Kearney & Trecker Corp.

National Labor Relations Board - Board Decisions

Dec 31, 1952

101 N.L.R.B. 1577 (N.L.R.B. 1952)

KEARNEY & TRECKER CORPORATION 1577
groups involved.2 We find, however, in view of their craft skills,
that (1) the pressmen and their helpers, and (2) the linotype oper-
ators, ludlow operator, and type-makeup men, constitute separate
units appropriate for purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.' We shall, accordingly, direct
separate elections among the employees of the Employer in the follow-
ing units, excluding in each case, all other employees, and supervisors
as defined in the Act :
(1) The pressmen and their helpers 4
(2) The linotype operators, ludlow operator, and type- makeup men.
[Text of Direction of Elections omitted from publication in this
volume.]
2 See Everlast Process Printing Co., 98 NLRB 1313, where the Board declined to combine
linotype operators and pressmen in a single unit.
The Employer indicates in its brief that it regards the cutting -machine operators as
craftsmen . There is no evidence in the record , however, that these employees exercise craft
skills.
9 Everlast Process Printing Co., supra.
* One of the cutting -machine operators spends about 6 weeks a year operating a press
in the pressroom . Although he is classified as a night shift supervisor while employed in
the pressroom, we find, upon the entire record, that he is not a supervisor within the meaning
of the Act. We will include him in the pressmen 's unit to the extent that he works as a
pressman . However, we find that he does not have sufficient interest in the conditions of
employment of the pressmen to entitle him to vote in the election.
KEARNEY & TRECKER CORPORATION and LOCAL 1083, INTERNATIONAL
UNION , UNITED AUTOMOBILE , AIRCRAFT & AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA, CIO. Case No. 13-CA-971. December 31,
1952
Decision and Order
On May 8, 1952, Trial Examiner George Bokat issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner also recom-
mended dismissal of the complaint insofar as it alleged that the
Respondent had violated Section 8 (a) (2) of the Act. Thereafter
the General Counsel, the Respondent, and the E. I. U. filed exceptions
to the Intermediate Report, and the General Counsel and the Respond-
ent filed briefs in support of their exceptions. Local 1083 joined in
the exceptions of the General Counsel.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing, and finds that no prejudicial error was committed. The
101 NLRB No. 237.
1578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rulings are hereby affirmed." The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in the
case , and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations, with the additions and modifications set forth
below.
1. We agree with the Trial Examiner's finding that by refusing to
honor the Board's certification of Local 1083, and to bargain with that
organization, the Respondent, on and after November 2, 1951, violated
Section 8 (a) (1) and (5) of the Act. In so finding, we, like the
Trial Examiner, and for the reasons set forth in the Intermediate
Report, reject the Respondent's contention that it was entitled in this
proceeding to relitigate the issues decided by the Board in Case No.
13-RC-1900.2 We also find, as did the Trial Examiner, that the new
evidence adduced in this proceeding as to alleged coercion and fraud
on the part of Local 1083 before the election in the representation
proceeding is insufficient to warrant setting aside the Board's certifi-
cation of Local 1083.
2. The complaint alleged that on and after May 16, 1951, the Re-
spondent illegally recognized, assisted, contributed to the support of,
and interfered with the administration of the E. I. U., in violation
of Section 8 (a) (1) and (2) of the Act. The Trial Examiner rec-
ommended the dismissal of this allegation without passing on the
merits, on the ground that the remedy for the 8 (a) (5) violation is
substantially the same as the remedy proposed by the General Counsel
for the alleged 8 (a) (2) violation. The General Counsel excepts to
this disposition of the 8 (a) (2) issue.
The record shows, as set forth in the Intermediate Report, that
after Local 1083 filed a petition with the Board, and while the repre-
sentation case was still pending, the Respondent, on April 30, 1951,
entered into a supplemental agreement with the E. I. U. This ex-
tended the term of an existing exclusive bargaining contract between
them from 1952 to 1954, and granted "substantial additional benefits."
Thereafter, until November 2, 1951, when it received notice of the
Board's certification of Local 1083, the Respondent continued to rec-
ognize the E. I. U. and to observe and give effect to its contracts with
that organization. Since November 2 it has not recognized or dealt
with either Local 1083 or the E. I. U.
Under the Board's Midwest Piping doctrines it is an unfair labor
practice for an employer to execute a contract with one of two com-
I The Respondent's request for oral argument is hereby denied, because the record, excep-
tions, and briefs, in our opinion, adequately present the issues and positions of the parties.
2 Kearney & Trecker Corporation, 95 NLRB 1125 and 96 NLRB 1214.
a Midwest Piping and Supply Co., Inc., 63 NLRB 1060. See also William Penn Broad-
casting Company, 93 NLRB 1104.
KEARNEY & TRECKER CORPORATION 1579
peting unions while a valid question concerning representation is
pending before the Board .4 Here, however, no charge was filed until
November 16, 1951, more than 6 months after the supplemental con-
tract between the Respondent and the E. I. U. was executed. As the
General Counsel concedes, therefore, the Board is precluded by Section
10 (b) of the Act 5 from finding that the execution of that contract was
an unfair labor practice. He contends, however, that the Respond-
ent's conduct in continuing to observe and give effect to the supple-
mental contract during the 6-month period preceding the filing of the
charges also constituted unlawful assistance to the E. I. U. and was
therefore violative of Section 8 (a) (2) .6 Board Members Murdock
and Styles would be disposed to agree if it were necessary to resolve
this issue. It seems to them that giving effect to a post-petition
agreement providing substantial additional benefits such as wage
increases and recognition of the E. I. U. for an extended term, during
the pendency of a question concerning representation, gives added
benefit and prestige to the E. I. U. which would constitute unlawful
assistance and would interfere with a free election; and the mere fact
that the agreement to do these things was made prior to the 10 (b)
period could not serve as a defense to doing them within the 10 (b)
period. Like the Trial Examiner, however, they believe that an 8 (a)
(2) order is unnecessary in this case as the 8 (a) (5) order will fully
remedy the situation, and they would dismiss the 8 (a) (2) allegation
solely for that reason. Chairman Herzog and Member Peterson, on
the other hand, would dismiss on the ground that any finding that
the observance of the contract was illegal would necessarily have to
be based on the illegality of its execution, and is therefore barred by
Section 10 (b) 7
As the undersigned Board Members unanimously agree on dis-
missal , although for differing reason, we shall dismiss the complaint
insofar as it alleges that the Respondent violated Section 8 (a) (2)
of the Act.
' In this case, such a question was raised by the filing of Local 1083's petition.
5 Section 10 (b) of the Act provides, in part, that "no complaint shall issue based upon
any unfair labor practice occurring more than six months prior to the filing of the charge
with the Board and the service of a copy thereof upon the person against whom such
charge is made."
9 In support of this contention, the General Counsel relies on Paul W. Speer, 98 NLRB 212,
in which the Board found that the continued effectiveness, within the 6-month period
preceding the service of charges, of a contract containing an illegal security provision was
violative of the Act, although Section 10 (b) precluded a finding that the execution of the
contract was unlawful.
4 The Chairman and Member Peterson would distinguish this case from the Speer case,
supra, on the ground that here the terms of the contract were not in themselves unlawful ;
the only defect lay in its execution at a time when a question concerning representation had
arisen . In their opinion, this defect was in effect nullified by the failure of Local 1083 to
file timely charges.
1580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Kearney & Trecker Corpo-
ration, West Allis, Wisconsin, and its officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Local 1083, International
Union, United Automobile, Aircraft & Agricultural Implement
Workers of America, CIO, as the exclusive representative of all pro-
duction and maintenance employees of the Respondent, excluding
officers of the corporation, safety men, students, patternmakers, pat-
ternmaker apprentices, professional employees, guards, and all super-
visors as defined in the Act.
(b) In any manner interfering with the efforts of Local 1083,
International Union, United Automobile, Aircraft & Agricultural
Implement Workers of America, CIO, to bargain collectively with it
in behalf of the employees of the aforesaid appropriate unit.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Local 1083, Interna-
tional Union, United Automobile, Aircraft & Agricultural Implement
Workers of America, CIO, as the exclusive representative of all
employees in the aforesaid appropriate unit with respect to wages,
rates of pay, hours of employment, or other conditions of employment,
and if an understanding is reached, embody such understanding in a
signed agreement.
(b) Post at its plant at West Allis, Wisconsin, copies of the notice
attached to the Intermediate Report and marked "Appendix A." 8
Copies of said notice, to be furnished by the Regional Director for the
Thirteenth Region, shall, after being duly signed by the Respondent's
representative, be posted by the Respondent immediately upon recepit
thereof and maintained by it for sixty (60) consecutive days there-
after in conspicuous places, including all places where notices to em-
ployees 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 Thirteenth Region, in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
8 Said notice is hereby amended by deleting the words "The Recommendations of a Trial
Examiner ," and substituting in lieu thereof the words "A Decision and Order."
In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order ," the words
"Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
KEARNEY & TRECKER CORPORATION 1581
AND rr is FURTHER oRDERED that the complaint, insofar as it alleges
that the Respondent violated Section 8 (a) (2) of the Act, be, and it
hereby is dismissed.
MEMBER HOUSTON took no part in the consideration of the above De-
cision and Order.
Intermediate Report
STATEMENT OF THE CASE
Upon a charge duly filed by Local 1083, International Union, United Auto-
mobile, Aircraft & Agricultural Implement Workers of America, CIO, herein
called Local 1083, and upon complaint and amendments to the complaint and
notice of hearing issued and served by the General Counsel, and answers having
been filed, a hearing upon due notice was held at Milwaukee, Wisconsin, before
the undersigned Trial Examiner on January 21 to 24, 1952, involving allegations
of unfair labor practices in violation of the National Labor Relations Act, 61
Stat. 136, herein called the Act, by Kearney & Trecker Corporation, herein called
the Respondent.
The allegations in substance are that the Respondent violated Section 8 (a)
(5) of the Act by refusing to bargain collectively with Local 1083 and Section
8 (a) (1) and (2) by illegally recognizing, and observing the terms of a contract
with, the Employees Independent Union, affiliated with Confederated Unions
of America, herein called the E. I. U., and by assisting, contributing to the
support of, and interfering with the administration of the E. I. U. All parties
were represented by counsel and were afforded full opportunity to be heard, to
examine and cross-examine witnesses, to introduce evidence bearing on the issues,
to argue the issues orally upon the record, and to file briefs, proposed findings
of fact, and conclusions of law. All the parties filed briefs with the undersigned.
Decision having been reserved on a motion to dismiss the complaint, it is
hereby disposed of in accordance with the findings and conclusions below.
Upon the entire record in the case and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Kearney & Trecker Corporation is a Wisconsin corporation with its principal
plant and office located in West Allis, Wisconsin, where it is engaged in the
manufacture of milling machines and related parts. During the calendar year
1950, the Respondent purchased raw material valued in excess of $5,000,000,
50 percent of which was shipped to its plant from points outside the State of
Wisconsin. During the same year, the value of finished products sold by the
Respondent was in excess of $10,000,000, more than 50 percent of which was
shipped to points outside the State of Wisconsin.
The Respondent concedes, and I find, that it is engaged in commerce within
the meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Local 1083 , International Union , United Automobile , Aircraft & Agricultural
Implement Workers of America , CIO, and Employees Independent Union , C. U. A.,
are both labor organizations within the meaning of the Act admitting to member-
ship employees of the Respondent.
1582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The representation proceeding
On August 14, 1951, the Board issued a Decision and Direction of Election as a
result of a representation petition filed by Local 1083 on April 4, 1951 (95 NLRB
1125 ). The parties in this case participated in and were parties in the represen-
tation proceeding . I have carefully reviewed the transcript of the evidence and.
exhibits of the representation hearing as well as any additional evidence received
in the instant hearing that may bear thereon . Since I am fully satisfied that
the Board's recital of the events therein described are accurately, fairly, and
concisely set forth I find it pointless to use my own phraseology in depicting the
background events giving rise to the dispute in this case. I adopt them as my
own findings and quote the pertinent parts thereof for a full appreciation of the
issues and contentions raised by the parties herein :
3. On July 2, 1950, the Employer and the E. I. U., which had been certified
by the Board in 1945 as the bargaining representative of the Employer's
production and maintenance employees,' entered into a 2-year contract, with
provision for automatic renewal, and for reopening on basic wage rates after
the first year. The Employer and the E. I. U. contend that this contract, as
modified and extended by a supplemental agreement dated April 30, 1951,
constitutes a bar to the present proceeding. Local 1083 contends, inter alia,
that because of a schism within the ranks of the certified bargaining repre-
sentative, the contract is not a bar. The facts are in substance as follows:
On September 10, 1950, at a regular meeting of the E. I. U., attended by
41 of its 580 paid-up members,' a motion to disaffiliate from Confederated,
Unions of America, herein called the C. U. A., was made and carried.
Shortly thereafter, the E. 1. U. notified the C. U. A. of this action, returned
its charter, and later sent to the C. U. A. the balance due it for the per
capita membership tax through August 1950.
On September 26, 1950, the E. I. U., by letter, suggested to the Employer
that their contract be amended to provide for a 10-cent an hour increase in
wages. Although the Employer, on October 24, denied this request, it met
with the bargaining board of the E. I. U. on various occasions, beginning
about October 1, to discuss proposals for amendments to the contract.
On November 5, 1950, at a regular meeting of the E. I. U., attended by
85 members, a motion was made and carried by a vote of 42 to 24 that repre-
sentatives of international unions be invited to speak to the membership
on what they had to offer, and that special meetings be arranged for that
purpose. Pursuant to this motion, a special meeting of the E. I. U. was
held on December 17, at which representatives of four international unions
spoke. Flyers announcing the meeting and inviting all employees in the
unit to attend were posted and distributed at the plant.
On January 21, 1951, pursuant to a motion adopted at a regular meeting
on January 7, another special meeting was held, for the purpose of hearing
representatives of the U. A. W.-C. I. O. and the U. A. W.-A. F. L. and voting
on the question of affiliation. Notices of the meeting and its purpose were
posted and distributed to the employees. At the close of the meeting, a
written ballot was taken on a motion to affiliate with another union. Of
Case No. 13-R-2673.
The record shows that of the 41 persons present , 22 were either officers , bargaining-
board members, trustees , or stewards of the E. I. U.
KEARNEY & TRECKER CORPORATION 1583
the 99 persons present at the time of the balloting, 68 voted for the U. A. W:
C. I. 0.; 28 for the U. A. W.-A. F. L.; and 3 for the E. I. U.
The officers of the E . I. U. thereupon applied for a charter from the
U. A. W.-C. I. O. On March 4, the charter was received. The organization
thus formed was thereafter known as Local 1083 ( the Petitioner herein).
A majority of the officers of the B. I. U., including Elmer De Witte, its
president, continued in the same offices in Local 1083, without any new general
election
Although the Employer learned on January 26, through a newspaper
article, of the action taken by the E. I. U. at the January 21 meeting, it
continued to meet with the bargaining board-the same individuals with
whom it had been negotiating since December 1950-until February 8. At
a meeting on that date, however, it refused to grant a request of the Board
to permit Walter Cappel, the international representative of the U. A. W.-
C. I. 0., to participate in the negotiations.
On February 26, Cappel, by letter, formally notified the Employer of
the affiliation of the B. I. U. with the U. A. W.-C. I. O. and asked the
Employer's reasons for refusing to permit representatives of the affiliate
to participate in discussions on matters involving employee conditions. In
reply, the Employer stated that the certified bargaining representative of
the employees was the E. I. U., affiliated with the C. U. A.; that the existing
labor contract was with that representative; that Cappel's letter failed
to disclose any factual basis upon which he presumed to establish a status
as speaking for the collective bargaining representative of the employees;
and that, in the absence of a legally factual basis supporting his position,
the Employer would not recognize any representative status on his part.
Copies of this correspondence were sent by the Employer to the employees.
Within a few days after March 4, when Local 1083 received its charter,
the officers of that organization changed the lock on the door of the office
previously occupied by the E. I. U., kept possession of the E. I. U. records,
and transferred the assets of the E. I. U., including its bank account, to
Local 1083. At about the same time, Clarence Erickson, a member of
the E . I. U., filed suit against these officers, asking for an injunction restrain-
ing them from affiliating the E . I. U. with the C. I. 0., and from transferring
any of its past or future assets to the C. I. O. The Employer was notified,
through an attorney, of this action, and was asked to refrain from turning
over any checkoff funds to any C. I. O. organization!
On March 9, the Employer wrote De Witte that, although it was willing
and desirous of meeting with the bargaining board of the E. I. U. as the
bargaining representative of its employees under the 1950 contract, it was
confronted with conflicting claims on the part of the U. A. W.-C. I. 0.,
the C. U. A., and members of the "Independent Union," as to the union with
which the E. I. U. was then legally affiliated. It further stated that until
it had factual and legal information or a decision of the proper tribunal
5 During February and March , one of the three members of the executive board and
two of the three members of the board of trustees resigned , and on April 8 another
member of the executive board was removed from office by vote of the membership.
In addition , Theodore Behling , who had been recording secretary of the E. I. U.,
resigned on March 4, but resumed office later in the month after Alois Hotzhauer, who
had been appointed to take his place, resigned.
Beginning in December 1950 , the Employer checked off dues of E. I. U. members
who signed authorization cards , in accordance with a voluntary checkoff provision
in the 1950 contract.
1584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as to what the situation really was, it was advised that it was not in a
position to meet and bargain as theretofore, and expressed the hope that
the parties which were making conflicting claims would have the matter
resolved at the earliest possible moment.
On the same day, March 9, Local 1083 petitioned the Board to amend
its certification in Case No. 13-R-2673 to change the name of the bargaining
representative to "Kearney & Trecker Employees Union Local 1083 UAW-
CIO," alleging that the E. I. U., the certified representative, had disaffiliated
from the C. U. A., changed its name, and affiliated with the U. A. W.-C. I. O.
Copy of the petition was sent to the Employer, which, on March 16, filed an
answer opposing the request.
On March 11 and 18, a number of employees who were opposed to the
change in affiliation of the E. I. U. met with Arthur Sorensen, president
of the C. U. A., to discuss the situation. At the March 11 meeting, at
Sorensen's suggestion, a temporary bargaining board was appointed to
represent the E. I. U. in bargaining with the Employer. At the March
18 meeting, a motion was passed to recall all "disloyal officers" of the
E. I. U. (the individuals then functioning as officers of Local 1083), and
temporary officers were elected to take their places. On March 19, an at-
torney, on behalf of this group, wrote the Employer , informing it that an
election meeting of the E. I. U. affiliated with the C. U. A. had been held,
and giving the names of the temporary officers. Since that time, permanent
officers, two of whom had been officers of the old E. I. U., have been
elected, and the original charter granted to the E. I. U. by the C. U. A.
has been returned to them.
On March 22, the Board denied the petition of Local 1083 to amend the
certification in Case No. 13-R-2673, "for the reason that over six years
have elapsed since the issuance of the certification herein, but without
prejudice to the right to file a new petition for certification of representa-
tives." On April 4, Local 1083 filed its petition in the present proceeding.
On March 30, and on several occasions during April, the Employer, not-
withstanding its letter of March 9 to De Witte, held meetings with the
new bargaining board of the E. I. U., continuing the negotiations which
it had carried on with the old board until February.' As a result of
these negotiations, a supplemental agreement was executed on April 30,
1951, modifying various provisions of the 1950 agreement, increasing wages
subject to the approval of the Wage Stabilization Board, and extending
the term of the 1950 agreement until July 2, 1954. The Employer there-
upon applied to the Wage Stabilization Board for approval of the increased
rates.
Both the E. I. U. and Local 1083 have continued to hold regular mem-
bership meetings," and each of them claims to represent over 1,000 of the
Employer's 1,700 employees." At the time of the hearing, litigation was
still pending in the local courts with respect to the rights of the rival unions
to the property formerly belonging to the E. I. U.
On the foregoing facts, it is clear that after the Employer entered into
4 Since February, the old board, now serving as the bargaining board of Local 1083,
has attempted, unsuccessfully, to arrange meetings with the Employer.
"The E. I. U. has had as many as 128 members present at its meetings; Local 1083,
as many as 244.
In each instance, the figure includes approximately 700 employees for whom the
Employer is checking off dues. Since March 1951, when Local 1083 requested that
the April dues be sent to it, the Employer has deposited the dues in a trust account.
KEARNEY & TRECKER CORPORATION 1585
the 1950 contract with the E. I. U., there was a schism in that organization."
As a consequence, there is such confusion in the bargaining relationship
that the contract can no longer be said to promote stability in labor rela-
tions. Under these circumstances, the 1950 contract is not a bar to a
present election" The fact that the Employer has resumed bargaining
relations with the new officials of the E. I. U., and has executed a supple-
mental agreement with that organization, does not, in our opinion, affect
the situation."
The Employer and the E. I. U. contend, however, that the petition should
be dismissed because Local 1083 has not come before the Board with
"clean hands." In support of this contention, the Employer asserts, inter
alia, that certain former officers and members of the bargaining board of
the E. I. U. "secretly and surreptitiously conspired together to bring about
a disaffiliation of the E. I. U. from the C. U. A. . . . [and] to affiliate
the E. I. U. with the C. U. A."; that they "consulted with and were being
advised by UAW-CIO agents" ; and that "the whole story is a story of
faithless fiduciaries and misconduct." And the E. I. U. asserts, in substance,
that the entire procedure by which Local 1083 came into existence was
tainted by fraud. On the record before us, however, we find no convincing
evidence to substantiate these assertions.
The E. I. U. further contends that it would be inequitable to hold an
election while Local 1083 is still holding funds belonging to the E. I. U.
As noted above, however, the question of the ownership of these funds is
now pending before the courts. We are not convinced that an election should
be delayed pending its determination.
Accordingly , we find that a question affecting commerce exists concerning
the representation of employees of the Employer, within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
30 We find no merit in the contention of the Employer and the E. I. U. that there was
no real schism because less than 30 percent of the membership of the E. I. U. partici-
pated in the action taken to bring about the change of affiliation, and because such
action allegedly was not in accordance with the constitution and bylaws of the E. I. U.
and the C. U. A. The Board has never held that proof of schism is dependent on the
participation in the schismatic movement of any particular percentage of a union's
membership . Nor is it material to the issue of representation to determine the
legality of the procedure of disaffiliation. Radionic Controls, Inc., 91 NLRB 595.
"Harrisburg Railways Company, 94 NLRB 1028; Radionic Controls, Inc, supra;
Boston Machine Works Company, 89 NLRB 59.
12 Contrary to the Employer 's apparent contention , the Board did not, by denying
Local 1083's petition to amend the 1945 certification of the E. I. U., decide which of
the competing unions is the present bargaining representative. It merely held that,
because of the lapse of time, the certification was not a bar to a new petition.
On August 21, 1951, the Respondent filed a petition and brief with the Board
urging reconsideration of the above-quoted decision on the ground, among
others, that the Board erred in finding there was a real schism. On August 24
the Board denied the petition for reconsideration.
On September 12, 1951, the election directed by the Board took place with the
following result :
Approximate number of eligible voters---------------------------- 1,504
Votes cast for Local 1083---------------------------------------- 752
Votes cast for E. I. U-------------------------------------------- 588
Votes cast against participating labor organizations ----------------- 14
Valid ballots counted--------------------------------------------- 1,354
Challenged ballots----------------------------------------------- 24
Void ballots------------------------------------------------------- 5
Valid votes counted plus challenged ballots------------------------- 1,378
1586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On October 31, 1951, the Board issued its Supplemental Decision and Certifica-
tion of Representatives. I think it best to quote fully from the text thereof since
the Respondent still urges, for my determination, its objections to conduct affect-
ing the results of the election therein considered by the Board, as well as other
conduct raised for the first time in the hearing before me and later discussed :
Pursuant to a Decision and Direction of Election issued herein on
August 14, 1951,' an election by secret ballot was conducted on September
12, 1951, under the direction and supervision of the Regional Director for
the Thirteenth Region. At the conclusion of the election, a tally of ballots
was issued and served upon the parties, in accordance with the Rules and
Regulations of the Board. The tally shows that a majority of the valid
ballots were cast for the Petitioner, Local 1083.
On September 17, 1951, the Employer filed objections to conduct affecting
the results of the election. After an investigation, the Regional Director
issued his report on objections, in which he recommended that the objections
be overruled and that Local 1083 be certified as the bargaining representative.
Thereafter, the Employer filed exceptions to the Regional Director's report
on the objections.'
As the basis for its objections, the Employer alleged, in substance, that
on the day before the election Local 1083 distributed to the employees copies
of a paper entitled "Local 1083 UAW-CIO Election News" ; that in two
articles in this paper, Local 1083 made certain unfounded statements as
to the Board's findings in its Decision and Direction of Election, and re-
printed an incomplete text of the decision, in order to give the false impres-
sion that the Board had made findings unfavorable to the Employer and
the E. I. U. (the Intervenor) and favorable to Local 1083; that by so doing,
Local 1083 intentionally and deliberately misused the Board's Decision ;
and that such conduct goes beyond the bounds of permissible electioneering
and legitimate campaign propaganda. A copy of the paper in question was
appended to the objections.
The material to which the Employer objects is as follows :
(1) An article on the first page of the paper, headed "Local 1083, Presi-
dent's Message," beginning:
I want to call your attention to the complete text of the NLRB deci-
sion which appears on page 2 of this Election Edition of 1083 News.
Here are the words of a United States government agency that com-
pletely exposes all the lies and subterfuges released by those company-
minded persons who oppose your having a Union free from Company
domination.
If you will read that decision there should be no doubt in your mind
as to who has been telling the truth. [Emphasis supplied.]
(2) An article on the second page, headed "Gov't Documents Prove EIU,
Company Collusion, Chicanery," containing the following paragraph, fol-
lowed by an abridged reprint of the Board's Decision :
195 NLRB 1125.
2 The Employer also requested oral argument. As the objections, the Regional
Director's report, and the exceptions to the report, in our opinion, adequately present
the issues and the position of the Employer, the request is denied.
Since filing its exceptions, the Employer has requested permission to file a memo-
randum or to argue orally concerning the possible bearing on this case of the Board's
recent decision in the Bonwit Teller case , 96 NLRB 608. We have considered the
Bonwit Teller case and find it inapplicable in this situation. Accordingly, the Em-
ployer's request is hereby denied.
KEARNEY & TRECKER CORPORATION 1587
Since the company sponsored opposition has tried to confuse Kearney
Trecker workers by making false statements in its many leaflets, we
herewith print the facts, which led up to tomorrow's NLRB election.
This is a transcript of the NLRB decision which ordered the election.
Although the text of the Board's Decision, as quoted in the second of these
articles, is incomplete,3 we do not believe that the omissions made it so
misleading as to constitute an abuse of the Board's process.` Nor do we
believe that the statements of Local 1083 with respect to the Board's find-
ings, regardless of their truth or falsity, go beyond the bounds of legitimate
union campaigning.6 We therefore find that the Employer's objections do
not raise material or substantial issues with respect to the election. Ac-
cordingly, we hereby adopt the Regional Director's recommendation and
overrule the Employer's objections to the election.
Because as the tally shows, a majority of the ballots were cast for Local
1083, we shall certify it as the exclusive bargaining representative of all
employees in the appropriate unit.
Omitted from the Decision , as reprinted , was the following paragraph :
The E. I. U. further contends that it would be inequitable to hold an election
while Local 1083 is still holding funds belonging to the E. I. U. As noted above,
however, the question of the ownership of these funds is now pending before the
courts. We are not convinced that an election should be delayed pending its
determination. We do not agree with the Employer that the omission of this
language gives rise to an impression that the conduct of Local 1083 in seizing
funds and property belonging to the members of the E. I. U. had inferentially
been passed upon as proper by the Board.
4 Phelps Dodge Corporation, 62 NLRB 1287.
6 As we have previously said, "absent violence, coercion, or other gross misconduct,
the Board does not undertake to censor or police union compaigns, or to consider the
truth or falsity of official union utterances ." West-Gate Sun Harbor Company, 93
NLRB 830.
As mentioned above, on April 30, 1951, the Respondent and the E. I. U. entered
into a supplemental agreement modifying the provisions of the July 1950 con-
tract and extending its 2-year term until July 2,1954. Up until November 2, 1951,
the date when the Respondent received the above-quoted Board certification of
Local 1083, the Respondent continued to give full force and effect to the agree-
ment just described and accorded exclusive recognition to the E. I. U. as the
bargaining representative of its employees. Since November 2 the Respondent,
under circumstances more fully set forth below, has not continued to recognize
or deal with the E. I. U. as the exclusive bargaining representative and it has
likewise refused to honor the Board's certification of Local 1083 as exclusive
bargaining representative or to bargain with that union upon its request made
on November 2, 1951. On November 15, the Respondent notified all of its
employees by letter that it had decided not to recognize the decision of the
Board in certifying Local 1083 "in order to obtain a complete review of the entire
case before a United States Court. . . . We want you to know also that this
court case is an issue between the Company and the N. L. R. B., and not one
between the unions and the companies."
There is no dispute as to the bargaining unit found appropriate by the Board.
I therefore find that all production and maintenance employees at the Respond-
ent's plant at West Allis, Wisconsin, excluding officers of the corporation, depart-
ment heads, time-study men. foremen, assistant foremen, office employees, safety
men, students, patternmakers, patternmaker apprentices, professional employees,
guards, and all supervisors as defined in the Act, constitute a unit appropriate
for the purposes of collective bargaining, within the meaning of Section 9 (b)
of the Act.
242305-53-101
1588 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD
B. The issues and conclusions on the refusal-to-bargain allegation
1. The schism problem
The Respondent asserts several defenses to the allegation that it violated
Section 8 (a) (5) of the Act. Foremost is its argument that the Board should
have dismissed the petition filed by Local 1083 on the ground that the Respondent's
contract with the E. I. U. constituted a bar to the holding of an election and that
the Board should not have made an exception to its contract bar rule by
applying the "schism doctrine" to the facts of this case. In its brief to me the
Respondent makes an exhaustive analysis of a number of recent Board decisions
dealing with schism cases-decisions which indicate a more restrictive application
by the Board of this doctrine.'
The Respondent, while not waiving its argument that the Board has mis-
applied the schism doctrine under its earlier decisions, earnestly urges that the
Board would reach a different result in the light of its more recent decisions and
requests that I find that no schism be found to exist as that term is applied by
the Board, and that I recommend "that the certificate heretofore issued to Local
1083 . . . be withdrawn and cancelled."
Preliminarily, I want to make clear, since this problem arises later, that I
consider myself bound by the Board's findings and conclusions in the prior
representation case absent evidence which was newly discovered or unavailable
to the Respondent at the time of the representation hearing.' Whether a so-
called change of policy by the Board subsequent to its decision in the representa-
tion case would affect the extent to which I feel myself bound I find it unnecessary
to determine, since I am of the opinion that even in the light of the Board's
narrower schism policy adverted to above, the Board would have reached the
same result.
My own independent appraisal of the factual situation here revealed is such
that it does not show a raid by a rival union or dissatisfaction by dissident
members with the bargain made by the representative holding the contract!
While it is true, as pointed out by the Respondent, that the notice calling the
regular meeting of September 10, 1950, did not mention that the subject matter
1 For example. in Saginaw Furniture Shops, Inc., 97 NLRB 1488, the Board stated that.
in determining whether to order an election to resolve the question concerning representa-
tion by two claimants to representation rights, the Board should be careful that it was
not merely facilitating a raid by a rival union during a contract term or permitting a
group of dissident members to express their dissatisfaction with the bargain made by the
representative holding the contract . The Board also said :
While the Board has directed elections in subsequent schism cases where the facts
were not as clearly indicative of a complete breakdown in the bargaining relationship
as in the Boston Machine case [ Boston Machine Works, 89 NLRB 59] the Board has
become increasingly aware that this exception to the contract bar rule may, by too broad
an application , become an unwarranted means of circumventing that rule. Where
the factual basis of the alleged schism consists of nothing more than the sort of
formal meeting that took place in this case , the Board does not believe that an excep-
tion to its normal contract bar doctrine is warranted . We shall , accordingly , dismiss
the petition.
See also West Steel Casting Co ., 98 NLRB 153 ; Phoenix Manufacturing Co., 98 NLRB 803,.
American Cyanamid Co., Calco Chemical Division , 98 NLRB 9; General Electric Co., 98
NLRB 134; Lewsttes and Sons, 9,6 NLRB 775.
2 See Clark Shoe Company, 88 NLRB 989 , and cases cited on page 996 thereof.
3 Stanley Oman, an active member of the E I. U. who opposed affiliation with the
UAW-CIO, testified in the representation proceeding that the old officers of the E. I. U.
originally discussed new affiliation as a means "more or less putting on pressure to get
certain concessions from management . . . they were trying to put a scare in the manage-
ment that they would join the CIO."
KEARNEY & TRECKER CORPORATION 1589
of disaffiliation would be taken up, a point considered of some significance by
the Board in its more recent decisions, the members were given notice and an
opportunity at subsequent special meetings, well publicized, of exercising their
choice of remaining with the E. I. U. or affiliating with a new organization.
It should also be noted that the Respondent met with the old bargaining board-
the same individuals with whom it had been negotiating for an amendment of
the existing contract for several months-on three occasions subsequent to
January 26, the date when the Respondent first learned of the vote to affiliate
with the UAW-CIO. When the E. I. U. adherents re-formed their ranks early
in March there was sufficient confusion created as to the identity of the bargain-
ing representative that the Respondent itself took the position on March 9 that,
since it was confronted with conflicting claims as to the union with which the
D. I. U. was then legally affiliated, it was not in a position to meet and bargain
as theretofore, and expressed the hope that the parties who were making con-
$icting claims would have the matter resolved at the earliest possible moment.
I find merit in the observation made by the General Counsel in his brief :
This was no blitzkreig raid from the outside by UAW-CIO ; this was an
"inside job" by Respondent's own employees who took formal action over
a long period of time before the UAW affiliation. The "confusion" was
partly caused by a new movement among EIU adherents, after the UAW
affiliation, the reverse of some recent cases in which the Board viewed
alleged schism problems essentially as raids, whereas the Board decision
here fits the criteria of its orthodox schism precedent-Boston Machine
Works Company, 89 NLRB 59, 60, and cases cited.
2. The alleged preelection misconduct, coercion, and fraud by Local 1083
The Respondent next contends that even if the schism question be decided
adversely to it the preelection conduct of Local 1083 was such that the election
should be invalidated and set aside. The Respondent reiterates the objection,
already disposed of by the Board in its Supplemental Decision quoted above,
that Local 1083 on the day before the election distributed to the employees an.
incomplete text of the Board's decision in the representation case in order to
create the false impression that the Board had made unfavorable findings to
the Respondent and the E. I. U. The Respondent again urges that the doctrine
of the Bonwit Teller case (96 NLRB 608), as amplified by the Board in the
Biltmore Manufacturing Company case (97 NLRB 905), is applicable; that since
it is Board policy that its elections be held under "laboratory conditions" and any
conduct "which destroys such laboratory conditions is sufficient to destroy the
freedom of choice of the employees for whose benefit the election was held"
citing General Shoe Corporation (97 NLRB 499), that the conduct of Local 1083
"has been of such a nature as to deprive the other of an equal opportunity to
approach the voters." In the same connection, the Respondent refers to the
seizure of the funds and records of the"E. I. U. by Local 1083, as depriving the
E. I. U. of the means to address the employees, a matter also considered and
rejected by the Board. The Respondent stresses, in the light of the Board
decision in Trinity Steel Company (97 NLRB 1486), where the Board held that
an employer was privileged to answer preelection propaganda, that neither the
Respondent nor the E. I. U. had any opportunity to answer the misleading article
of Local 1083 since it was distributed the day before the election.
As has been seen, these contentions have been passed on by the Board. While
the Respondent presents additional arguments why the Board should reverse
its position, the substance of its objections remain the same. Under these cir-
cumstances , the Board's disposition constitutes, for the Trial Examiner, the law
1590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the case' The Board may, of course, alter any decision made by it in a
representation proceeding. While recognizing the availability of ultimate ju-
dicial review, the Respondent suggests that the determinations of the Board
are subject to review by a Trial Examiner. Even the courts are constrained to
abide by decisions and legal principles announced by courts of superior juris-
diction. Indeed, a refusal to accept the determination of a higher judicial
tribunal would be fruitless since such a refusal would be promptly followed by
a reversal of the divergent decision . To permit Trial Examiners whose findings,
under the express provisions of Section 4 (a) of the Act, are reviewable by
the Board, to review Board determinations would thus be the height of in-
congruity.
Similarly, nothing in the Administrative Procedure Act, herein called the
APA, grants authority to a Trial Examiner to review Board determinations.
On the contrary, that Act expressly exempts representation proceedings from the
established procedure! As a result, an Examiner, who might otherwise be
required to make an initial determination of the issues in a case, has been given
no power by that Act, absent newly discovered or unavailable evidence, to make
such determination in connection with issues already determined in a proceeding
relating to certification of employee representatives. This same general subject
matter is discussed later from a somewhat different posture.
Bearing in mind that the Board-directed election occurred on September 12,
1951, we now come to alleged oral threats made by Frank Orlando, 1 of about 20
to 30 stewards for Local 1083, to Fred Meyer and Clarence Erickson, employees
of the Respondent and E. I. U. members. The conversation with Meyer occurred
in mid-August and the 2 meetings with Erickson early in September, several
days before the election. Neither of these incidents formed the basis of objections
by the Respondent or the E. I. U. in the 5-day period permitted under Section
102.61 of the Board's Rules and Regulations for the filing of objections to the
conduct of the election or conduct affecting the results of the election. I took
this evidence, however, on a showing by the Respondent that it was newly dis-
covered and not available in the period specified for making objections. That
lrickson did not disclose Orlando's alleged threats to the E. I. U., however,
as he testified, is somewhat surprising since Erickson was a key figure in the
E. I. U. when it re-formed after the schism occurred, and not only did he act
"as advisory chairman" of the E. I. U. but was plaintiff in the injunction suit
against the former officers of the E. I. U.
Meyer testified that after causing Orlando to leave Meyer's department because
he had no right to be there, Orlando said, "After the CIO Is in, well, we'd be
sorry." Meyer reported the incident that evening to an E. I. U. steward who
told Meyer not to "worry about it."
About September 5 or 6, Erickson and Orlando got embroiled in a bitter
argument over the merits of their respective unions. It wound up, according
to Erickson, when Orlando remarked, "If you don't stop fighting for the EIU,
you will be out of a job." About 2 days later, Erickson and Orlando chanced
to meet again and the argument resumed. Again, according to Erickson,
Orlando repeated the threat quoted above. According to Raymond Ryan, who
corroborated Erickson's testimony, Erickson replied that he would not lose
his job. While admitting the conversations with Meyer and Erickson, Orlando
denied making any threats. Local 1083 contended that Erickson himself was not
above making "threats." It adduced the testimony of two witnesses, undenied
4 See North Carolina Granite Corporation, 98 NLRB 1197.
See Sections 5, 7, and 8, Attorney General's Manual on the Administrative Procedure
Act, 1947, pp. 43, 46.
BEARNEY & TRECKER CORPORATION 1591
by Erickson, that about the first week in September, Erickson said to John
Shannon , "I'll take care of you and the rest of the CIO after the election."
Another incident claimed as preelection interference occurred in March or
April 1951, considerably prior to the election, involving Elmer DeWitte, president
of Local 1083, and Stanley Oman, manager of the commissary. Since about
1934, the E. I. U. has operated the commissary on the Company's premises under
g nominal rental arrangement, the profits going into a separate fund used to
provide certain sick and death benefits for E. I. U. members. When Local 1083
claimed to be the legal successor to the E. I. U. and seized the funds and records
of that organization it also claimed the right to run the commissary and to receive
the profits thereof. Pending the outcome of civil litigation between the two
unions, a local State court has permitted Local 1083 to run the commissary and
retain the funds in a fiduciary capacity. Oman, employed as a clerk by the
Respondent, has also served as paid manager of the commissary for the past 12
years and has remained a staunch adherent of the E. I. U.
In March or April 1951, Oman was requested by John Shannon, a bargaining
board member of Local 1083, not to wear an E. I. U. button while in the commis-
sary because, to quote Shannon, "I told him he had a moral obligation to the
group that was paying his wages." The button bore the legend "I am EIU 100%."
At about this time DeWitte made a similar request of Oman but, according
to Oman, it was not limited to wearing the button in the commissary. "Quite
a heated argument followed and I refused," and DeWitte "said to me `you will
be sorry,"' Oman testified. DeWitte denied making the latter remark. Follow-
ing the Board election on September 12 Local 1083 discharged Oman on September
27 as manager of the commissary. In October, the Circuit Court of Wisconsin
ordered Oman restored to his position as commissary manager subject to certain
conditions.
At this point it might be well to discuss another contention raised by the
Respondent and the E. I. U. concerning alleged fraud on the part of Local 1083
when in May 1951 it distributed a "Report to the Membership" which stated in
part :
Only paid up members in Local 1083 are getting sick and death benefits,
so be certain that you do not become delinquent. MEMBERS ON CHECK-
OFF that have signed the pledged petition are considered in good standing
even though the Company is holding up your dues . . . If you have not signed
the petition get to your steward and sign it today.
Thereafter Local 1083 refused to pay the sick and death benefits of E. I. U.
members. The E. I. U. assured its members that it would pay the benefits if it
could not obtain them from Local 1083, and thereafter did so. Litigation con-
cerning the rights of E. I. U. members to these benefits was instituted against
Local 1083 prior to March 1951 and is still undetermined.
In reaching my conclusionary findings on the alleged preelection misconduct de-
scribed above, I have given considerable weight to the fact that beginning in
February 1951 and repeated at succeeding monthly meetings thereafter, the
entire supervisory force of the Respondent was instructed to report any acts
of intimidation, restraint, coercion or like improper electioneering on the part of
the employees as a result of the competition between the two unions. The fact
that no such acts were reported by any supervisor during the preelection period I
consider significant in weighing the effect of the conduct complained of on the
outcome of the election in a plant involving about 1 ,500 employees . The record
also warrants the inference that the E . I. U. was also alert to any preelection
excesses on the part of Local 1083. In this setting, even if I gave full credence
1592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the testimony of the Respondent and E . I. U. witnesses I would not find it of
sufficient merit to warrant my recommendation that the election be set aside. I
therefore find it unnecessary to resolve any conflicts in evidence revealed by
these incidents.
With the exception of the Orlando threat to Erickson on the two occasions pre-
ceding the election, all the other incidents were too remote in point of time to
have had a coercive effect on the election .6 For example, the contention that the
leaflet of Local 1083 on sickness benefits uttered in May and clearly available to
the E. I. U. during the period permitted for the filing of objections was coercive
in September in the light of the E. I. U.'s counterpropaganda and the pending
E. I. U. court litigation about these funds, is clearly without merit.' Likewise, I
find too remote the remark of DeWitte to Oman in March or April that "you will
be sorry" following DeWitte's request that Oman remove his E. I. U. button. I
am persuaded, however, that DeWitte asked Oman to remove his button only
while acting as commissary manager and according to Shannon's testimony
which I fully credit, Oman promised to do so while insisting on his right to wear
the button elsewhere in the plant to which there was no objection. I also find
the Orlando remark to Meyer in mid-August not only remote but too inconse-
quential to be considered as intimidation or coercion.
We now come to the September recitals of Erickson which appear to be timely
and of a nature that might seem coercive. However, I cannot find that Erick-
son's vote, a key figure in E. I. U. affairs, was coerced by Orlando's threat com-
ing as it did after a bitter argument. Erickson not only was not above making
threats himself but evidently did not consider Orlando's remarks serious enough
to report until the beginning of the hearing in this case. In any event, consider-
ing that Orlando was only 1 of 20 to 30 stewards of Local 1083 I cannot find this
isolated incident, even if deemed beyond the bounds of permissible preelection
conduct, either alone or in conjunction with the other conduct described above,
to form a pattern of conduct so clearly defined as to warrant a recommendation
setting aside the election in a plant of about 1,500 employees.'
3. Procedural contentions
The Respondent raises several procedural points which require comment. As
indicated above, during the course of the hearing I excluded some evidence prof-
fered by the Respondent and the E. I. U. absent a showing that it was newly
discovered or unavailable, on the ground that it had either been litigated or the
parties had an opportunity to litigate it during the course of the representation
hearing
The Board has declared that where coercion is charged it must be shown that an
employee was prevented from exercising a free choice at the polls by conduct which was
both coercive in character and so related to the election in time or otherwise as to have
had a probable effect upon the employee's action at the polls. See Napa New York Ware-
house, Inc., 75 NLRB 1269; Kroder-Reubel Company, Inc., 72 NLRB 240; Mallinckrodt
Chemical Company, 86 NLRB 662; Calvine Cotton Mills, 98 NLRB 843.
4 The Board has held that it will normally refuse to police the information, misinforma-
tion, argument, and statement of opinions which accompany preelection campaigns, and
that absent violence or other gross misconduct, it will not weigh the truth or falsity of
campaign utterances. The Board normally leaves to the good sense of the voters the task
of appraising such propaganda, and to refer to opposing parties the task of correcting
inaccurate and untruthful statements. See Trinity Steel Company, Inc, 97 NLRB 1486.
A See Wilson & Co., 95 NLRB 882; Larsen-Hogue Electric Co, 97 NLRB 1405.
See Pittsburgh Plate Glass Co . v. N. L. R. B., 315 U. S. 146; Allis-Chalmers Manufac-
turing Co. v. N. L. R. B., 162 F. 2d 435 (C. A. 7) ; Wilson Athletic Goods Manufacturing
Co., Inc. v. N. L. R. B., 164 F. 2d 637 (C. A. 7) ; N. L. R. B. v. West Kentucky Coal Com-
pany, 152 F. 2d 198 (C. A. 6), cert. denied 328 U. S. 866.
KEARNEY & TRECKER CORPORATION 1593
The Respondent recognizes that representation proceedings under Section 9
(c) of the Act are not made subject to direct review by the courts of appeal
under Section 10 (f), and that the record in such proceedings becomes part of
the record in unfair labor practice cases based on a refusal to bargain col-
lectively with a labor organization which has been certified as set forth in
Section 9 (d) of the Act, with the result, as stated by the Supreme Court in the
Pittsburgh Plate G lass Co. case cited above, that "The unit proceeding and this
complaint on unfair labor practices are really one." But, argues the Re-
spondent, it is entitled in such an unfair labor practice proceeding to clarify,
review, or enlarge any matter touched upon in the representation case because it
is entitled to have a duly qualified Trial Examiner under the Administrative
Procedure Act pass de novo upon the evidence since the representation hearing
was conducted by a hearing officer not qualified under the Act, a presiding officer
who "had previously obtained knowledge of much of the circumstances and many
of the facts" involved in the representation hearing. The Respondent therefore
argues "it is but natural that the Hearing Officer cannot be expected to view
the issues with the same lack of bias and with the complete neutrality expected
of a Trial Examiner.... In fact, [the Respondent] should not be held to the
[representation] hearing record at all, but should be at liberty to have the same
factual issues tried in regular course before a Trial Examiner who has had
no opportunity to develop a bias." The Respondent urges therefore that I re-
verse the rulings I made limiting the parties to newly discovered or unavailable
evidence and give "consideration to such matters as if such objections had been
overruled."
I cannot find anything either in the APA or the Taft-Hartley Act which sup-
ports the Respondent's position 10 As I stated earlier when I considered the
same subject matter, representation proceedings are nonadversary proceedings
specifically exempt from the ambit of the APA. The APA was already law
(June 11, 1946) when Congress considered and enacted the Taft-Hartley Act
after considerable scrutiny and debate (August 22, 1947). Not only did Con-
gress reenact Section 9 (d) of the Wagner Act in the light of numerous Board
and court decisions u and the APA but amplified Section 9 (c) by specifically
providing that the hearing in a representation case "may be conducted by an
officer or employee of the regional office." A comparison of the APA and the
Taft-Hartley Act makes clear that Congress did not hesitate to place greater
strictures on the Natioial Labor Relations Board than the APA placed on other
administrative agencies where Congress thought it necessary to do so. Under
these circumstances, the inference is clear that Congress has accepted the con-
struction placed by the Board and the courts upon the statutory provisions here
under consideration-"a single trial of the issue was enough"-and the Re-
spondent is not entitled to another trial because the presiding officer at the
representation hearing was not a duly qualified Trial Examiner under Section
11 of the APA. Cf. N. L. R. B. v. Gullett Gin Co., Inc., 340 U. S. 361, 366. Fur-
thermore, if the Respondent felt that it had been deprived of a fair hearing
before the hearing officer in the representation case it had ample opportunity
to present its claim to the Board as part of that proceeding. It failed to do so.
Cf. N. L. R. B. v. Tower Co., 329 U. S. 324. In any event, from my independent
appraisal of the representation record I concur with the Board's finding in that
10 The Board considered and rejected a somewhat similar argument in Clark Shoe
Company, supra.
u For example in Pittsburgh Plate Glass Co., supra, the Supreme Court said, "a single
trial of the issue was enough " and this Court may examine "the record in the unit pro-
ceeding, which under Section 9 ( d) of the Act is part of the record here."
1594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
case that the "hearing officer's rulings made at the hearing are free from
prejudicial error...."
The Respondent also urges that as an essential part of "the investigation of
the record" in the representation case under Section 9 (d) of the Act it is entitled
to have included the report of the hearing officer in that case " as well as the
records of the regional office "concerning the showing of interest of the peti-
tioner," Local 1083." At the instant hearing I granted motions to quash sub-
penas calling for these documents and set forth my reasons for doing so on the
record. I am requested by the Respondent to reverse my rulings and I decline.
Concerning a similar kind of document, the court in Berkshire Knitting Mills V.
N. L. R. B., 121 F. 2d 235, 238, reaffirmed 139 F. 2d 134 (C. A. 3), said :
... it is nothing more than a memorandum of the report of the field officer
of an administrative agency to an official in the home office and is, at best,
hearsay with regard to [the] issues involved . . . it would be utterly imprac-
ticable and undesirable to open up all the records and files of a public officer,
a board or a court to examine all of the documents or other communications
which had passed between members of employees of one of them prior to
the conclusion upon any particular subject.
It is firmly settled that it is "not the function of the court to probe the mental
processes" of an administrative officer . United States v. Morgan, 313 U. S. 409,
422; N. L. R. B. v. The Baldwin Locomotive Works, 128 F. 2d 39 (C. A. 3).
Furthermore, if the Respondent suspects that the hearing officer may have made
recommendations in his analysis in violation of Section 9 (c) of the Act there
is nothing in the allegation of sufficient stature to overcome the presumption of
regularity and of the conscientious discharge of official duty which attends
administrative action. N. L. R. B. v. Donnelly Garment Co., 330 U. S. 219, 229-
231; N. L. R. B. v. Greensboro Coca-Cola Bottling Co., 180 F. 2d 840, 845 (C. A. 4).
Under Section 9 (c) of the Act, the responsibility for making a finding of a ques-
tion of representation for directing an election, and for certifying its results is
not imposed upon the hearing officer ; it is laid upon the Board.
In regard to the showing of interest made by Local 1083 the Board has con-
sistently ruled, as it did in the representation case herein, that a labor organi-
zation 's showing of interest is an administrative matter to be determined solely
by the Board" There was evidence from E. I. U. and Respondent witnesses
that they were not interviewed by Board's agents prior to the representation
hearing, but since I cannot differentiate between the prehearing and post-
hearing aspects of the representation investigation, the Respondent and the
E. I. U. having fully participated in the 5-day representation hearing, I am
unable to find this evidence sufficient to overcome the presumption that an ade-
quate and proper investigation was made." Furthermore, there is no showing by
the Respondent to overcome the possibility that the Board considered the
" Section 101 25 (c) of the Board's published Statements of Procedure provide that
"upon the close of the hearing, the entire record in the case is then forwarded to the
Board in Washington , together with an informal analysis by the hearing officer of the
issues and the evidence but without recommendations."
As Section 101.17 of the Statements of Procedure provide that the "evidence of repre-
sentation submitted by the petitioning labor organization . . . Is ordinarily checked to
determine the number or proportion of employees who have designated the petitioner,
it being the Board's administrative experience that in the absence of special factors the
conduct of an election serves no purpose under the statute unless the petitioner has been
designated by at least 30 percent of the employees." [Emphasis supplied.]
14 See Pacific Gas and Electric Company, 97 NLRB 1397, and cases cited therein.
1 See N. L. R. B. v. Jasper Chair Co., 138 F. 2d 756, 758 (C. A. 7) ; Fay v. Douds, 172 F.
2d 720 (C. A. 2).
KEARNEY & TRECKER CORPORATION 1595
schism situation herein as coming within the "special factors" referred to in
Section 101.17 thereby warranting a deviation from the 30 percent showing
normally required. In any event, the election results would appear to vindi-
cate the administrative determination that the showing of Local 1083 was strong
enough to warrant the expense of running the election.
In view of the foregoing, I conclude that Local 1083 was validly certified by
the Board. I therefore find that on November 2, 1951, and thereafter, Local
1083 by virtue of Section 9 (a) of the Act was, and now is, the duly designated
representative of a majority of the employees in the above-described appropriate
unit for the purposes of collective bargaining with respect to rates of pay, wages,
hours of employment, or other conditions of employment.
Since the Respondent concedes that it has failed to honor the Board's certifica-
tion of Local 1083 and to bargain with that organization, I accordingly find
that, on November 2, 1951, and at all times thereafter, the Respondent has
refused to bargain collectively with Local 1083 and has thereby interfered
with, restrained, and coerced its employees in the exercise of the rights guaran-
teed by the Act.
C. The alleged violation of Section 8 (a) (2) of the Act
It will be remembered that the old bargaining board of the E. I. U. negotiated
for several months with the Respondent with respect to a modification of the July
1950 contract. In fact, the issues had gradually narrowed in the give-and-take
of collective bargaining to the point where the parties were not too far from
agreement. It was in this setting that on March 30, 1951, and on several
occasions during April, the Respondent held meetings with the new bargaining
board of the E. I. U., following the Board's denial on March 22 of the petition
of Local 1083 to amend the outstanding certification of the E. I. U. The con-
tinuation of the negotiations with the new board which the Respondent had
carried on with the old board until February resulted on April 30, 1951, in the
execution of a supplemental agreement with the E. I. U. modifying various terms
of the July 1950 contract. It should also be remembered that the supplemental
agreement was executed at a time when the representation petition filed by Local
1083 was pending before the Board, it having been filed on April 4.
It is the contention of the General Counsel, vigorously opposed by the Respond-
ent, that the Respondent's continued observance of this supplemental agree-
ment 1° which not only affirmed the "sole and exclusive" representative status
of E. I. U. but extended it for a period of 2 years to July 2, 1954, and granted
its employees substantial additional benefits "under EIU auspices in the form
of vacations, base rate raises, a bonus plan, provision for cost of living adjust-
ments quarterly (in a time of inflation), and for provision for incentive 'job
pace' increases to 20 percent above standard, all subject to WSB approval, for
which Respondent quickly applied, as the Board found, and is evidenced fur-
ther in this record by various WSB approvals, duly publicized by Respondent,"
constituted aid and assistance to the E. I. U. in violation of Section 8 (a) (2)
of the Act. The General Counsel's theory in this respect is bottomed primarily
upon an alleged violation of the Board's Midwest Piping doctrine" and similar
"Since the charge herein was filed on November 16, 1951 , the General Counsel recog-
nizes that under Section 10 (b) of the Act, the cutoff date for the beginning of the 6-month
period prior to the filing of the charge is May 17, 1951 , and that he is therefore barred from
urging the execution of the supplemental agreement on April 30 as an unfair labor
practice.
11 Midwest Piping and Supply Co., Inc ., 63 NLRB 1060.
1596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cases" where the Board has uniformly held that an employer unlawfully in-
fringes upon his employees' freedom to select their own bargaining representa-
tives if he recognizes and contracts with a labor organization as their exclusive
bargaining representative notwithstanding the existence of a valid or real
question as to their representation. As noted above, the Board found on August
14, 1951, that Local 1083's petition in the representation case did raise a real
question concerning representation. It should be made clear, however, that
the mere filing of the representation petition by Local 1083 did not of itself
serve to raise a question concerning representation. Nor would the premature
extension of the July 1950 agreement under comparatively recent decisions of
the Board serve, absent the schism problem, to render the contract nugatory
as a bar to a determination of representatives, since under these decisions
the contract would constitute a bar for the period of its original term, that
is, until July 2, 1952."
As noted earlier, although the Respondent continued to give full force and
effect to the supplemental agreement as well as exclusive recognition to the
E. I. U. until November 2, 1951, the date when it received the Board's certifica-
tion of Local 1083, it did not do so thereafter. I am persuaded, despite some
evidence to the contrary, that when the Respondent decided not to honor the
Board's certification of Local 1083 "in order to obtain a complete review of
the entire case before a United States court" that it also decided not to bargain
with or recognize the E. I. U. pending final determination of such litigation.
It should be pointed out, however, that when the Respondent notified its em-
ployees on November 15, 1951, that it was going to seek a court test of the
Board's certification of Local 1083, it failed also to notify them of its decision
not to recognize the E. I. U. pending such determination. Nevertheless, the
evidence establishes that the Respondent has not recognized or bargained with
the E. I. U. since November 2, that it has revoked permission of the E. I. U. to
use the Company's bulletin boards, and has instructed all its foremen to process
grievances only on an individual basis.
Max Raskin , attorney for Local 1083, testified that Leon Lainfrom, attorney
for the Respondent, telephoned him about November 15 and informed him of
the Company's decision not to honor the Board's certification of Local 1083.
Lamfrom also said, according to Raskin, that the Respondent would "continue
to recognize and bargain" with the E. I. U. The latter statement was denied
by Lamfrom. He testified that in answer to Raskin 's question as to how the
Respondent was going to conduct its relations with its employees pending
review of the Board's certification, he replied, "I have instructed the Industrial
Relations Department, we will continue to deal in hours, wages and working
conditions along the same lines that we have in the contracts which we have
with the E. I. U. That is, we will observe those terms without any recognition
of the E. I. U." Since I believe both lawyers to be trustworthy witnesses, it is
obvious to me that there was an honest misunderstanding and probably an
understandable one in the light of the above-quoted testimony of Lamfrom.
If the Respondent had the legal right to recognize and deal with the E. I. U.
until receipt of the Board's certification of Local 1083, I am not persuaded that
the Respondent rendered aid and assistance to the E. I. U. in violation of the
Act by publicizing, in the period prior to the election on September 12 in its
monthly newspaper called the "Kearney & Trecker News" and in letters to its
as See International Harvester Company, 87 NLRB 1123 ; William Penn Broadcasting
Company, 94 NLRB 1104, and cases cited in both decisions.
11 See Western Electric Co., 94 NLRB 54, and cases cited therein.
KEARNEY & TRECKER CORPORATION 1597
employees , the benefits its employees would receive under the supplemental
agreement . I have no substantial basis for inferring that the Respondent would
have acted any differently if there had been no election scheduled and no rivalry
between two competing unions. Whatever advantage the Respondent and the
E. I. U. may have derived from their relationship was incidental to the exclusive
bargaining status then held by the E. I. U. and the valid contract that flowed
therefrom, a possible and natural advantage which inheres in the position of
every lawful bargaining agent. If, within the meaning of the Act, the Respond-
ent had the right to effectuate the contract and its exclusive recognition of the
E. I. U. prior to the receipt of the certification of Local 1083, then what it did,
viewed separately therefrom, was not, in my opinion, a violation of the Act.
I have made the above findings under the 8 (a) (2) allegation of the com-
plaint so that the Board may, if it desires, make a definitive resolution as to
whether, under these circumstances, there has been a violation of the Midwest
Piping doctrine. I believe it unnecessary to do so. The remedy sought by the
General Counsel if he were able to establish a violation of Section 8 (a) (2) of
the Act would not he disestablishment of the E. I. U.0 but withdrawal and with-
holding of recognition of that organization by the Respondent until or unless
certified by the Board, as well as a direction to cease giving effect to the existing
contract. This, as we have seen, the Respondent has already done when the
prior certification of the E. I. U. was superseded by the intervening certification
of Local 1083. It may be argued, however, that the danger exists that the
Respondent may reinstate the contract and exclusive recognition of the E. I. U.
The short answer is that the remedy for the Respondent's violation of Section
8 (a) (5) of the Act is substantially the same as the remedy proposed by the
General Counsel for a violation of Section 8 (a) (2). The language of the
Supreme Court in Medo Photo Supply Corporation v. N. L. R. B., 321 U. S. 678,
makes my point clear : "The National Labor Relations Act makes it the duty
of the employer to bargain collectively with the chosen representatives of his
employees. The obligation being exclusive ... it exacts the negative duty to
treat with no other." "
I will therefore recommend that the 8 (a) (2) allegation of the complaint be
dismissed , without passing on its merits, on the ground that the remedy here-
inafter recommended not only encompasses any remedy that might flow from
an 8 (a ) (2) violation of that section but because it also adequately eliminates
"There is no contention here that Respondent dominated or controlled the E. I. U.
See Carpenter Steel Co, 76 NLRB 670, where the Board defines when assistance and
support to a labor organization falls short of domination.
P1 This language stems from the Supreme Court decision in N. L. R. B. v. Jones & Laughlin
Steel Corp., 301 U. S. 1, where the Court said :
The decree which we affirmed in that case [Virginian Railway Co. v. System Federa-
tion, No. 40, 300 U . S. 515] required the Railway Company to treat with the repre-
sentative chosen by the employees and also to refrain from, entering into collective
labor agreements with anyone other than their true representative as ascertained in
accordance with the provision of the Act. We said that the obligation to treat with
the true representative was exclusive and hence imposed the negative duty to treat
with no other. We also pointed out that, . . . the injunction against the Company's
entering into any contract concerning rules, rates of pay and working conditions
except with a chosen representative was "designed only to prevent collective bargaining
with anyone purporting to represent employees " other than the representative they
had selected. It was taken "to prohibit the negotiation of labor contracts generally
applicable to employees" in the described unit with any other representative than the
one so chosen, . .. . We think this construction also applies to Section 9 (a) of
the National Labor Relations Act.
1598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the underlying cause of the unfair labor practices and thus effectuates the
policies of the Act g
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of the Respondent described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor prac-
tices, it will be recommended that the Respondent cease and desist therefrom
and that it take certain affirmative action designed to effectuate the policies
of the Act. The Respondent contends that if I find that Local 1083 was properly
certified by the Board and recommend that the Respondent bargain with it,
that unless I also recommend that Local 1083 carry out all the terms and pro-
visions of the Respondent's contract with the E. I. U., it "would amount to a
deprivation of the property rights of the Respondent without due process of law,
in contravention of the Fifth Amendment to the Federal Constitution."
The Respondent is well aware, as indicated in its brief, that in deciding
whether or not a subsisting contract will bar a redetermination of representa-
tives, the Board does not adjudicate the rights of the parties thereunder 2'
The constitutionality of the Act's procedures for settling an exclusive bargaining
representative is, of course, well settled, and so is the validity of the inroads
which that procedure necessarily makes upon preexisting rights?' ,It is not
every interference with property rights which is within the Fifth Amend-
ment. . . . Inconvenience, or even some dislocation of property rights, may
be necessary in order to safeguard the right to collective bargaining." N. L. R. B.
v. Stowe Spinning Company, 336 U. S. 226, 232. Accordingly, I shall not condi-
tion my recommendation as urged by the Respondent.
In recommending that the Respondent, upon request, bargain collectively with
Local 1083 as exclusive bargaining representative of its employees in the appro-
priate unit herein described, it is anticipated, as indicated above, that the
Respondent will withhold exclusive recognition from the E. I. U., or any other
labor organization other than Local 1083, so long as Local 1083 continues to
remain the exclusive bargaining representative, and also to cease giving effect
to its contract with the E. I. U. Nothing herein, however, shall be construed as
requiring the Respondent to vary any wage, hour, seniority, or other substantive
features of its relations with its employees which the Respondent has estab-
lished in the performance of that contract or any modification or supplement
thereof or to prejudice the assertion by these employees of any rights they may
have under such agreement.
as Cf American Newspaper Publishers Association v. N. L. R. B., 193 F. 2d 782 (C. A.
7), where the court upheld the exercise of the Board's discretion to refuse to decide every
issue tendered by a complaint where, as the court said, the "Board merely refused to con-
sider what at best would be cumulative evidence of an unfair labor practice already found."
z3 See Chrysler Corp., 15 NLRB 1303, 1309; Boston Machine Works Co., supra; C. Hsite-
brant Dry Dock Company, Inc., et al., 98 NLRB 1275; cf. National Licorice Co. V.
N. L. R. B., 309 U. S. 350.
24 N. L . R. B. v. Jones A Laughlin Corp., supra; Pittsburgh Plate Glass Company , supra;
J. I. Case Co. V. N. L. R. B., 321 U. S. 332; Medo Photo Supply Corp., supra; May Depart-
ment Stores Co. v. N. L. R. B., 326 U. S. 376.
KEARNEY & TRECKER CORPORATION 1599
Upon the basis of the foregoing findings of fact and upon the entire record
in the case , including the record in Case No . 13-RC-1900 , I make the following :
CONCLUSIONS OF LAw
1. Local 1083, International Union, United Automobile, Aircraft & Agricul-
tural Implement Workers of America, CIO, and Employees Independent Union,
C. U. A., are labor organizations within the meaning of Section 2 (5) of the
Act.
2. All production and maintenance employees at the Respondent's plant at
West Allis, Wisconsin, excluding officers of the corporation, department heads,
time-study men, foremen, assistant foremen, office employees, safety men, stu-
dents, patternmakers, patternmaker apprentices, professional employees, guards,
and all supervisors as defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9 (b) of the Act.
3. Local 1083, International Union, United Automobile, Aircraft & Agricul-
tural Implement Workers of America, CIO, was on October 31, 1951, and at all
times thereafter has been and is, the exclusive representative of all employees
In the aforesaid appropriate unit for the purposes of collective bargaining,
within the meaning of Section 9 (a) of the Act.
4. By refusing on November 2, 1951, and at all times thereafter, to bargain
collectively with Local 1083, International Union, United Automobile, Aircraft
& Agricultural Implement Workers of America, CIO, as the exclusive representa-
tive of its employees in the aforesaid appropriate unit, the Respondent has
engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (5) of the Act.
5. By the aforesaid refusal to bargain, the Respondent has interfered with,
restrained, and coerced its employees in the exercise of the rights guaranteed
by Section 7 of the Act, and is thereby engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]
Appendix A
NOTICE To ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE wlla. bargain collectively upon request with LOCAL 1083, INTERNATIONAL
UNION, UNITED AUTOMOBILE, AIRCRAFT & IMPLEMENT WORKERS OF AMERICA,
CIO, as the exclusive representative of all employees in the bargaining unit
described below with respect to wages, rates of pay, hours of employment,
or other conditions of employment, and, if an understanding is reached,
embody such understanding in a signed agreement. The bargaining unit is:
All production and maintenance employees at our plant at West
Allis, Wisconsin, excluding officers of the corporation, department
heads, time-study men, foremen, assistant foremen, office employees,
safety men, students, patternmakers, patternmaker apprentices, pro-
fessional employees, guards, and all supervisors as defined in the Act.
1600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE wiLL Nov in any manner interfere with the efforts of the above- Tamed
union to bargain collectively with us, or refuse to bargain with said union,
as the exclusive representative of all our employees in the bargaining unit
set forth above.
Ks NEY & TRECKEa CORpORATTON,
Employer.
By ----------------------------------------
(Representative) (Title)
Dated --------------------
This notice must remain posted for sixty ( 60) consecutive days from the
date hereof, and must not be altered, defaced , or covered by any other material.
PENNSYLVANIA DUTCH FARMS , INC. and AMALGAMATED MEAT CUTTERS
& BUTCHER WORKMEN OF NORTH AMERICA , A. F. L . Case No. 4-
CA-456. December 31,1952
Decision and Order
On September 18, 1951, Trial Examiner David F. Doyle issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions and a supporting brief.
On October 8, 1951, the Respondent moved to reopen the record, on
the ground that it had newly discovered certain evidence. Pursuant
to a Board Order granting Respondent's motion and remanding the
case, a further hearing was held by Trial Examiner Doyle on the
issues raised in Respondent's motion. On October 13, 1952, he issued
his Supplemental Intermediate Report on this proceeding, affirming
his previous findings, but adding another finding, and making the
same recommendations set forth in the Supplementary Intermediate
Report attached hereto. Thereafter, the Respondent again filed ex-
ceptions 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 Houston, Murdock, and Styles].
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 Supplementary Intermediate Report, the excep-
tions and briefs, and the entire record in the case, and hereby accepts
the findings, conclusions, and recommendations of the Trial Examiner.
101 NLRB No. 245.