
Respondent only had a small amount of work for him and
could put him to work on a temporary basis. According to
Erney, Coh then agreed to work for Respondent on a
temporary basis, agreeing to a pay rate substantially below
what he had received at Brightman's. No fringe benefits
were included. At Coli's request, Erney also agreed to lend
Coli the tools he used during his employment with
Respondent, since as noted, Coli's tools had remained on
Bnghtman 's premises . Cola's subsequent departure from
Respondent at the time of his layoff on or about October 3
was amicable.
Erney's testimony that Coli had not intended to remain
permanently with Respondent was corroborated by
McGovern and Frick, both of whom related that Coli had
told them of his intention to return to Brightman Iron
Works at the conclusion of the stnke.8
The General Counsel, who, contrary to the Respondent,
contests McGovern's supervisory status, contends that any
communication between Coli and McGovern would not
under the law of agency be notice to Respondent. However,
the General Counsel's more basic position is that Coil was
not a temporary employee of Respondent on September 15
when he signed the card as his tenure with Respondent was
not of definite duration.
In his brief, the General Counsel cited M. J. Pirolli &
Sons, Inc.,9 and E. H. Sargent and Co., a Corporation,10
wherein are set forth the relevant tests as to whether an
employee should be considered "temporary" and therefore
7 Schifano , too, denied having dated Colas card, which was received in
evidence with the date , September 15, written on it in the appropriate blank.
However, Schifano did fill in other miscellaneous blanks on the card,
including the name of the employer , and Coli's job classification in the
appropriate blanks on Coli 's card. He also wrote Cob 's address on the back
of the card after Cob had signed it. Schifano then placed it in his pocket
together with the signed card received from Frick.
8 McGovern testified that Cob had told him of his intent to return to
Brightman 's when Coli first applied for employment with Respondent. Frick
stated that Coli had told him of his intent during Cob's first day of
employment with Respondent.
8 194 NLRB 24I, 250 (1972).
991
excluded from the unit. In Sargent, a student was hired in
August and quit his employment during the following
February. In his employment interview, the student had
advised the company that "he wanted a job in order to earn
enough money to return to school, and that he had every
hope of starting school again at the second semester around
February 1...." The Board concluded that, "although it
is true that [the student] did not intend to remain
permanently with the Respondent, it does not appear that
his arrangement with [the Respondent] imposed any
definite terminal date upon his employment. Neither in
August nor in October, when he authorized the Union as
his bargaining agent, could his expressed `hope' to return to
school in February be equated to any certainty that he
would accumulate sufficient funds to accomplish his
desire.""
In M. J. Pirolli & Sons, supra, which followed the
rationale of Sargent, the Board included within the unit an
employee who had advised the employer when he was hired
that he was trying to become a member of the state police
force and that he only expected to work for that employer
until he got a job with the state police, and also included
another employee who, at the time he began to work for
that employer, told the hiring official that he would
"probably just work until spring and he agreed to that."
This was done although the employer in M. J. Pirolli had
contended that both individuals should be excluded from
the unit as temporary employees. It was found that, in each
instance, the included employees had imposed no definite
terminal dates upon their employment. Accordingly, Coli,
at the time he signed an authorization card for the Iron
Workers, was not a temporary employee as his employ-
ment , for the duration of the strike, was of uncertain
duration. Coh had not been hired for a set term or to
perform a specific project or series of tasks for Respondent.
There were also inherent uncertainties with regard to Coli's
chances for future employment with the Brightman Iron
Works, including the date when the strike would end and,
of course, the time, if ever, when he might be recalled to
work there.12 Coli's decision to leave his tools at Bright-
man's under the circumstances herein reflected no more
than an intent to eventually return to that company's
employ at some unspecified future time. Inasmuch as the
absence of these tools under his arrangement with Erney
did not prevent Coli from performing such services as
Respondent may have required, that situation in no way
made more definite his terminal employment date with
Respondent.
Accordingly, I find that on September 15, when Coli
signed the authorization card 13 for the Iron Workers, to the
10 99 NLRB 1318,1320 (1952).
ii Id at 1320.
12 As matters subsequently developed, the Iron Workers strike against the
industry did not wind down until approximately 4 months after Cob, at
Schifano's request , had signed his card. In addition, at the time of the
hearing , approximately 2 months after the strike at Bnghtman 's had ended,
Cob had still not been recalled.
13 1 do not find significance in any question that may exist as to whether
Cob, in fact, had dated his authorization card when signing it, as the Board
customarily requires. Cob, long a member of the Iron Workers, had merely
reaffirmed his support for that Union. See Harris-Woodson Co, Inc, 77
NLRB 819 , 835, fn. 15 (1948); Ben Ginsburg, Inc d/b/a Brunswick Meat
(Continued)
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time of his layoff in early October, he was a, member of the
unit found appropriate herein.
John Frick
. John Frick was employed as an apprentice by Respon-
dent from mid-summer 1975 until around the beginning of
February 1976, when he was laid off for economic reasons.
On September 15, under circumstances described above,
when Coli signed an authorization card on behalf of the
Iron Workers, so did Frick."However, Frick explained that
at that time he had told Schifano that he was not interested
in that Union, he had not read the authorization card
before signing it, and had merely expected to receive union
literature.14 ,
Frick testified that thereafter on or about October 7 he
encountered Schifano on Respondent's premises and had
told Schifano that he would like to get his card back from
the Iron Workers because he did not want to be a member.
Frick explained that his brother-in-law was going into
business for himself and Frick did not know whether he
would stay with Respondent. Schifano agreed to return,the
card, but never did.
About 1 Week later, on October 14, Frick went to Erney's
office and asked to whom he would have to write in order to
get his card back from the Iron Workers. Frick related that
later, while in the shop, he wrote the following letter to the
Iron Workers, dated October 14:
This is to confirm our conversation of last week telling
you I have no desire to be a member of Local 455 and I
would like to have the card I signed returned to me.
Thank You
Mr. John Frick
Frick did not receive a response to his letter.15
Schifano, contrary to Frick, stated that, before Frick had
signed the card, he had told him its purpose. Frick had
further cooperated that day by writing his" name and
address on the back of the card. Schifano did not testify
with respect to Frick's subsequent efforts of October 7 and
14 to recover his authorization card.
From the record as a whole, I credit Schifano's account
that on September 15, at the time of signing, Frick knew
that he was signing an authorization card for the Iron
Workers:16 Frick had testified that, during their employ-
Packers, Brunswick Tallow Co, 164 NLRB 887, fn. 1(1967), where the Board,
in determining majority status , considered existing membership in the union
to lieu of signed authorization cards.
14 Frick, however, stated that, at Schifano 's request, he also had written
his name and address on the back of the card.
15 Frick could not explain how a photocopy of his October 14 letter to the
Iron Workers could be produced by Respondent as evidence in this
proceeding.
16 The Iron Workers authorization cards signed by Coh and Frick
provided, inter alia, that the subscribing employees:
Hereby authorize and designate Shopmen 's Local Union No. 455 of the
International Association of Bridge, Structural and Ornamental Iron
Workers (affiliated with the AFL) to act as my sole and exclusive agent
and representative for all purposes of collective bargaining, whether
under the operation of the National Labor Relations Act, or otherwise.
17 As will be discussed below in connection with the Teamsters orgamza-
ment with the Respondent, he and Coli had been good
friends, that he was present and had participated in the
September 15 conversation between Coli and Schifano. It
therefore is not reasonable to infer that Frick did not know
what Coli was doing when he signed the authorization card
in Frick's presence. Moreover, it apparently is not Frick's
practice to sign documents he has not yet read as he,
himself, testified that soon thereafter he had read the entire
proposed collective-bargaining agreement between Re-
spondent and the Teamsters before signing that contract in
ratification. It is further noted that, by the time of the
hearing, Frick had become obviously hostile toward the
Iron Workers. From the foregoing, it would appear to be
most improbable that Frick, at the time he signed the Iron
Workers authorization card, did not know what he was
doing, or that he would have provided his address on the
back of that card to a total stranger without first reading the
document.
While it is clear that, from October 7, Frick actually did
begin to seek the return of his Iron Workers card by
unwritten and written request, I find that on September 15
and thereafter Frick had indeed designated the Iron
Workers to act as his collective-bargaining representative,'?
Thomas McGovern
Thomas McGovern was hired by Respondent as working
foreman in April. Serving also as a mechanic and finisher,
with 30 years' experience in the industry, he was the most
highly skilled of Respondent's shop employees. For many
years prior to the hearing and at all times material herein,
McGovern was a member in good standing of the Iron
Workers and was personally acquainted with Schifano.
Accordingly, although he was not on Respondent's
premises when Schifano obtained signed authorization
cards from Coli and Frick, McGovern did accept Schifa-
no's invitation on September 15 to join him that evening at
a bar for a couple of drinks. While they were together
McGovern refused Schifano's request that he sign an Iron
Workers' authorization card, explaining that he was more
than satisfied with the salary he was making, was happy
working, for Respondent, and did, not want to spoil it.
McGovern noted that he-was still a member of the Iron
Workers Union and did not see any reason to sign a card."'
tional drive, in agreement with the General Counsel, I find that Frick's
efforts to retrieve his card from the Iron Workers coincided with his
Respondent-assisted support for the Teamsters and accordingly, will be
discounted. See Quality Markets, Inc., 160 NLRB 44, 45-46 (1966). As the
card signed by Frick for the Teamsters will be found, infra, to be tainted, the
dual card rule recently reiterated in Crest Containers Corporation, 223 NLRB
739 (1976), does not appear to be applicable. Under this rule, where an
employee signs an authorization card for each of two unions, the card of
neither union will be regarded as a valid designation that may be counted
toward majority as it is not possible to tell from the cards which of the unions
the employee has selected as an exclusive bargaining agent . However, a
tainted card signed by Frick on behalf of the Teamsters at a time when no
question concerning representation existed will not suffice to revoke the
efficiency of Frick's earlier card on behalf of the Iron Workers.
15 McGovern and Schufano gave substantially the same accounts of the
September 15 meeting.
EMCO STEEL INC.
The General Counsel, relying upon Harris- Woodson Co.,
Inc.,19 and Brunswick Meat Packers, 20 argues that, inas-
much as McGovern had been a member in good standing
with the Iron Workers on September 15, his membership
constituted stronger evidence of his support for that Union
than a mere signature on an authorization card and
therefore McGovern could be included as a part of the Iron
Workers majority although he had not signed a card.
Respondent argues, however, that McGovern, at all times
material herein, was outside of the unit as a supervisor
within the meaning of Section 2(11) of the Act, and that, in
any event, under the circumstances described above, he
could not be found to have been a supporter of the Iron
Workers, while in Respondent's employ.
In seeking to establish McGovern's status as a supervisor,
Erney testified that McGovern, from the time of his hire in
April, had served as working foreman, in charge of work in
the shop.
At the time McGovern was hired, he was given the keys
to open and close the plant each day, and told he would
have the right to hire, fire, and discipline employees, and to
assign work. In this connection, it is contended that
McGovern successfully recommended the hire of Coli.
However, prior to his retention, Coli was also independent-
ly interviewed by Erney.
Erney also testified that McGovern was responsible for
field erection work on which occasions he would direct
Respondent's employees in the placement of steel on
various jobsites. McGovern was compensated at the highest
hourly rate.
Cross-examination revealed, however, that in September
the only persons employed in the shop besides McGovern
were Coli and Frick. Coli was an experienced welder and
Frick was but an apprentice. In this sense the practical
discretion available to McGovern in making work assign-
ments was very limited. Obviously, the jobs requiring skill
would necessarily go to Coli and the easier tasks and those
which required strength to the younger Frick. In addition,
Meisner, who possesses skills comparable to McGovern's
was almost always on the premises during working hours.
Were McGovern to be found to be a supervisor, the ratio of
supervisory personnel to employees would be inordinately
high. In addition, the record is clear that McGovern did not
independently decide to hire or lay off Frick, Coli, or any
other shop employee and has never exercised any like
authority, such decisions having been made wholly without
him. Virtually all field construction work for which Re-
spondent had contracted was, in turn, subcontracted to
other concerns which used their own employees to do the
work. Therefore, any responsibility afforded McGovern
with respect to field construction work, too, was decidedly
limited . Finally, it is noted as to McGovern's status that
Respondent, contrary to its own contentions, already had
agreed to include him in the unit covered by the Teamsters
contract by the time of the hearing. Accordingly, McGov-
em's dues are regularly checked off in accordance with the
checkoff provision of the Teamsters agreement and his
19 77 NLRB 819, 835, fn 15
20 164NLRB887,fn 1
21 It is noted that , on the last day of the hearing , McGovern was the only
remaining employee within the above-described unit
993
terms and conditions of employment and benefits conform
to those set forth in that contract.
For the foregoing reasons, noting that McGovern's
authority to assign work is at most routine in nature; that
his one recommendation that an employee be hired was
followed only after Respondent's president had indepen-
dently interviewed that applicant; that a high ratio of
supervisory personnel to employees would exist were
McGovern found to be a supervisor; and the fact that
McGovern has already been included within the unit
covered by the collective-bargaining agreement between
Respondent and the Teamsters, I found that McGovern is
not a supervisor within the meaning of Section 2(11) of the
Act and is properly a member of the unit found appropriate
herein.21
Although it has been found that McGovern is not a
supervisor within the meaning of the Act, there is merit to
Respondent's position that McGovern's longstanding
membership in the Iron Workers should not, under the
circumstances herein, be considered in determining wheth-
er the Iron Workers enjoyed majority support. Although in
Harris-Woodson Co., Inc., supra and Brunswick Meat
Packers, supra cited by the General Counsel, the Board, in
the absence of signed authorization cards, accepted the
existing union membership of certain employees in the unit
as evidence that they had designated the union to be their
bargaining agent ,22 in those cases, unlike the instant matter,
there had been no subsequent expression of sentiment
voiced by the relevant employees with respect to represen-
tation by their unions at their current places of employ-
ment. In Harris-Woodson, Co., Inc., supra, Brunswick Meat
Packers, supra, and other cases that have herein been
considered, reliance was placed on a presumption that
employees who have retained their membership in a given
union would wish that union to continue to represent them.
However, in those cases, the question of whether the
employees were willing to sign new authorization cards
never arose and the presumption was never rebutted. Here,
however, although McGovern had retained his union
membership, he had refused Schifano's specific request that
he sign an authorization card for the Iron Workers.
Although McGovern did not abandon his Iron Workers
membership, he did not seek to extend its representative
status to himself or to others in Respondent's employ.
This refusal, in my view, is sufficient to rebut any
presumption which might have arisen from McGovern's
membership in the Iron Workers. An individual may have
reason to remain in a given union without desiring it as an
immediate bargaining representative. As the record reveals,
the Iron Workers represent employees in many of the shops
engaged in the industry in which McGovern is employed
and it may be that in the future McGovern might seek to
again work in an Iron Workers shop. In addition, the record
also reflects certain other benefits derivable from continu-
ing membership in the Iron Workers. The Iron Workers
collective-bargaining agreement with various employees in
the industry, which served as a basis for the alleged
22 Also see William A Magellan, Joseph S. Martinac, Frederick T.
Borovich, G. E. Skewis, Eugene Dahout, and J. M. Martmac Shipbuilding
Corporation, d/b/a M. V Eastern Pacific, 163 NLRB 798, 803-804 (1967),
United States Gypsum Company, 90 NLRB 964 (1950).
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
collective-bargaining negotiations between the Iron Work-
ers and Respondent, provides for a series. of group
insurance and benefit plans covering members, their wives
and young children. Although the record does not disclose
to what extent, if any, McGovern has continuing rights
under ' such plans, the point, is - that a desire to. retain
membership_ in a given; union need not necessarily be
synonymous with a desire for immediate continued -repre-
sentation by that- Union in a new place of employment.
Accordingly, in .view of McGovern's refusal to sign an Iron
Workers authorization card on September 15, when re-
quested to do by Schifano; for the reasons given, I find _ that
McGovern, at that time, did not wish to designate the Iron
Workers to serve as his collective-bargaining representative
and, therefore, do not include McGovern as part of the Iron
Workers majority. in the above-described unit. However, as
I have found that Coli and Frick did elect to support the
Iron Workers on September 15, and that, Coil, during his
employment, was properly a member of the unit,, it is
concluded that, as of September 15, , the Iron Workers
enjoyed the majority support of two of the three employees
in the unit found herein.
C. The Alleged Refusal To Bargain
1. The, recognition of and negotiating sessions
with the Iron Workers
Schifano testified that after he- had obtained the signed
authorization ' cards from Coli- and Frick, as described
above; his- Union sent a_ telegram, dated September P,
advising Respondent that the Iron Workers represented an
overwhelming majority Tofits production and maintenance
employees and requesting a meeting for the purpose of
discussing the terms and conditions of employment.
Later that same week , after the telegram had been sent,
Schifano , accompanied by Frank Hernandez, Iron Workers
executive board member, visited Respondent's premises
where they met with Erney and Meisner .23 At the outset,
Meisner, a member of the Iron Workers since 1952, had
asked Schifano how he could withdraw from the Union. In
response , Schifano telephoned his office and relayed the
inquiry to John Zito , Iron Workers secretary -treasurer, who
in turn outlined the relevant procedures to Meisner.24
During that meeting, Erney admitted having received the
Iron Workers September 17 telegram to Respondent but
declined Schifano's request that he sign a recognition
agreement on behalf of the Iron Workers, explaining that,
although he was aware that authorization cards had been
signed by his employees, he required time to consult with
his attorney . When Schifano requested another meeting,
Erney again asked for an opportunity to speak to his lawyer
after which he would communicate with Schifano. Erney
23 Schifano,had known Erney.and Meisner since at least 1971, when
Schifano had briefly worked for GLG Iron Works where Erney and Meisner
were also employed.
24 This conversation was confirmed by Zito who testified that Meisner,
after following the procedures conveyed by Zito during their conversation,
had received a withdrawal card from the Iron Workers, dated October 31.
25 Although Meisner was present throughout, Erney conducted the
principal review and discussion on behalf of the Employer
26 Schifano testified that, during their first bargaining session, Respon-
dent agreed to an additional holiday besides those set forth in the recently
expressed concern that increased labor costs involved in
working with unionized labor had not been taken into
account when Respondent had-bid on a firehouse job- on
which it was then working. An immediate requirement by
the Iron Workers that Respondent pay those increased
costs, including contributions to the Iron Workers several
funds, would so increase the Respondent's overhead-on the
job as to cause it to lose money. Schhifano replied that
payments, into the Union's funds and the possibility- of
deferring them were matters for negotiation. Erney wanted
to know- what the contract would cost the Company. As
Schifano departed, after receiving a tour of the premises, he
requested an early meeting, observing that both Erney and
Meisner had been involved with the Iron Workers at GLG
Iron Works and the Union, was not new to them.
Schifano testified that on September 23, at or about 10:30
a.m.,-he and Hernandez returned to Respondent's premises
for a second meeting, bringing with him, at Erney's request,
duplicate copies of three documents, which served as the
basis for negotiations. These documents included the
standard independent contract between the Iron Workers
and the, industry, which, had expired on June 30, a set of
union proposals for a new contract sent to the industry in
May, anda stipulation between the Iron Workers and some
companies that had become effective after July 1. This
stipulation extended the standard independent contract
from July 1;=1975, to June 30, 1976, with certain specific
modifications.
Schifano testified that, on receiving his copy of the
foregoing documents, Erney again stated that his concerns
were economic in nature. In, accordance with Schifano's
suggestion that the . documents provided be reviewed
section by section to determine areas of agreement and
disagreement, Erney, who had not previously, seen the
documents, reviewed themwith Schifano and Hernandez,
discussing each proposal asreached.25
During that meeting, the parties reached agreement with
respect to provisions relating to the appropriate bargaining
unit, a provision requiring approval of the contract by the
International Union, union recognition, union security and
checkoff of dues, overtime pay, the number ofpaid holidays
per year,26 one of the four subprovisions relating to
reporting pay and/or allowed pay, a no-strike and no-
lockout clause, the terms of plant visitation by union
representatives, leaves of absence, nondiscrimination claus-
es, union use of a' bulletin board on Respondent's premises,
provisions relating to safety and health, a prohibition on the
payment by Respondent of piece, bonus, or contract work
done in the shop,27 a provision prohibiting Respondent
from utilizing its shop employees in erection, field fabrica-
tion, or construction work, paydays,28 a saving clause
whereby the parties agreed to renegotiate any provision of
expired collective-bargaining agreement . However, the parties could not
agree as to the specific dates on which the extra holiday should be observed.
27 The Union desired this provision to insure that all work done in the
shop shall be paid at not less than the hourly wage rate specified in the
contract.
28 This provision included a requirement that Respondent, for the first
time, maintain a timeclock. Erney agreed to this proposal after Schifano had
assured him that it was beneficial for Respondent to have such proper
records. The Union required this provision as contributions to its, various
EMCO STEEL INC.
the contract subsequently found to be unlawful, job
classifications, and rest periods.
During the September 23 meeting, the parties did not
agree to the preamble,29 hours of work, the date on which
the extra holiday agreed to, as noted above, would be
observed, certain other aspects of reporting and/or allowed
pay, grievance and arbitration,30 semonty,31 Respondent's
participation in the industrywide vacation fund,32 subcon-
tracting of work, and wage rates.
As the meeting ended, at or about 3:30 p.m., Schifano
expressed his satisfaction that the progress had exceeded his
expectations. He requested that another meeting take place
as soon as possible. Erney announced that, in the interim,
he would consult with his attorney with respect to clauses
that he did not understand and which had been left open
and asked Schifano to call him again to establish a new
meeting day.
The next meeting, scheduled originally for September 29,
was reset at Respondent's request to the morning of
October 6.
The October 6 meeting, too, was attended by Erney and
Meisner for Respondent and by Schifano and Hernandez
for the Iron Workers. At the outset, Erney again asked what
the economic package was going to cost. Schifano suggest-
ed that noneconomic matters be disposed of before
approaching the economic provisions. Schifano then re-
quested and received information as to Respondent's
current wage scales and its position as to the various
employee classifications. The parties continued their review
of the previously considered documents.33
At the October 6 bargaining session Respondent, for the
first time, also agreed to the Iron Workers proposals
concerning the preamble, an hourly wage rate for McGov-
ern but not for other employees, and that Meisner, as a
supervisor, would no longer perform unit-type work. The
Iron Workers representatives indicated a willingness to
enter into a 3-year contract but there was no agreement on
this.
Items that were not resolved during this meeting included
hours of work, grievance and arbitration,34 certain report-
ing and allowance pay provisions, participation in the
industry vacation fund, the subcontracting of work, the
wage rate to be paid the mechanic, and the apprentice and
employer contributions to the various funds set forth in the
Iron Workers contract.35
The October 6 meeting ended with an understanding that
Schifano would put together a series of prorated figures
pursuant to which Respondent could gradually, over a
funds were based upon the hours of work done in the shop and records were
needed for such computations
29 Erney did not understand the preamble at the time and wanted to read
it again
3° Although Erney, according to Schifano, had agreed to all of the
proposed language of the grievance and arbitration provisions , he refused to
include such a provision in any contract until he knew who the shop steward
was going to be, citing past expenences with irresponsible stewards. Schtfano
declined to allow Respondent to have a voice in this matter Accordingly,
there was no agreement with respect to that provision
31 Although Respondent agreed to seven subparagraphs of the seniority
proposal , including a clause relating to promotion , Respondent requested
and received time to further read three additional subparagraphs before
agreeing to the entire provision
32 Respondent agreed to grant paid vacation time on a sliding scale on a
schedule based upon years ofservice as proposed by the Union, but declined
995
period of 3 years, defer its contributions to the various
funds. Although no new date was set for the next meeting,
Schifano was to call Respondent as soon as he had
computed the schedule and figures for the prorated
deferred payments.
Schifano testified that on or about October 8, 2 days after
the above meeting , while visiting the plant to deliver the
computed figures he learned from McGovern that Respon-
dent had laid off Coli. Schifano thereafter mentioned Coli
to Meisner on two occasions. However, all that Meisner
would tell him was that Erney was not there.36
On October 14, Schifano telephoned Erney and informed
him that he was ready with the package, asking that a
meeting date be set. Erney replied that he no longer
believed that Schifano represented the men. Schifano asked
how he could say that after they had been through so much.
Emey answered that he had retained counsel and that that
was all he was going to say, repeating his disbelief that
Schifano still represented the men. There was no further
conversation.
At the hearing, Erney was called as a witness by both the
General Counsel and Respondent during their respective
cases-in-chief. When called by the General Counsel, Emey
testified that, in mid-September, he had received a telegram
from the Iron Workers demanding recognition. He also
averred that a few days later, when Schifano visited his
office, Erney had told Schifano that he had received his
telegram but had no time to talk to him. Schifano had
agreed to return at another time. Erney related that
Schifano had returned twice thereafter but that essentially
the same conversations had ensued, Erney having told
Schifano on each occasion that he had had no time to talk
with him and requesting that he come back. Each time
Schifano agreed.
Later in the proceeding, as Respondent's witness, Emey
expanded his testimony as to the extent of his dealing with
Schifano, testifying that on or about September 23 Schifano
had visited Emey's office and asked whether he had
received a telegram, to which Erney had replied in the
affirmative. However, when Schifano asked Erney to sign
up with the Iron Workers, Erney had replied that Schifano
did not have the majority support of the employees in his
shop. Erney told Schifano that he knew this because the day
after Schifano had been to the plant (September 15),
McGovern had told Erney that he had declined Schifano's
request to sign an authorization card for the Iron Workers.
Emey related that he also had told Schifano that John
Frick also had come to him on September 16 with the
to contribute to the Local 455 industry vacation fund, from which employees
in the industry generally received their vacation money, as Respondent
preferred to directly pay its own employees their vacation pay Accordingly,
the provisions of the vacation proposal that related to the industry vacation
fund were left open
33 Dunng the bargaining sessions of September 23 and October 6, both
Schifano and Erney took notes However , Respondent's representatives
never initialed their approval of any adopted clauses on any of the
documents before them
34 Erney, opposed by Schifano, continued to withhold his consent to the
inclusion of grievance and arbitration provisions in the contract until he
knew who the shop steward would be
35 These funds covered pension, welfare , vacation, apprenticeship and
training, annuities, and sick leave
38 The complaint does not allege that Coli's layoff in early October was
violative of the Act.
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
information that Schifano had been in the-plant and that he
(Frick) had given his name and address to Schifano so that
the Iron Workers might send him information concerning
that Union, but that he did not sign an authorization card.
Erney did not know whether Coli had signed a card on
September 15, as they had not discussed the matter. As
McGovern, Frick, and Coli were the only three persons
employed in the shop at that time, it was Erney's position
that the Iron Workers had never obtained majority status.
The visit from Schifano consumed approximately 10
minutes, as Erney and Meisner were so busy they did not
have time to talk to him. , - -
On, or about September. 30, Schifano returned to the shop
with a' manila envelope from which he drew-a document
identified as the recognition agreement. Inside the envelope
was a copy of the Iron Workers proposed collective-'
bargaining agreement, which he threw on Erney's desk,
telling him to read and sign it., Erney responded by again
telling, Schifano that he did not represent the men in the
shop. The two men then engaged in general conversation
and even had a cup of coffee together. During this visit,
Meisner ran in and out of the office as the Company was
busy at the time. After about a half hour, the conversation
ended because of the press of business, with Schifano telling
Erney that he would get in touch with him at some other
time.
Erney flatly denies that Respondent had ever recognized
or negotiated for a new collective-bargaining agreement
with the Iron Workers, or made notes of discussions with
Schifano, or that he had engaged in other activities
attributed to him by Schifano during alleged bargaining
sesslonS.37
2. Credibility resolutions
After reviewing the foregoing, I credit the testimony of
Schifano, that Respondent had recognized the Iron Work-
ers as the bargaining representative of its employees in the
unit found appropriate herein, and that on September 23
and October 6 Respondent had engaged in negotiations
with the Iron Workers for the purpose of arriving at the
terms of first collective-bargaining agreement. In so con-
cluding, it is noted that the testimony of Schifano was
generally consistent and convincingly detailed. Schifano
clearly related in itemized form the areas of contractual
agreement and discord, the surrounding discussions, and
stated concerns. Various collateral aspects of his testimony
were supported by other witnesses. As an example, the Iron
Workers financial secretary, Zito, corroborated that Meis-
ner had asked about a procedure through which he could
37 It is undisputed that Respondent did not sign the recognition
agreement or complete a collective -bargaining agreement with the Iron
Workers.
39 Erney did not refer to Stemberg 's presence at any of the meetings. As it
is not likely that Schifano could otherwise have known Steinberg 's identity,
the reference to Steinberg by Schifano lends additional credibility to
Schifano's testimony.
39 In Erney's initial account, he testified that he had been too busy to
speak to Schifano at all. However, in subsequent testimony, he related that
they had had a substantial conversation lasting over a half hour and that
Schlfano had brought in documents.
90 Specifically, on March 25, 1975, Erney pleaded guilty in the Criminal
Court of the City of New York, County of Kings, to having violated sec.
155.25 of the New York State Penal Code. Sec. 155.25 reads as follows:
withdraw from the Union. So too, McGovern had agreed
with Schifano as to the substance of their September 15
meeting, and Schifano had known the name of Steinberg,
Respondent's landlord, who was present for a portion of the
October 6 meeting.38
Erney, on the other hand, has not been credited. The
description of his meeting with Schifano, to which he
testified when called by the General Counsel, differed
materially from that given when called as a witness by
Respondent,39 although in each case he contended that the
Iron Workers had been denied recognition. Erney's credi-
bility was also -adversely affected by the fact that he had
recently pleaded guilty to a crime involving moral turpi-
tude.40
Accordingly, from the credited evidence it is found that
Respondent recognized the Iron Workers on or about
September 19 and negotiated with that Union on Septem-
ber 23 and October, 6 with respect to the terms of a
collective-bargaining agreement. It is further found that
such recognition was withdrawn by Respondent on or
before, October 14 when, as will -be discussed below,
Respondent executed a collective-bargaining agreement
with the Teamsters, effective from October 14, 1975, to
October 5, 1978, covering employees in the unit found
appropriate herein. This contract contains a union-security
clause conditioning the continued employment of Respon-
dent's unit employees upon their Teamsters membership
after a 30-day grace period, and a provision for the checkoff
of union dues. -The parties agree and I find that the contract
between Respondent and the Teamsters has been enforced
in all of its terms including the foregoing union-security
and checkoff provisions from October 14, when executed,
to date.41
3. Analysis and findings
From the credited evidence it has been found above that,
on about September 19, Respondent voluntarily recognized
and agreed to bargain with the Iron Workers .42 It was also
found that, on September 23 and October 6, Respondent
and the Iron Workers met and entered into extensive
negotiations concerning a collective -bargaining agreement,
at which times virtually all of the proposals were considered
and many were accepted in agreement . Before a contract
could be finalized, Respondent unilaterally withdrew
recognition from the Iron Workers and executed a, collec-
tive-bargaining agreement with the Teamsters under cir-
cumstances which will be more fully discussed , infra.
On these facts , I find that Respondent's conduct in
withdrawing recognition from the Iron Workers , at a time
Petty Larceny
A person is guilty of petty larceny when he steals property. Petty
larceny is a Class A misdemeanor.
41 The record reveals that , since the execution of the collective-bargaining
agreement with the Teamsters , Respondent has employed other employees in
addition to McGovern and Frick in the relevant unit . Presumably, such
employees during their tenure with Respondent were made subject to the
union-security and checkoff provisions of that agreement . As noted,
however, Cob had been laid off before Respondent signed the collective-
bargaining agreement with the Teamsters.
42 As found above, the Iron Workers as of September 15 had the actual
support of two of the three members of the relevant unit.
EMCO STEEL INC. 997
when that Union was the lawfully recognized representative
and before the bargaining relationship, to which it had
agreed, had a reasonable time to function, violated Section
8(a)(5) and (1) of the Act 43
- In addition to the unlawful withdrawal of recognition
from the Iron Workers, found above to be meritorious, the
complaint also alleges that Respondent had further violated
Section 8(a)(5) of the Act by executing, maintaining, and
enforcing the collective-bargaining agreement with the
Teamsters.44 However, as the principal refusal to bargain
alleged in this matter was Respondent's conduct withdraw-
ing recognition from the Iron Workers, and as the remedies
herein will be the same, no useful purpose would be served
by a determination as to whether the execution of the
Teamsters collective-bargaining agreement constituted a
separate violation of Section 8(a)(5) of the Act 45
D. The Alleged Unlawful Assistance to the
Teamsters
1. The Teamsters organizational campaign
Respondent's president, Erney, testified that he had
signed the collective-bargaining agreement with the Team-
sters on October 14 only after that Union's delegate, Steve
Silverman, had shown him authorization cards signed by a
majority of Respondent's shop employees.46
However, apprentice John Frick, who had signed a
Teamsters authorization card at the same time as McGov-
ern, testified that, while the authorization cards were being
signed, Respondent's employees, including Frick and
McGovern, were being called in to Erney's office by the
Teamsters representatives. He related, that, at the time he
and McGovern signed their Teamsters authorization cards,
Erney and Meisner were in the same room of the office at a
distance of about 10 feet 47 Frick could not recall the date
on which' he had signed his Teamsters authorization card,
but related that it took place 1 or 2 weeks after he had
personally asked Schifano for the return of his Iron
Workers authorization card and may have occurred, also,
after he wrote the October 14 letter with the same request.
McGovern testified that he had signed his Teamsters
authorization card approximately 1 month after his Sep-
tember 15 refusal to sign an Iron Workers card. McGov-
ern's card for the Teamsters had been signed after two
organizers, including Steve Silverman, approached him in
Respondent's shop and told him that they had a majority of
the men signed up. He recalled that he and Frick had
accompanied the two Teamsters representatives to Respon-
dent's office where they showed Frick and McGovern
authorization cards that reportedly had been signed by four
of Respondent's employees. The Teamsters officials told
the two employees that these cards constituted a majority
and gave them the right to be the employees' bargaining
representative. McGovern then signed the card.48 Although
43 Clark-Sprague Inc., 181 NLRB 622 (1976); Jem Mfg., Inc., 156 NLRB
643 (1966); T. C. Worthy Wholesale, Inc., 159 NLRB 1700 (1966).
44 See G. C. Exh. I(e), pars. 12 and 20.
45 The execution , maintenance, and enforcement of the collective-bar-
gaining agreement between the Teamsters and Re sp^ndent, alleged in the
complaint as violations of Sec. 8(axl), (2), and (3) of the Act, will be
considered below in the context.
46 At that time, in mid-October, as noted, Respondent employed other
shop employees in addition to Frick and McGovern.
McGovern cannot accurately recall whether he actually
signed the card while he was still in the office or back in the
shop area, he did remember that, while he was in the office
on that occasion with Frick and the Teamsters organizers,
Meisner, too, was present, although he was at the other end
of a large room. He could not recall if Erney was also
present at the time.
2. The execution of the collective-bargaining
agreement by Respondent and Teamsters
Erney, who denied having seen Teamsters cards being
signed, testified that on or about October 8 Silverman had
come to his office, introduced himself as a representative of
Local $10, Teamsters, and informed Erney that he repre-
sented a majority of Respondent's shop employees. In
response to Erney's request for proof, Silverman listed the
men who were working for Respondent at the time and
produced five authorization cards, announcing that these
were the men who had signed cards for the Teamsters.
Erney then compared the signatures on the, authorization
cards with those in Respondent's payroll records.
After this card check, Silverman asked whether the
Teamsters would be granted recognition and whether he
could speak to the employees. Erney replied that Meisner
would be back the next day, asserting a need to speak with
his partner.
On the following day, Silverman delivered a copy of the
proposed contract to Meisner and Erney. After Erney and
Meisner had studied the proposed contract for 2 or 3 days,
consulting with Silverman and others on questioned items,
they indicated their willingness to sign the Teamsters
agreement. Accordingly, on October 14, pursuant to
appointment, Erney and Meisner visited the Teamsters
offices where final questions were asked and answered,
changes initialed, and the agreement was executed.
About 1-1/2 or 2 hours later, Silverman visited the shop
and spoke to Respondent's employees in the absence of
Erney. Silverman thereafter gave Erney a list of the names
of employees who, as a committee, had signed ' the con-
tract 49
3. Analysis and concluding findings
The credited evidence reveals that on or about October
14, after granting voluntary recognition to the Iron Workers
and conducting two negotiating sessions with that Union,
but before the terms of a collective-bargaining agreement
could be fully settled, Respondent signed a contract with
the Teamsters. In advance of executing this agreement,
Respondent had permitted the Teamsters to solicit support
among its employees during working hours, even in
Respondent's office in the presence of members of manage-
ment.
47 At that time, Frick and McGovern were the only two employees in the
office.
48 At all times material herein , including the time of the hearing,
McGovern also continued to be a member in good standing of the Iron
Workers.
49 Neither Messner nor any representative of the Teamsters testified
during this proceeding.
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
- In Newport Division of Wintex Knitting Mill, Inc.,50 it was
noted that:
Under Board law established in 1945 in Midwest
Piping and Supply Co., Inc., _63 NLRB 1060, and
followed for three decades, Novak Logging Company,
119 NLRB 1573 (1958); Swtftand Company, 128 NLRB
732 (1960); Sweater Bee by Banff, Ltd, 197 NLRB 805
(1972); Inter-Island Resorts, LtcL, d/b/a Kona Surf
Hotel, 201 NLRB 139 (1973), it is an unfair labor
practice for an employer to recognize one of two or
more competing unions while a question of representa-
tion is pending before the Board by virtue of the filing
of 4 representation petition with the Board.
Respondent, recognizing that the Board has thus far
adhered to its Midwest Piping doctrine, nevertheless argues
in its brief for a favorable decision, contending that the
Midwest Piping doctrine "should be strictly construed and
sparingly applied, ' citing cases where the Midwest Piping
doctrine has been rejected by certain courts 51
As noted, this is not a straight Midwest Piping case,- for
the violation herein is more strongly grounded than had
there been merely an outstanding question concerning
`representation involving two or more rival unions. In the
instant case, the question concerning representation had
already been resolved in favor of the Iron-Workers when
Respondent first recognized the Teamsters.52
Although, as noted by Respondent in its brief, the
Board's Midwest Piping doctrine has in fact been rejected
by certain courts, it is clear that the Board has continued to
adhere to this doctrine.53 I see nothing in this record that
would warrant a fording for Respondent. Under the
Board's decisions, Respondent clearly had no right to
recognize the Teamsters under the circumstances herein
and, by so doing, it unlawfully encouraged membership in
that Union, thereby rendering it unlawful assistance.
Inasmuch as Respondent could not validly afford recog-
nition to` the Teamsters, it necessarily follows that the
negotiation of a contract with the Teamsters `was also
unlawful and that this contract, void ab initio, should be set
aside. It is also concluded for the foregoing reasons that
Respondent, on October 14, violated Section 8(a)(3) and (1)
of the Act by recognizing and signing a contract containing
a union-security provision with the Teamsters.54
In addition, noting that Frick had signed a tainted card
on behalf of the Teamsters during working hours, in
Respondent's office, in the presence of Respondent's
50 223 NLRB 1293, 1295 (1976). -
51 See Suburban Transit Corp., 203 NLRB 465 (1973), enforcement denied
499 F.2d 78 (CA. 3,19')4), cert. denied 419 U.S.1089 on remand 218 NLRB
1228 (1975), enforcement denied 536 F.2d 1018 (C.A. 3,1970; N.LRB. v.
Swift and Comps y, 294 F 2d 285 (C.A. 3,1961); Playskod Inc, a Division of
Milton Bradley C 195 NLRB 560 (1972), enforcement denied 477
F 2d 66 (C.A. 7,197 3), were among cases cited by the Respondent where the
Midwest Piping doctrine was not enforced . However, in citing cases such as
N.LR.B. v. Hudson Berlind Corp., 494 F.2d 1200, cert. denied 419 U.S. 897
(1974); N.LRB. v. Midtown Service Co., Inc., 425 F.2d 665 (C.A. 2, 1970);
Welch Scientific Co. Inc., v. N.LRB ., 340 F.2d 199 (C.A. 2, 1965) and
NLRB. v. National Container Corp., 211 F.2d 525 (C.A. 2, 1954), the
Respondent also has recognized that, among other courts, the U.S. Court of
Appeals for the Second Circuit in whose geographiclurisdiction the instant
case arose, has approved the application of the Midwest Piping doctrine.
52 See Florida Automatic Sprinkler Contractors Association, etc., 199
NLRB 1151 , 1158 (1972).
principal officials, I must presume further that -Frick's
attempted revocation of his Iron Workers- card did not
proceed on his own initiative, but was a result of Respon-
dent's unlawful concurrent assistance to the Teamsters. For
this reason, no effect has been given to Frick's effort to}
revoke his Iron-Workers authorization card.55 .
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection of the operations of
Respondent described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes `burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I will recommend that it cease and
desist therefrom and take certain affirmative actions
designed to effectuate the policies of the Act.
Having- found that Respondent unlawfully assisted and
supported the Teamsters by recognizing it as a collective-
bargaining representative of its shop employees, and by
extending to the said employees the terms of a collective-
bargaining agreement containing a union-security provi-
sion requiring membership in the Teamsters as a condition
of employment, notwithstanding the fact that Respondent
had but recently granted voluntary lawful recognition to
the Iron Workers, I will recommend that Respondent be
ordered to cease recognizing the Teamsters as the collec-
tive-bargaining representative of its shop employees, to
cease giving effect to the October 14 collective-bargaining
agreement, and to reimburse the said shop employees for all
fees, dues, and other moneys that they-had been required to
pay to the Teamsters, by reason of the enforcement of its
agreement with the Teamsters, dated October 14, together
with interest thereon at the rate of 6 percent per annum, to
be computed in the manner set forth in Seafarers Interna-
tional Union of North America, Great Lakes District, AFL-
CIO. 56
Although, as found above, Respondent has unlawfully
refused to -bargain with the Iron Workers, the appropriate-
ness of the bargaining order requested by the General
Counsel must be considered in the light of the fact that, on
the last day of the hearing, McGovern was the only
53 See, for example, Traub's Market, Inc, 205 NLRB 787, 788, fn. 3
(1973), where the Board ruled as follows: - -
We find inappropriate the Administrative Law Judge's citation of
N.L.RB. v. Swift and Company, 294 F.2d 285 (C.A. 3), because we have
previously noted our respectful disagreement with the general position
on this issue of that and other courts of appeals. Moreover, in Suburban
Transit Corp., 203 NLRB 465, we adopted without change the Decision
of another Administrative Law Judge which set forth in full reasons for
declining in particular to follow the Swift decision.
54 Florida Automatic Sprinkler Contractors Association, supra Suburban
Transit Corp., supra.
55 Quality Markets, Inc., 160 NLRB 44,45-46 (1966).
56 138 NLRB 1142 (1962); Airmatics Systems Division of the Mosler Safe
Company, 209 NLRB 71, 81(1974).
EMCO STEEL INC. 999
remaining employee still employed within the relevant
unit.57 The General Counsel does not allege that any
employee had been terminated or laid off in violation of the
Act.
However, in view of the decision in N.LR.B. v. Crispo
Cake Cone Company, Inc., 58 I find that a bargaining order is
warranted as Respondent has not met its burden of proving
that this was not a temporary reduction but was one of a
permanent nature. The respondent in that case employed
but two employees in the relevant unit at the time of the
hearing, and it had been stipulated that one of these
employees was about to leave the respondent's employ.
However, there, as in the instant case, at the time recogni-
tion was requested three employees had been employed in
the unit, the Employer customarily had operated with more
than one unit employee, and there was no contention that
the unit size had been reduced by unlawful conduct. The
Board, as quoted with approval by the U.S. court of
appeals, held as follows:
Plainly, the burden of proving that this was not a
temporary reduction but was one of a permanent nature
was on the Respondent. If such a reduction was other
than temporary, the Respondent could have, and
should have, presented evidence that the reduction was
permanent. Although Shubert testified at length, he
neither contended nor suggested that the Respondent's
office clerical complement would not immediately or in
the immediate future be restored to its normal three-
employee complement. Under these circumstances, the
possibility that only one office clerical employee might
be at work temporarily, pending new hires, would not
destroy the appropriateness of the unit, because a
temporary decrease in employee complement, even if it
occurs, does not reduce the unit to a single-employee
unit. For these reasons, we find, in agreement with the
General Counsel, that the Respondent violated Section
8(a)(5) and (1) of the Act by failing and refusing to
bargain with the Union as the duly designated collec-
tive-bargaining representative of the office clerical
employees. We also find that the issuance of a bargain-
ing order herein is appropriate as to the office clerical
employee unit employees.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent, Emco Steel Inc., is an employer
engaged in commerce and in operations affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. Local Union No. 455, International Association of
Bridge, Structural and Ornamental Iron Workers, AFLr-
s7 See Luckenbach Steamship Company Inc, 2 NLRB 181, 193-194 (1936),
where the Board first held that a unit of one employee is inappropriate for
purposes of collective bargaining and refused to issue a certification for such
unit See also Parklane Hosiery Co, Inc., 207 NLRB 991 (1973), supplement-
ing 203 NLRB 597, where the Board , upon the motion of the General
Counsel, reconsidered and revoked a bargaining order originally issued as it
was discovered during the compliance stage that , for legitimate economic
reasons, Respondent had reduced the size of the unit to but a single
employee The Board noted that, in the circumstances of that case , it would
not effectuate the policies of the Act to require bargaining
CIO, and Local 810, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America,
are labor organizations within the meaning of Section 2(5)
of the Act.
3. All production and maintenance employees em-
ployed by Respondent at its Brooklyn, New York, place of
business , excluding all office clerical employees, profession-
al employees, guards, watchmen and supervisors as defined
in Section 2(11) of the Act, constitute a unit appropriate for
the purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
4. On September 15, a majority of the employees in the
above-described unit designated the Iron Workers as
bargaining representative to represent them in collective
bargaining with Respondent regarding wages , hours, and
other terms and conditions of employment and, on or
before September 23, the Iron Workers requested and
received recognition from Respondent as the exclusive
collective-bargaining representative of the employees in the
above-described unit.
5. By refusing to bargain with the Iron Workers on
October 14 and thereafter, Respondent violated Section
8(a)(5)and (1) of the Act.
6. By entering into a collective-bargaining contract with
the Teamsters, containing a union-security provision, on
October 14, Respondent has engaged in unfair labor
practices within the meaning of Section 8 (a)(1), (2), and (3)
of the Act.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record in this proceeding and,
pursuant to Section 10(c) of the National Labor Relations
Act, as amended, I hereby recommend the following:
ORDER 59
The Respondent, Emco Steel Inc., Brooklyn, New York,
its officers, agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Recognizing Local 810, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, as the representative of its production and
maintenance employees in the appropriate unit described
below, for the purpose of dealing with it concerning wages,
hours of employment, or other terms and conditions of
employment, unless and until such labor organization shall
have been certified by the Board as the exclusive represen-
tative of such employees. The appropriate unit is:
All production and maintenance employees employed
by the Respondent at its Brooklyn, New York, place of
business, excluding all office clerical employees, profes-
58 464 F.2d 233 (C.A. 8, 1972), enfg 190 NLRB 352 (1971)
59 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec 102 48
of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions , and Order, and all objections thereto shall be deemed
waived for all purposes.
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sional employees , guards , watchmen and supervisors, as
defined in the Act.
(b) Giving effect to the collective-bargaining agreement
with Local 810, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, dated
October 14, 1975, or to any modification, extension,
renewal, or supplement thereto, provided, however, that
nothing contained in this Decision and Order shall require
Respondent to vary or abandon any wages, hours, seniori-
ty, or other substantive feature of its relationship with its
production and maintenance employees established in the
performance of such agreement, or prejudice the assertion
by its employees of any rights they may have thereunder.
(c) Giving effect to any checkoff authorization executed
by its employees in the afore-described unit in favor of
Local 810.
(d) In like or related manner interfering with, restraining,
or coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Upon request, bargain collectively in good faith with
the above-named labor organization as the exclusive
representative of its employees in the above-described unit
with respect to rates of pay, hours of employment, and
other terms and conditions of employment and, if an
understanding is reached, embody such understanding in a
signed agreement.
(b) Withdraw and withhold all recognition from Local
810, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any successor
thereto, as the collective-bargaining representative of any of
its production and maintenance (shop) employees for the
purpose of dealing with it concerning grievances, labor
disputes, rates of pay, hours of employment, or other terms
and conditions of employment, unless and until the Board
shall have certified Local 810, Teamsters, as such represen-
tative.
(c) Reimburse its present and former production and
maintenance employees in the unit described above for all
fees, dues, and other moneys they have been required to
pay to Local 810, Teamsters, as a condition of employment
by reason of Respondent's enforcement of its collective-
bargaining agreement , dated October 14, 1975, whether or
not pursuant to checkoff authorizations executed by the
said employees in favor of that union, together with interest
at 6 percent per annum computed in the manner set forth in
the section of this Decision entitled "The Remedy."
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll and other records necessary to analyze and com-
pute the amount of the reimbursement due under the terms
of this recommended Order.
(e) Post at its plant, located at Brooklyn, New York,
copies of the notice marked "Appendix."80 Copies of said
notice , on forms provided by the Regional Director for
Region 29, after being duly signed by the Respondent, shall
be posted 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 the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(f) Notify the Regional Director for Region 29, in writing,
within 20 days from the date of this Order, what steps have
been taken to comply herewith.
IT IS FURTHER ORDERED that any allegations of the
complaint which have not been sustained be dismissed.
60 In the event the Board 's Order is enforced by a Judgment of a United
States Courts of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall 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
After a hearing in which all sides have presented evidence,
it has been found that we have violated the National Labor
Relations Act in certain respects . To correct and remedy
these violations , we have been directed to take certain
actions and to post this notice.
WE WILL NOT recognize Local 810, International
Brotherhood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America, as the collective-bargaining
representative of our production and maintenance
(shop) employees unless and until the Board shall
certify it as such representative.
WE WII,L NOT require as a condition of employment
that our production and maintenance (shop) employees
become or remain members of Local 810, International
Brotherhood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America.
WE WILL NOT give effect to the collective-bargaining
agreement signed with the above-named labor organi-
zation, dated October 14, 1975, or to any modification,
extension, renewal , or supplement thereto , or to any
checkoff authorizations in favor of the above-named
union . However , nothing herein requires this Company
to vary or abandon any wage, hour, seniority, or other
employee benefits established in the performance of
that agreement, or prejudices the assertion by our
employees of any rights they may have thereunder.
WE WILL, upon request , bargain in good faith with
Local Union No. 455 International Association of
Bridge, Structural and Ornamental Iron Workers,
AFL-CIO, as the exclusive representative of all our
employees in the bargaining unit described below with
respect to rates of pay, hours of employment, and other
terms and conditions of employment and, if an under-
standing is reached , embody such understanding in a
signed agreement . The bargaining unit is:
All production and maintenance employees em-
ployed by Emco Steel , Inc., at our Brooklyn, New
York, place of business, excluding all office
clerical employees, professional employees,
guards, watchmen and supervisors , as defined in
the Act.
EMCO STEEL INC. 1001
WE WILL reimburse each of our present and former WE WILL NOT in any other manner interfere with,
production and maintenance (shop) employees in the restrain , or coerce our employees in the exercise of
above-described unit for all fees, dues , and other rights guaranteed them by the National Labor Rela-
moneys unlawfully extracted from them pursuant to the tions Act.
aforementioned agreement with Local 810, Internation-
al Brotherhood of Teamsters , Chauffeurs , Warehouse- EMCO STEEL INC.
men and Helpers of America.