Midwest Piping and Supply Co., Inc.

National Labor Relations Board - Board Decisions

Sep 21, 1945

63 N.L.R.B. 1060 (N.L.R.B. 1945)

In the Matter Of MIDWEST PIPING AND SUPPLY CO., INC., and UNITED
STEELWORKERS OF AMERICA, CIO
Case No. 14-C--882.-Decided September 21, 1945
Miss Fannie M. Boyls, Mr. Hugh D. McNew, and Miss Helen F.
Humphrey, for the Board.
Fordyce, White, Mayne, Williams cC Hartman, by Mr. N. W. Hart-
man, of St. Louis, Mo., for the respondent.
Messrs. McConnell Barr, Robert McVay, and Victor B. Harris, all
of St. Louis, Mo., for the Steelworkers.
Mr. Daniel D. Ca.rmell, by Mr. Russell Packard, of Chicago, Ill., and
Mr. James E. Crowe, of St. Louis, Mo., for the Steamfitters.
Mr. David V. Easton, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon a fourth amended charge duly filed on September 9, 1944, by
United Steelworkers of America, CIO, herein called the Steelworkers,
the National Labor Relations Board, herein called the Board, by its
Regional Director for the Fourteenth Region (St. Louis, Missouri),
issued its complaint dated September 9, 1944, against Midwest Piping
and Supply Co., Inc., St. Louis, Missouri, he called the respondent,
alleging that the respondent had engaged in and was engaging in
unfair labor practices affecting commerce, within the meaning of Sec-
tion 8 (1) and (3) and Section 2 (6) and (7) of the Naitonal Labor
Relations Act, 49 Stat. 449, herein called the Act. Copies of the com-
plaint and the fourth amended charge, together with notice of hearing
thereon, were duly served upon the respondent, the Steelworkers, and
International Association of Steam and Gas Fitters of the' United
States and Canada, Local 562, and Auxiliary Local 562, United Asso-
ciation of Steam, Gas, Refrigeration and Service Fitters and Pipe
Fabricators, affiliated with the American Federation of Labor, herein
called the Steamfitters.
With respect to the unfair labor practices, the complaint alleged
in substance : (1) that from and after 1937, the respondent (a) spon-
63 N L. R. B., No. 163.
1060
MIDWEST PIPING AND SUPPLY CO., INC. 1061
sored, assisted, encouraged, and supported the Steamfitters; (b) urged,
persuaded, and warned its employees to become and remain mem-
bers of, or to procure work permits from, the Steamfitters, and
threatened its employees with discharge or other reprisals if they
Tefused to join or assist the Steamfitters; (2) that from and
after January 1943, the respondent (a) interrogated its employees
concerning their union affiliations; (b) urged, persuaded, and
warned its employees to refrain from assisting, becoming, or
remaining members of the Steelworkers; (c) threatened its em-
ployees with discharge or other reprisals if they joined or assisted
the Steelworkers; (d) campaigned for the Steamfitters and against the
Steelworkers; and (e) discriminated in regard to the conditions of
employment of employees because of their membership in or assist-
ance to the Steelworkers, or their failure to join or assist the Steam-
fitters; (3) that the respondent discharged Fred C. Kitchell and Ray-
mond J. Wilson in November 1943, and Edward Hoffman in February
1944, for the reason that each of them joined and assisted the Steel-
workers and refused to join and assist the Steamfitters, and has since
refused to reinstate Kitchell and Hoffman; and (4) that, by the fore-
going acts, the respondent interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7 of
the Act. On September 18, 1944, the respondent filed its answer, deny-
ing that it had engaged in the unfair labor practices alleged in the
complaint.
Pursuant to notice, a hearing was held on various days between
September 20 and 28, 1944, at St. Louis, Missouri, before J. J. Fitz-
patrick, the Trial Examiner duly designated by the Chief Trial Exam-
iner. The Board, the respondent, the Steelworkers, and the Steam-
fitters were represented by counsel and participated in the hearing.
Full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing on the issues was afforded all parties.
At the close of the hearing, the Trial Examiner granted, without objec-
tion, a motion by counsel for the Board to conform the pleadings to the
proof in regard to formal matters. The respondent then moved to
dismiss the entire complaint for failure of proof. The Trial Exam-
iner reserved ruling on the motion and later denied it in his Inter-
mediate Report. During the course of the hearing, the Trial Exam-
iner ruled upon numerous other motions and objections to the admis-
sion of evidence.' After the close of the hearing, upon his own motion,
i In a brief filed with the Trial Examiner , the respondent moved to dismiss the complaint
on the ground that the "Appropriation Rider" (Labor-Federal Security Appropriation Act,
Public Law 373, approved June 28, 1944 ) precluded the use of any Board funds for the
purpose of the instant proceeding. In his Intermediate Report, the Trial Examiner denied
this motion. The ruling is hereby affirmed. It is clear that, among other things, the
contract between the respondent and the Steamfitters , upon which our unfair labor practice
findings herein are based , is not covered by said Rider because the charge herein, upon
which the supplemental complaint is based, was filed within 3 months of its execution.
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD'
the Trial Examiner ordered certain corrections made in the Transcript
of Record. The Board has reviewed all the rulings of the Trial
Examiner and finds no prejudicial error. The rulings are hereby
affirmed insofar as they are consistent with our findings, conclusions,
and order set forth below.
On January 9, 1945, the Trial Examiner issued his Intermediate
Report, copies of which were duly served upon all parties, in which he'
found that the respondent had engaged in and was engaging in unfair
labor practices affecting commerce, within the meaning of Section 8
(1) and (3) and Section 2 (6) and (7) of the Act. He recommended
that the respondent cease and desist from its unfair labor practices,
and that it take certain affirmative action designed to effectuate the
policies of the Act. He further recommended that the complaint be
dismissed insofar as it alleged that Kitchell and Hoffman were dis-
criminatorily discharged. Exceptions to the Intermediate Report and
supporting briefs were filed by the respondent and the Steamfitters.
Thereafter, on February 17, 1945, upon a motion by the Steelworkers
to adduce additional testimony, the Board ordered that the record
herein be reopened and that a further hearing be held, and remanded
the case to the Regional Director for the purpose of such further hear-
ing. Upon a supplemental charge dated and filed March 12, 1945, the
Board, by its Regional Director, issued its supplemental complaint,
dated March 13, 1945, against the respondent, alleging that the re-
spondent had engaged in certain additional unfair labor practices
affecting commerce, within the meaning of Section 8 (1) and Section 2
(6) and (7) of the Act. Copies of the supplemental complaint and
the supplemental charge, together with notice of a further hearing,
were duly served upon the respondent, the Steamfitters, and the Steel-
workers.
With respect to the additional unfair labor practices, the supple-
mental complaint alleged, in substance, that : (1) from on or about
September 30,1945, the respondent knew that the Steelworkers claimed
to represent a majority of the employees in departments 1 and 2 and
in the stores department, and from about October 3, 1944, had notice
that the Steelworkers had filed with the Board a representation peti-
tion covering employees in said departments; (2) on or about Decem-
ber 30, 1944, the respondent, knowing that the Steamfitters did not
represent a majority of the employees in the afore-mentioned depart-
ments, entered into a closed-shop contract with the Steamfitters as
the statutory representative of said employees, and thereby encouraged,
supported, and assisted the Steamfitters; and (3): the contract thus
executed is invalid and interfered with, restrained, and coerced the
respondent's employees in the exercise of the rights guaranteed in
Section 7 of the Act.
MIDWEST PIPING AND SUPPLY Co., INC. 1063
On March 30, 1945, the respondent filed its answer to the supple-
mental complaint denying the commission of any unfair labor prac-
tices, but admitting the execution of a closed-shop contract with the
Steamfitters after having notice that the Steelworkers also claimed to
represent a majority of the employees covered by the contract and
had filed with the Board on or about October 3, 1944, a petition for
certification of representatives of said employees. The answer affirma-
tively averred that (1) no proof of majority in the claimed unit was
ever presented by the Steelworkers; (2) the respondent was advised
that no action would be taken in the representation proceeding be-
cause of the pendency of the present complaint proceeding; and (3)
that the contract of December 30, 1944, was signed after adequate
proof had been submitted that the Steamfitters represented a majority
of the employees covered thereby.
Pursuant to notice, a further hearing was held at St. Louis, Missouri,
on April 2, 1945, before J. J. Fitzpatrick, the Trial Examiner duly
designated by the Chief Trial Examiner. The Board, the respondent,
the Steamfitters, and the Steelworkers were represented by counsel
and participated in the hearing. Full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence bear-
ing on the issues raised by the supplemental complaint was afforded
all the parties. At the opening of the hearing, the Trial Examiner
denied a motion previously filed by the Steamfitters to make the allega-
tions of the supplemental complaint more definite and certain. At the
close of the hearing, he granted, without objection, a motion by counsel
for the Board to conform the pleadings to the proof as to formal
matters. During the course of the hearing the Trial Examiner ruled
on other motions and objections to the admission of evidence. The
Board has reviewed all the rulings of the Trial Examiner made at this
hearing and finds no prejudicial error. The rulings are hereby
affirmed.
On April 26, 1945, the Trial Examiner issued his Supplemental In-
termediate Report, copies of which were duly served upon all parties,
in which he found that the respondent, by entering into a new contract
with the Steamfitters, had engaged in and was engaging in an unfair
labor practice, within the meaning of Section 8 (1) and Section 2 (6)
and (7) of the Act. He recommended, inter alia, that the respondent
cease and desist from (a) recognizing the Steamfitters as the repre-
sentative of any of the employees in the unit covered by the contract
until that organization shall have been certified as such by the Board,
and (b) giving effect to said contract until such time. Exceptions to
the Supplemental Intermediate Report and supporting briefs were
filed by the respondent and the Steamfitters.
Pursuant to notice, on July 17, 1945, the Board heard oral argu-
ment at Washington, D. C. The respondent and the Steamfitters were
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
represented by counsel and participated in the argument; the Steel-
workers did not appear.
The Board has considered the exceptions to the Intermediate Report
and to the Supplemental Intermediate Report, the briefs filed, and the
contentions advanced at the^oral argument before the Board, and, inso-
far as the exceptions are inconsistent with our findings, conclusions,
and order set forth below, finds them to be without merit.'
Upon the entire record in the case, the Board makes the following.-
FINDINGS OF FACT
I. TIIE BUSINESS OF TIIE RESPONDENT
The respondent. Midwest Piping and Supply Co., Inc., a Missouri
corporation, is engaged in the manufacture of welded fittings and
bomb casings and in the fabrication of piping. Its principal office and
place of business is located at St. Louis, Missouri, where it operates
3 plants or.departments, employing about 1,600 workers. During the
fiscal year ending February 29, 1944, it purchased raw materials for its
fabricating and manufacturing processes valued at about $50,000, of
which approximately 90 percent was obtained from points outside the
State of Missouri. During the same period the respondent manufac-
tured products valued at more than $50,000, of which 75 to 90 percent
was sent to destinations outside the State of Missouri. -
II. THE ORGANIZATIONS INVOLVED
United Steelworkers of America, affiliated with the Congress of
Industrial Organizations, and International Association of Steam and
Gas Fitters of the United States and Canada, Local 562, and Auxiliary
Local 562, United Association of Steam, Gas, Refrigeration and Service
Fitters and Pipe Fabricators, affiliated with the Americaii Federation
of Labor, are labor organizations, admitting to membership employees
of the respondent.
0
2 on September 11, 1945 , the respondent filed with the Board a motion , in which the
Steamftters joined, to reopen the record to adduce evidence that on September 6, 1945,
the respondent and the Steamfitters executed a "members only" contract which in effect
supersedes their union shop contract of December 30, 1944, hereinafter discussed . Assum-
ing, without deciding, the correctness of the contents of the offer of proof, it does not
affect our findings, conclusions , and order hereinafter set forth . Accordingly , the motion
is hereby denied . However , we take occasion to point out that our order does not require
the respondent to take any affirmative action which it has already taken and which is in
compliance with the terms of our order.
MIDWEST PIPING AND SUPPLY CO., INC. 1065
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
1. Events preceding the Settlement agreement
The respondent is normally engaged in the manufacture of welded
fittings and fabrication of piping in two,departments or plants in
the city of St. Louis, referred to herein as plants 1 and 2. It also
conducts a store or warehouse in plant 1. During the latter part of
1942, the respondent began the manufacture of bomb casings in an-
other building on its premises, referred to herein as plant 3. Since
1937, the respondent has been in contractual relationship with the
Steamfitters under consecutive "members only" agreements. The last
of these agreements, covering members of the Steamfitters at all three
plants, had a stated terminal date of December 31, 1943, subject to an
automatic renewal clause. Early in the fall of 1943, the Steamfitters
notified the respondent that it desired to negotiate a new agreement
for the year 1944. At about the same time, the Steelworkers wrote
the respondent, asserting an interest in the employees in plant 3 and
requesting an opportunity to be heard in the event of any negotia-
tions by the respondent with any other labor organization. On
November 3, 1943, the respondent notified the Steelworkers that all
three of its plants were under contract with the Steamfitters until
December 31, 1943, and that it was the respondent's understanding
that the Steamfitters represented considerably more than a majority
of its hourly paid employees. On November 6, 1943, the respondent,
replying to the Steamfitters' previous request to negotiate a new con-
tract, suggested a meeting for November 12. However, as a result
of the events discussed below, the respondent and the Steamfitters
did not then meet or sign a new agreement covering any of the plants,
although they continued in effect, after December 31, 1944, their old
"members only" contract insofar as it applied to plants 1 and 2.s
On or before November 13, 1943, the Steelworkers filed with the
Board's Regional Office a petition for investigation and certification
of representatives of employees in plant 3.4 During the same month
and in December 1943, the C. I. O. filed with the Board certain unfair
labor practice charges alleging (a) that the respondent had assisted
8 As hereinafter indicated , the respondent and the Steamfitters considered that their
contract ending December 31, 1943, had been automatically renewed in accordance with
its terms
4 Case No. 14-11-823.
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Steamfitters in its organizational activities and interfered with
similar activities of the Steelworkers,5 and (b) that Fred C. Kitchell
and Raymond J. Wilson were discriminatorily discharged on or about
November 19 and 29, 1943, respectively. On or about January 1, 1944,
the Board, the respondent, and the Steelworkers entered into a settle-
ment agreement, disposing of the aforementioned charges."
2. Events subsequent to the settlement agreement
Under the terms of the settlement agreement, the respondent offered
reinstatement with back pay to Raymond J. Wilson and posted in its
plants notices to the effect that the respondent would not (a) inter-
fere with its employees in the exercise of their right to engage in
concerted activities, (b) discourage membership in the Steelworkers,
and (c) encourage membership in the Steamfitters; and that the re-
spondent would instruct all officials and supervisory employees not
to interfere in any manner with employees in the exercise of their
right to self-organization. Pursuant thereto, the respondent caused
to be circulated among its supervisory employees a notice, signed by
its president, which recited :
This is to notify you that in accordance with an agreement
reached with the U. S. National Labor Relations Board and effec-
tive immediately all "officials and agents" which means you and
those working'under you in the capacity of foreman or super-
visors with authority to hire, promote, discharge, discipline, or
otherwise effect changes in the status of employees, or effectively
recommend such action, are instructed that you (or they) shall
not in any manner interfere with any employees in the exercise of
their rights to self-organize, to form, join, or assist labor organ=
zations.
Please see that these instructions are passed on to all interested
parties under your direction and are observed by all concerned.
At about the same time, the respondent's president also told the
superintendents to notify all subordinate supervisors that any such
supervisors who engaged in organizational activity during working
hours would be subject to discharge. On or about January 27, 1944,
the respondent posted certain "Rules and Regulations," which, among
"The record shows, as found by the Trial Examiner , that although the Steamfitters had
a "members only " contract , the respondent permitted , encouraged , and assisted it to collect
work permit fees from non-member employees as a condition of remaining in the respond-
ent's employ . This practice began in 1938 and continued until the summer of 1942 when
the Steelworkers began to organize.
8 The settlement agreement , among other things, provided for the reinstatement with back
pay of Raymond.J. Wilson, but made no reference to the discharge of Kitchell , although
his case was discussed during the preliminary negotiations Under all the circumstances,
we are satisfied and find that the settlement agreement was intended by the parties to
disposed of the alleged discrimination against Kitchell without affording him any relief.
I
MIDWEST PIPING AND SUPPLY CO., INC. 1067
things, prohibited under penalty of discharge employee "participation
in organizational activities of any kind on company time and
property." '
During the period following the settlement agreement, both the
Steelworkers and the Steanfitters engaged in considerable organiza-
tional activity especially among the employees in plant 3 for whom an
election, previously directed by the Board in Case No. 14-R-823,8 had
already been scheduled. The record shows, as found by the Trial
Examiner, that E. J. McKinnon, a leadman of the furnace group in
plant 3, actively campaigned in behalf of the Steamfitters. He
solicited a number of the employees to join the Steamfitters and
warned two named employees that if they voted for the Steelworkers
in the pending election, their jobs would be changed or they would be
discharged. McKinnon told another employee, who was an adherent
of the Steelworkers, that if the Steelworkers won the election, it would
result in a loss of his vacation with pay.
On February 3, 1944, the Board -conducted the afore-mentioned
election among the employees in plant 3, which was won by the Steel-
workers .9 Thereafter, the Steelworkers and Steamfitters continued
their rival campaigns among the employees at plants 1 and 2, during
which the following events, alleged in the complaint as unfair labor
practices, occurred :
On or about February 17, 1944, the respondent terminated the em-
ployment of Edward Hoffman, a member of the Steelworkers whose
case is discussed below. •
During early May 1944, Shelby Ruez, a leadman, told Ernest Powell,
a welder in plant 2 who at the time was wearing a Steelworkers' but-
ton, that he "got the wrong button on," that " [respondent] is an
American Federation of Labor Shop. If you [Powell] are ever going
to be a welder you cannot have that kind of button and get anywhere."
Towards the end of the month, Ruez and another welder prevailed
upon Powell to join the Steamfitters and to pay part of his initiation
fee. On or about September 15, "Zeet" Johnson, Powell's foreman,
urged Powell to pay-the unpaid balance of his fee and stated that "it
will make it easier on you and you will get further along, further
advanced." Powell then refused to make further payment. The
following night Johnson told him that he was being demoted, and
that he would have to work on "inside beads," a type of welding
7 We have previously held that a regulation like the respondent 's, is per se violative
of the Act insofar as it is applicable to non -working periods ( see Matter of Republic Avia-
tion Corporation, 51 N. L. R. B. 1186, enforced 142 F. ( 2d) 193 ( C. C. A. 2 ), affirmed 65
S. Ct. 982. However , we make no unfair labor practice finding with respect to the re-
spondent ' s rule since the issue was not raised in the pleadings or at the hearing
8 Matter of Midwest Piping and Supply Co., 54 N. L R. B 744.
8 One hundred ninety -three votes were cast for the Steelworkers and 135 for -the Steam-
fitters. On February 23, 1944, the Board certified the Steelworkers as the representative
of the employees in plant 3.
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
usually performed by beginners. Powell refused to do this work,
"pulled" his card, and reported the matter to Arthur Harned, night
superintendent of plant 2. Harned told Powell that he would
straighten the matter out but did not then tell him to return to work.
Powell, after waiting in the plant for an hour and a half without
receiving any instructions, left the plant. When he returned to work
the next day, Powell found that his card had been removed from the
rack. He again took up the matter with Harped, who told him that
he was being laid off for 5 days because he had "walked off" the job.
Whereupon Powell then grieved to Welding Superintendent Leonard
and, after a conference between Leonard and Harped, was returned
to his old job. There was no showing that Powell suffered any loss
of pay as a result of Johnson's attempt to demote him.
Sometime during September 1944, "Big Bill" Caldwell, a non-super-
visory welder in plant 2, took a number of employees to the superin-
tendent's office, during the latter's absence, and there, in the presence
of a leadman, had them sign Steamfitters' application cards.
On the day following the close of the original hearing in this pro-
ceeding, the Steamfitters, by letter dated September 29, 1944, requested
the respondent to negotiate with respect "to a continuance of our
contract covering various classifications of employees in your plant," io
and indicated, among other things, that it would request the inclusion
of a "union shop" clause in its new contract rather than the "members
only" provision contained in all its previous contracts. By letter
dated September 30, 1944, the Steelworkers advised the respondent
that it represented a majority of the employees in plants 1 and 2 and
requested a conference for the purpose of negotiating a collective
bargaining agreement covering these employees. The letter further
requested the respondent to refrain from executing any agreement
with "any other labor organization until such time as these employees
have had an opportunity to exercise their rights under the National
Labor Relations Act." On the same day, the Steelworkers filed with
the Board a representation petition covering these employees 11 On
October 2, 1944, the respondent acknowledged receipt of the Steel-
workers', letter, and asked that it produce "substantiating evidence
that [the Steelworkers] now represents a majority of the employees."
The Steelworkers did not comply with this request. Shortly there-
after, by letter dated October 3, 1944, a Field Examiner for the Board
advised the respondent that the Steelworkers had filed a representa-
1o We find, as did the Trial Examiner, that this letter referred to the "members only"
contract covering plants 1 and 2, which had a stated terminal date of December 31, 1943.
As mentioned above, however, the respondent and the Steamfitters regarded this contract
as being in effect during 1944.
""Case No 14-R-1078. It is noted that on July 29, 1944, the Steamfitters also filed a
representation petition covering employees at these 2 plants, docketed as Case No.
14-R-1030. Both cases are now pending before the Board and awaiting disposition of the
instant complaint proceedings.
MIDWEST PIPING AND SUPPLY CO., INC. 1069
tion petition and that she would, at some future date, arrange a con-
ference at which the interested parties could appear and present their
positions on the unit and other issues raised by the petition. It does
not appear that the contemplated conference took place.
On October 12, 1944, the respondent replied to the Steamfitters'
bargaining request of September 29, and agreed to confer with the
Steamfitters concerning a new agreement. During December 1944,
the respondent and the Steamfitters had a number of bargaining con-
ferences. On December 30, after the Steamfitters submitted mem-
bership cards which indicated that it represented a majority of the
hourly production and maintenance employees in plants 1 and 2 and
the store department, the respondent and the Steamfitters concluded
a "union shop" contract covering said employees. This contract was
to be effective from January 1, 1945, to December 31, 1947.
3. Conclusions
The Trial Examiner found that subsequent to the settlement agree-
ment and prior to the original hearing herein, the respondent, by the
above-described activities of supervisors McKinnon, Ruez, Harned,
Johnson, and employee Caldwell, violated the terms of the settlement
agreement and interfered with, restrained, and coerced its employees,
within the meaning of Section 8 (1) of the Act. We do not agree.
The record shows that during the period in question, the respondent
had in effect a policy of neutrality, which was publicly made known
to the rank and file employees as well as to all supervisory employees.
As stated above, the respondent posted the neutrality notices required
by the settlement agreement' and gave special instructions and warn-
ings to its supervisory personnel not to violate its announced neutral
policy. It is true that a few minor supervisory employees, who were
members of the Steamfitters, campaigned on behalf of that organiza-
tion in derogation to the respondent's known policy, but it is'clear that
the respondent did not condone or ratify such prohibited conduct.
Indeed, the only such violation brought to the attention of higher
management was immediately remedied. In our opinion the respond'
ent's conduct adequately brought home to the employees its neutral
position so that they had no just cause to believe that the supervisory
employees, who thereafter violated this neutrality by the aforemen-
tioned conduct, were acting for and on behalf of management. Under
these circumstances, we find, contrary to the Trial Examiner, that
the respondent did not violate the Act by the activities of McKinnon,
Ruez, Harned, Johnson,' and Caldwell.l2
We agree, however, with the Trial Examiner that after the close
of the original hearing herein, the respondent violated the Act by
12 See Matter of Houston Shipbuelding Corporation, 56 N. L. R. B. 1684.
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
entering into a "union shop" agreement with the Steamfitters, The
respondent knew, at the time that the contract was executed, that there
existed a real question concerning the representation of the employees,
in question. The record shows that both the Steamfitters and the
Steelworkers had vigorously campaigned in the plant, had apprised
the respondent of their conflicting majority representation claims, and
had filed with the Board conflicting petitions, which are still pending,
alleging the existence of a question concerning the representation of
the employees covered by the agreement. Under such circumstances,
the Congress has clothed the Board with the exclusive power to inves-
tigate and determine representatives for the purposes of collective
bargaining. In-the exercise of this power, the Board usually makes
such determination, after a proper hearing and at a proper time, by
permitting employees freely to select their bargaining representatives
by secret ballot.' In this case, however, the respondent elected to dis-
regard the orderly representative procedure set up by the Board under
the Act, for which both unions had 'theretofore petitioned the Board,
and to arrogate'to itself the resolution of the representation dispute
against the Steelworkers and in favor of the Steamfitters11 In our
opinion such conduct by the respondent contravenes the letter and the
spirit of the Act, and leads to those very labor disputes affecting
commerce which the Board's administrative procedure is designed to
prevent.
We further' find that the respondent's afore-mentioned conduct also
constitutes a breach of its obligation of neutrality. As we have previ-
ously held, a neutral employer , on being confronted with conflicting
representation claims by two rival unions, "would not negotiate a con-
tract with one of them until its right to be recognized as the collective
bargaining representative had been finally determined under'the pro-
cedure set up under the Act." 14 Here, the respondent knew that the
Board already had jurisdiction over the existing question concerning
the representation of the employees covered by the contract, and that,
in accordance with its usual practice, the Board would not proceed to
a resolution of that question until it had passed upon the then pending
original complaint herein, hearing on which had already been con-
cluded. That no unfair labor practices are found herein on the orig-
v
13 Respbndent relied on signed membership cards as proof of the Steamfitters ' claim of
majority status . Under the circumstances, we do not regard such proof as conclusive.
Among other things, it is well known that membership cards obtained during the heat of
rival organizing campaigns like those of the respondent ' s plants, do not necessarily reflect
the ultimate choice of a bargaining representative ; indeed , the extent of dual membership
among the employees during periods of intense organizing activity is an important unknown
factor affecting a determination of majority status, which can best be resolved by a secret
ballot among the employees.
14 See Matter of Elastic Stop Nut Corporation , 51 N L . R B. 694 , enf'd 142 F. (2d)
371 (C. C. A. 8 ) ; Mattel of Keystone Steel and Ware Company , 62 N. L. R. B. 683.
MIDWEST PIPING AND SUPPLY CO., INC. 1071
inal complaint does not alter the effect of the respondent's later breach
of its neutrality obligation.
We are of the opinion and find that the respondent, by executing a
"union shop" agreement with the Steamfitters in the face of the repre-
sentation proceedings pending before the Board, indicated its approval
of the Steamfitters, accorded it unwarranted prestige, encouraged
membership therein, discouraged membership in the Steelworkers, and
thereby rendered unlawful assistance to the Steamfitters, which inter-
fered with, restrained, and coerced its employees in the exercise of
rights guaranteed in Section 7 of the Act 15
B. Alleged discrimination against Edward Hoffman
On March 15, 1943, Edward Hoffman, having attended a welding
school, was employed by the respondent to weld "inside beads," a
type of work usually assigned to beginner welders. In May 1943,
Hoffman took and failed a'flat welding test. He repeated the test in
June and, having passed it, was given the more skilled work of "flush.
ing." After 2 or 3 months, he was promoted to a further skilled weld-
ing operation known as "completing." ' In August, in accordance with
the respondent's custom, Hoffman was again required to take the flat
test which he failed. He took the test again in October and passed it,
but because his work on flushing and completing was inferior and had
shown no improvement,. he was transferred back to inside beads, at
which work he remained until his separation on Vebruary 17, 1944,
which is alleged to have been discriminatory.
In th, last of October.' or the first of November Iliofman joined, the
Steelworkers and thereafter was active in soliciting members. He also
wore his union button at work. About the last of November Us f ore-
man questioned him as to his membership in the Steelworkers and
indicated that that organization, if successful in getting into the plant,
would be harmful for the employees.
From, the time he returned to inside beads until ^ the latter part of
January 1944, there is nothing specific in the record relative to Hoff-
man, except that on one occasion in December his leadman, Ralph
Rohlfing, found him asleep on the job."' However, Superintendent
Leonard was dissatisfied with the number of poor fittings turned out
by the welders and the "lack of harmony" in the third shift of plant 2.
To remedy the situation and eliminate the complaints about the weld-
35 See Matter of Elastic Stop Nut Corporation, supra; Matter of Keystone Steel and
Wire Company , supra; Matter of John Engel horn & Sons , 42 N. L. R. B 866 , enf'd 134 F
(2d) 553 (C. C A. 3) ; Matter of Phelps Dodge Copper Products Corporation , Habsrshaw
Cable and Wire Divisson, 63 N L R B 686
16 Rohlfing testified without contradiction that he found Hoffman asleep in December
and on one or two prior occasions . On cross-examination Rohlfing testified that other em-
ployees also were observed by him to be asleep during working hours on-this third shift.
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing, Leonard removed Ralph Rohlfing, and appointed Robert Hodges
as leadman 17 Hodges spent a number of days becoming acquainted
with the work and the welders. About the end of January, presum-
ably at the time when the respondent posted its Rules and Regulations
heretofore referred to, prohibiting among other things "unnecessary.
conversations" during working hours, Hodges criticized Hoffman and
a pressman by the first name of Eddie is for "unnecessary talking" and
"visiting" and asked them to desist from such conduct. Thereafter,
Hodges noted that Hoffman spent unnecessarily long periods in the
rest room, prolonged his half hour lunch period by visiting sometimes
with other employees who had returned to work, and frequently quit
a few minutes or a half hour before 8 a. m. when the shift terminated.
Hodges remonstrated with Hoffman about these infractions of the
rules, but Hoffman insisted that he was getting out the normal required
quota of 80 fittings for 8 hours. On one occasion when either Fore-
man McMillan or Hodges criticized Hoffman for not putting in enough
time, he answered that he owned a confectionery business and did not
have to work 19
As there was no improvement in Hoffman's attitude toward his
work, Hodges, about the middle of February at the suggestion of
Superintendent Leonard to whom he had reported Hoffman's actions,
decided to check the amount of work turned out each day by Hoffman,
especially in view of Hoffman's contention that he always turned out
the normal daily ,average of 80 fittings. With this in mind, Hodges
personally make a check and kept a record of Hoffman's time and pro-
duction from 12 ' midnight to 8 a. m. on February 16. Tl»- record
showed that Homan was away from his bc,oth a half bo' beyond
the lunch pericod, was gone from 4: 55 to 5: 15 and quit working at
7:55 a,. m..211' The next day, February 17, before Hoffman reported
for work, Hodges replaced the bin used by the second shift welder
whom Hoffman succeeded, with an empty bin. At lunch period this
bin with its contents was removed. It contained 40 to 50 fittings.2.
r' Leonard told Hodges that the amount of work the welders were turning out was satis-
factory but there were many complaints of defective welding
is Hodges was unable to give the pressman's last name. He testified that the man was
later transferred to another department.
19 At the time of the hearing and for some years prior thereto Hoffman owned a small
retail confectionery store which his wife operated.
zu The findings as to Hoffman ' s work attitude for the period from about January 15 to
February 16, 1944 , are based upon a reconciliation of the testimony of Hoffman, Leonard,
McMillan , and Hodges. Hoffman admitted that he had been criticized for talking too
much on February 15.
81 Hodges testified that he had Arthur Hester remove the bin at 3 30 a in on February
17, and that he [Hodges ] counted the fittings therein and found only 40. Hester did not
testify. On the other hand , Harlin Heath , a welder , but who on February 17 and for
some time prior thereto had been temporarily acting as a milling machine operator on the
third shift , testified that on that day, and prior to Hoffman ' s release , he took a bin of
fittings from Hoffman ' s booth "partly full" , that he did not count the fittings but esti-
mated the bin contained 50 to 60 fittings Hoffman testified that it was customary for
the milling machine operator to remove the fittings after he had worked on a batch of
MIDWEST PIPING AND SUPPLY CO.; INC. 1073
Hoffman returned from his lunch at 4: 30 and'worked until 6:'30 at
which time Hodges, after noting that there' were only 10 fittings in
the bin, got McMillan and the two of them came to Hoffman's booth.
Hodges, pointed to the box and asked Hoffman if he considered 10
fittings "three hours work." Hoffman insisted that up to that time
he had run 97 fittings, and pointed to numerous chalk markings on
a steel sheet in the booth. Hodges told Hoffman that a check which
he (Hodges) made revealed that Hoffman had run 40 fittings up to
lunch time, and since lunch only 10 fittings. He accused Hoffman of
loafing and failing to cooperate. After some further discussion,
mostly between Hodges and Hoffman, in which the latter intimated
that he would like to meet Hodges later outside and beat him up,'-2
Hoffman announced, "If you don't like what I am doing give me
my time." 23 Hoffman was then given his separation slip 24 and left
about 7 a. in., after being told that he could secure his pay later in ,
the morning. Hoffman has not since been employed by the respond-
ent. On February 26, in response to a written request from Hoffman
for a statement as to why his employment was terminated, the re-
spondent wrote him as follows :
Your employment with this company was terminated for the
following reasons :
For several months prior to the date of termination, your
foreman repeatedly directed your attention to infractions of the
rules insofar as you were carrying on needless conversation with
other employees and spending more than necessary time away
from your work. You were also reporting quantities of pro-
duction in error and doing inferior work. Each time you were
warned, you became abusive to your foreman.
In view of these unsatisfactory services, your foreman again
attempted to discuss the matter with you on the date of termina-
them ; that Heath , as well as one or two others, were the machine operators who worked
on his weldings, and that Heath removed the bin on February 17. Inasmuch as 10 fittings
an hour , or 80 for 8 hours, was considered normal , and 80 per day was the amount Hoffman
constantly reported on his card , we do not believe that Hoffman ran more than 40 fittings
from 12 midnight to 3 30 a m on the date in question , especially in view of the fact that
Hodges counted the fittings in the bin and Heath admittedly did not count them but merely
made an estimate.
2' Hoffman was angry at Hodges for calling Foreman McMillan.
23 Hoffman denied that he made the above statement about the respondent giving him his
time He testified that McMillan said to him, "I have a notion to write your time out,"
and he replied , " well, Al , if you feel that way about it you can write it out " An analysis
of the testimony of Hodges and McMillan shows that up to the time when the question of
Hoffman's severing his connection came up, McMillan took no part in the conversation.
For that reason , and because of Hoffman ' s previously displayed indifference to legitimate
criticism for violating the working regulations , Hodges' testimony corroborated by McMillan
is credited in the above respect
try The separation slip read in part, "you are to be laid off." Hoffman surrendered the
separation slip when he was paid Thereafter , McMillan drew a line through the words
above i ecited and inserted in lieu thereof, "quit "
1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion, and you again became very abusive and left your job one
hour before the regular quitting time. Your words a„ that time
were to the effect that you were resigning, and your termination
was effected accordingly.
The Trial Examiner found, and we agree, that Hoffman's termi-
nation was not discriminatory within the meaning of the Act. That
he was a poor craftsman is evidenced by his failure to pass the initial
flat welding test within a reasonable period of probation. When he
finally did pass this test and was given real welding work, he obviously
did not turn out satisfactory work or he would not,thereafter will-
ingly, as he testified, have accepted the lower grade work of inside
beads. Even on this type of welding his work continued to be of
poor grade. Others on the shift were doing inferior work also and
Hodges was put on the third shift as leadman with instructions to
eliminate this poor work. Hoffman resented Hodges' comment that
he was not giving 8 hours work and took the position that as long as
he made a showing of 80 fittings a day, regardless of their quality,
he was doing all that should have been expected of him. He made it
plain that he was not dependent on his job as he had other means of
support. When finally confronted with evidence that he was not
turning out even the 80 fittings he claimed, he became abusive and
stated that if the respondent did not like what he was doing it could
release him. Under the circumstances, the respondent was justified
in doing so.
C. The effect of the respondent's unfair labor practices on the prior
settlement agreement ,
We have heretofore held that where an agreement in settlement of
unfair labor practices has been reached with the participation of
agents of the Board, we shall, for reasons of policy, refrain from
considering the alleged unfair labor practices settled by the agree-
ment unless there has been a continuation of such practices or a breach
of the agreement.25
In the instant case, as found above, the record does not support
a finding that .the respondent breached the terms of the settlement
agreement by the discharge of Hoffman and by the activities of Mc-
Kinnon, Ruez, Johnson, Harned, and Caldwell. The only unfair
labor practice committed by the respondent subsequent to the settle-
ment agreement was its recognition of and contracting with the Steam-
fitters as the statutory representative of the employees in question.
Under the circumstances, we do not believe that effectuation of the
policies of the Act requires us, in the exercise of our discretion, to go
25 See Matter of Tulsa Boiler and Machinery Company, 23 N. L. R. B 846 , and cases
cited therein.
MIDWEST PIPING AND SUPPLY CO., INC. 1075
behind the settlement agreement. We shall therefore consider the
settlement agreement as disposing of the allegations of unfair' labor
practices prior to its date and, without passing on their merits, we
shall summarily dismiss the complaint as to them.
IV. TIDE. EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, A, above,
occurring in connection with the operations of the respondent de-
scribed in Section I, 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 practices within the meaning of the Act, we shall order that it
cease and desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act.
We have found that the respondent has unlawfully assisted the
Steamfitters and interfered with the Steelworkers by recognizing and
entering into a "union shop" contract with the Steamfitters as the
exclusive representative of its hourly employees in plants 1 and 2 and
the store department. Obviously, a free selection of a bargaining
representative cannot be made where recognition and a contract has
been accorded to one of the competing unions. We shall accordingly
order that the respondent cease and desist from recognizing the
Steamfitters as such exclusive representative unless and until it shall
have been certified as such by the Board. Since the contract of Decem-
ber 30, 1944, perpetuates the respondent's unlawful assistance to the
Steamfitters and precludes the .employees from presently exercising
their right to select a bargaining representative of their own choice,
we shall further order the respondent to cease giving effect to it or to
any extension, renewal, modification, or supplement thereof, unless
and until it shall have been certified by the Board as the exclusive
representative of the employees in plants 1 and 2 and the stores depart-
ment. Nothing herein, however, shall be construed as requiring the
respondent to vary any wage, hour, seniority, or other substantive
features of its relations with the employees themselves, which the
respondent has established in the performance of this contract, or to
prejudice the assertioii.by the employees of any rights they may have
under such agreement.
Upon the foregoing findings of fact, and upon the entire record
in the case, the Board makes the following :
662514-46-vol. 63-69
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF ,LAW
1. United Steelworkers of America, affiliated with the Congress of
Industrial'Organizations, and International Association of Steam and
Gas Fitters of the United States and Canada, Local 562,'and Aux-
iliary Local 562, United Association of Steam, Gas, Refrigeration,and
Service Fitters and Pipe Fabricators, affiliated with the American
Federation of Labor, are, labor organizations, within the meaning of
Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
4. The respondent has not discriminated with respect to the hire
and tenure of employment of Edward Hoffman, within the meaning
of Section 8 (3) of the Act:
ORDER
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respond-
ent, Midwest Piping and Supply Co., Inc., St. Louis, Missouri, and,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Recognizing International Association of Steam and Gas Fit-
ters of the United States and Canada, Local 562, and Auxiliary Local
562, United Association of Steam, Gas, Refrigeration and Service
Fitters and Pipe Fabricators, affiliated with the American Federation
of Labor, as the exclusive representative of any of its employees in
plants 1 and 2 and the stores department, for the purposes of collec-
tive bargaining unless and until said organizations, or either of them,
shall have been certified by the National Labor Relations Board as
the exclusive representative of such employees;
(b) Giving effect to its contract dated December 30, 1944, with
International Association of Steam and Gas Fitters of the United
States and Canada, Local 562, and Auxiliary Local 562, United Asso-
ciation of Steam, Gas, Refrigeration and Service Fitters and Pipe
Fabricators, affiliated with the American Federation of Labor, or to
any extension, renewal, modification, or supplement thereof, or to
any superseding contract with that labor organization or any organi-
zation or affiliate thereof, unless or until said organizations, or either
of them, shall have been certified by the Board as the representative
of the employees in plants 1 and 2, and the stores department;
MIDWEST PIPING AND SUPPLY CO., t NC. 1077
(c) In any like or related manner, interfering with, restraining,
or coercing its employees in the exercise of the right to self-organiza-
tion, to form labor organizations, to join or assist United Steelworkers
of America, affiliated with the Congress of Industrial Organizations,
or any other labW organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activities
for the purposes of collective bargaining, or other mutual aid or pro-
tection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Withdraw and withhold all recognition from International
Association of Steam and Gas Fitters of the United States and Canada,
Local 562, and Auxiliary Local 562, United Association of Steam, Gas,
Refrigeration and Service Fitters and Pipe Fabricators, affiliated with
the American Federation of Labor, as the exclusive representative of
any of its employees in plants 1 and 2, and the stores department, for
the purposes of collective bargaining with respect to rates of pay,
wages, hours of employment, and other conditions of employment,
unless and until said organizations, or either of them, shall have been
certified by the National Labor Relations Board as the representative
of such employees ;
(b) Post at its plant at St. Louis, Missouri, copies of the notice
attached hereto, marked "Appendix A." - Copies of said notice, to
be furnished by the Regional Director of the Fourteenth Region,
shall, after being duly signed by the respondent's representative, be
posted by the respondent immediately upon receipt thereof, and main-
tained by it for a period of sixty (60) consecutive days thereafter,
in conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the re-
spondent to insure that said notices are not altered, defaced, or covered
by any other material;
(c) Notify the Regional Director for the Fourteenth Region in
writing, within ten (10) days from the date of this Order, what steps
the respondent has taken to comply herewith.
AND IT is rURTI3ER ORDERED that the original complaint be, and it
hereby is, dismissed in its entirety. -
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to an Order of the National Labor Relations Board, and
in order to effectuate the policies of the National Labor Relations Act,
we hereby notify our employees that :
1. WE WILL NOT recognize International Association of
Steam and Gas Fitters of the United States and Canada, Local
1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
562, and Auxiliary Local 562, United Association of Steam, Gas,
Refrigeration and Service Fitters and Pipe Fabricators, affiliated
with the A. F. of L., as the exclusive representative of any of our
employees in plants 1 and 2 and the stores department for the
purposes of collective bargaining unless and until said organiza-
tions,'or either of them, shall have been certified by the Board as
the representative of such employees.
2. WE WILL NOT give effect to our contract dated Decem-
ber 30, 1944, with International Association of Steam and Gas
Fitters of the United States and Canada, Local 562, and Auxiliary
Local 562, United Association of Steam, Gas, Refrigeration and
Service Fitters and Pipe Fabricators, affiliated with the American
Federation of Labor, or to any extension, renewal, modification,
or supplement thereof, or to any superseding contract with said
labor organizations, or either of them, unless and until said organ-
izations, or either of them, shall have been certified by the Board
as the representative of the employees in plants 1 and 2 and the
stores department.
3. WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of their
right to self-organization, to form labor organizations, to join or
assist United Steelworkers of America, CIO, or any other labor
organization, to bargain collectively through representatives- of
their own choosing, and to engage in concerted activities for the
purposes of collective bargaining or other mutual aid or pro-
tection.
All our employees are free to become or remain members of United
Steelworkers of America, CIO, or any other labor organization. We
will not discriminate in regard to hire or tenure of employment or any
term or condition of employment against any employee because of
membership in or activity on behalf of any such labor organization.
MIDWEST PIPING AND SUPPLY CO., INC.,
(Employer)
By --------------------------------------------
(Representative ) (Title)
Dated ------------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.