National Container Corp.

National Labor Relations Board - Board Decisions

Apr 3, 1953

103 N.L.R.B. 1544 (N.L.R.B. 1953)

1544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Petitioner argues that the collective-bargaining agreement was
not, and that the parties did not intend that it should be, in effect on
the day it was executed. To support this assertion it argues that the
use of the word "from" in the phrase "from the effective date hereof"
was meant to exclude the day the contract was entered into, and that
the words "effective date" were used to signify the date of execution,
not the day the contract went into active operation.
This argument is clearly lacking in merit. It calls for the unreason-
able conclusion that the "effective date" of the contract is a day upon
which the contract is not in effect. Moreover, contrary to the Peti-
tioner's position, the sense of the word "from" is not always exclusive,
but it depends on the context and subject matter.' The word "from"
is here used together with the words "effective date." In that context
it would be unreasonable to construe the language of the agreement
before us to create a situation whereby the yearly period established
by the contract begins not on the day that the contract goes into effect,
but 1 day thereafter.
Accordingly, we find that the contract became effective on March 22,
and that its yearly term begins March 22 and runs through March 21.
Consequently, as the Mill B date was January 21, 1953, the petition
filed on that date was untimely and the contract bars an election.
IT IS HEREBY ORDERED that the petition filed herein be, and it hereby
is, dismissed.
3 In fact , in the very case cited by Petitioner , Taylor v. Brown, 147 U. S. 640 , the Court
held that the day "from" which the period was to be counted should be included in the
period and cites authorities which include and others which exclude the terminal day.
V. Miles Laboratories, Inc., supra , where the Board found that the parties intended
"from" to mean "from and including ." See also , Little Rock Furniture Manufacturing
Company , 80 NLRB 65 , where the Board found that the parties intended "to" to mean "to
and including."
NATIONAL CONTAINER CORPORATION and INDEPENDENT CORRUGATED
WORKERS UNION OF AMERICA, LOCAL No. 1, PETITIONER 1 and U. S.
CORRUGATED WORKERS UNION, LOCAL No. 444, INTERNATIONAL
BROTHERHOOD OF PULP, SULPHITE AND PAPER MILL WORKERS, AFL 2
NATIONAL CONTAINER CORPORATION and INDEPENDENT CORRUGATED
WORKERS UNION OF AMERICA, LOCAL No. 1 . Cases Nos. 2-RC-1839
and 2-CA-1436. April 3,1953
Decision and Order
On July 11, 1952, Trial Examiner Charles W. Schneider issued his
Intermediate Report in the above-entitled consolidated proceedings, a
1 Herein called Local 1.
2 Herein called Local 444.
103 NLRB No. 138.
NATIONAL CONTAINER CORPORATION 1545
copy of which is attached hereto, finding that the Respondent had not
engaged in any unfair labor practices and recommending that the
complaint be dismissed in its entirety. The Trial Examiner also rec-
ommended that Local 1's objections to the election be dismissed. There-
after, the Respondent, Local 444, Local 1, and the General Counsel
filed exceptions.8 The General Counsel and Local 1 also filed support-
ing briefs.
The Board 4 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed 5 The Board has considered the In-
termediate Report, the exceptions and briefs, and the entire record
in these cases, and hereby adopts the Trial Examiner's findings, con-
clusions , and recommendations, but only to the extent consistent with
our findings, conclusions, and decision herein.
1. The Trial Examiner found that the following incidents consti-
tuted conduct of the "character of interference" with the election of
April 14, 1950, which ordinarily would have provided an adequate
basis for setting aside the election :
(1) The disparate treatment accorded representatives of Local
1 and Local 444 in solicitation on the premises; (2) permitting
nonemployees to electioneer on company time and premises but
forbidding employees to do so; (3) Foreman Chupa's threats to
employee Irizarri to the effect that the latter would be "out of a
job" if Local 444 won the election, and to Irizarri's helper,
Neives, that Neives would also lose his job if he "listened to"
Irizarri; (4) "Scotty" Smith's declaration to employee Rivera
to the effect that Rivera would lose his job if Local 1 won the
election; and (5) Kassie Gray's similar statement to employee
Carrasquillo.
8 Local 444 's request for oral argument is denied because in our opinion the record,
exceptions , and briefs adequately present the issues and positions of the parties.
4 Pursuant to the provisions of Section 3 (b) of the Act , the Board has delegated its
powers in connection with these cases to a three -member panel [Members Houston, Mur-
dock , and Styles].
In the event the Board does not adopt the Trial Examiner 's recommendations of dis-
missal , Local 444 contends that the complaint herein, dated January 14, 1952, should be
dismissed on the following grounds: ( 1) Local 444 was not served with a copy of the
charge within 6 months of the filing thereof as required by Section 10 (b) of the Act.
(2) The General Counsel does not have the authority to issue more than one complaint
upon the same charge. As to (1), Section 10 (b) does not require the service of a copy
of the charge upon Local 44A because it is not a respondent , 1. e., "the person against
whom [the] charge is made." Guy F. Atkinson, et at, 90 NLRB 143. Moreover , the rec-
ord reveals that the charge and complaint herein were served on Local 444 before the
hearing so that ample notice was given concerning the issues involved in these proceedings.
Cf. Consolidated Edison Company v . N. L. R. B ., 305 U . S. 197 . As to ( 2), we are of the
opinion that the withdrawal of the complaint originally issued on March 7, 1951 , did not
preclude the General Counsel from issuing the present complaint . The charge was not
merged with or extinguished by the complaint originally issued . Therefore , the charge
survived the withdrawal of the first complaint on procedural grounds, and furnished the
legal basis for the issuance of a new complaint by the General Counsel . Accordingly, we
Ind no merit in Local 444's contentions.
1546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Trial Examiner nevertheless recommended that the objections
herein be overruled on the ground that Local 1 acquiesced in and
waived the first 3 episodes, which occurred 2 weeks or more before the
election, by failing to file a protest with the Board before the elec-
tion was held .e His Intermediate Report, however, was prepared
and issued before the Board's recent decision in The Great Atlantic
& Pacific case.7 In that case the Board held that, despite the absence
of preelection objections or charges, it would consider on the merits
any alleged interference which occurs after the execution by the parties
of a stipulation for certification upon consent election. In the instant
cases the incidents described above took place after the execution of
the stipulation on March 17,19506 Accordingly, we find, contrary to
the Trial Examiner, that none of these incidents was waived although
Local 1 did not file its objections until after the election. We are
consequently free to consider this conduct on the merits. A careful
analysis thereof persuades us to conclude in agreement with the Trial
Examiner that the said conduct interfered with the employees' free-
dom of choice in the selection of a bargaining representative. We
shall therefore set aside the election of April 14, 1950, and shall direct
the Regional Director to conduct a new election at such time as he
deems appropriate."
2. The Trial Examiner found that the Respondent did not commit
any unfair labor practices in violation of the "Midwest Piping" doc-
trine by entering into a contract with Local 444 on May 10, 1950, when
Local 1's objections to the election were still pending.1° The Trial
Examiner took the position that under the principle of the Williams
Penn case 11 there was no Midwest Piping violation because the Em-
ployer, in the opinion of the Trial Examiner, proved to be correct in
its judgment that the objections were without merit and that as a
result there was no question concerning representation when the con-
tract was executed. As we take the opposite view that the objections
should be sustained, it is unnecessary for the purposes of the instant
cases to decide whether the William Penn case was properly applied
8 Although the Trial Examiner found that the two other acts of interference-the Gray-
Carrasquillo and Smith-Rivera incidents--were not waived in view of their occurrence
within the final 2-week period preceding the election, he concluded that they were too
unsubstantial, considered by themselves, to have affected the results of the election.
7 The Great Atlantic & Pacific Tea Company, 101 NLRB 1118.
8 Although it appears that certain adherents of Local 444, namely, employee James
Smith and nonemployees Kassie Gray and Reuben Moore, started their electioneering
activities in the plant before March 17, 1950, they continued these activities up to the
time of the election.
8In view of this finding, it is unnecessary to pass upon other objections to the election
raised by Local 1.
10 As indicated by the Trial Examiner, the Board held in Midwest Piping and Supply Co.,
63 NLRB 1060, and related cases, that an employer unlawfully infringes upon his em-
ployees' freedom to select their own bargaining representative if the employer enters into
a contract with 1 or 2 or more competing labor organizations notwithstanding the existence
of a question concerning their representation.
11 William Penn Broadcasting Oompany, 98 NLRB 1104.
NATIONAL CONTAINER CORPORATION 1547
by the Trial Examiner.12 Accordingly, we find that the question con-,
corning representation herein had not been finally determined as
meritorious objections were then still unresolved and no final action
had been taken by the Board in the representation proceeding. There-
fore, the Midwest Piping rule is applicable to the instant proceed-
ings 13 Under the circumstances, we find, contrary to the Trial Ex-
aminer, that by entering into a collective-bargaining agreement with
Local 444 on May 10, 1950, the Employer contributed support to that
organization in violation of Section 8 (a) (2) of the Act, and inter-
fered with, restrained, and coerced its employees in the exercise of
the rights guaranteed in Section 7 of the Act, thereby also violating
Section 8 (a) (1) of the Act 14
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth above, occurring in con-
nection with the operations of the Respondent described in the Inter-
mediate Report, 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.
THE REMEDY
Having found that the Respondent has engaged in unfair labor
practices, we shall order that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the
Act.
Upon the basis of the foregoing findings of fact, and upon the en-
tire record in these cases , the Board makes the following:
CONCLUSIONS OF LAW
1. By assisting U. S. Corrugated Workers Union, Local No. 444,
International Brotherhood of Pulp, Sulphite and Paper Mill Work-
ers, AFL, and by according continuing effect to its contract with said
labor organization, the Respondent has engaged in and is engaged in
unfair labor practices within the meaning of Section 8 (a) (2) of the
Act.
2. In the foregoing manner by interfering with, restraining, and
coercing its employees in the exercise of rights guaranteed in Section
12 Accordingly, we do not pass upon or adopt those portions of the Intermediate Report
discussing that case.
18 See also Radio Industries Inc., 100 NLRB 1016 ; Corning Glass Works, 100 NLRB
444; Sunbeam Corporation, 99 NLRB 546.
11 The General Counsel also alleged in the complaint that the contract contained an
invalid union -security clause in violation of Section 8 (a) (1) and ( 2) of the Act. As a
finding that the union-security clause is illegal would in any event involve the same
remedy and order we are already requiring in connection with the Midwest Piping violation,
it is unnecessary to pass upon the Trial Examiner 's finding on that issue.
1548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
7 of the Act, the Respondent has engaged in and is engaging in un-
fair labor practices within the meaning of Section 8 (a) (1) of the
Act.
3. The foregoing unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of the
Act.
Order
Upon the entire record in these cases and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that Respondent, National Container Corpora-
tion, Long Island City, New York, its officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Recognizing U. S. Corrugated Workers Union, Local No. 444,
International Brotherhood of Pulp, Sulphite and Paper Mill Workers,
AFL, as the bargaining representative of any of its employees in the
following unit :
All production, maintenance, and shipping employees employed at
its Long Island City, New York, plant, including machinists, chauf-
feurs and chauffeurs' helpers, and die room employees, but excluding
office clerical employees, executives, electricians, professional em-
ployees, watchmen, guards, and supervisors as defined in the Act,15
for the purpose of collective bargaining with it in respect to griev-
ances, labor disputes, wages, rates of pay, hours of employment, and
other conditions of employment, unless and until said labor organiza-
tion shall have been certified by the National Labor Relations Board.
(b) Performing and giving effect to its agreement of May 10, 1950,
with U. S. Corrugated Workers Union, Local No. 444, International
Brotherhood of Pulp, Sulphite and Paper Mill Workers, AFL, or to
any modification, extension, supplement, or renewal thereof, or to
any superseding agreement with said labor organization, unless and
until said organization shall have been certified by the National Labor
Relations Board 16
(c) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-organiza-
tion, to form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, to engage in concerted
activities for the purposes of collective bargaining or other mutual aid
or protection, or to refrain from any and all such activities, except to
the extent that such right may be affected by an agreement requiring
11 This unit conforms to the stipulation of the parties.
16 However , nothing herein shall be construed to require that the Respondent vary or
abandon the terms or conditions of employment established in said agreement of May 10,
1950 , or any modification , extension , supplement, or renewal thereof, or any superseding
agreement , or to prejudice the assertion by the employees of any rights they may have
thereunder.
NATIONAL CONTAINER CORPORATION 1549
membership in a labor organization as a condition of employment as
authorized in Section 8 (a) (3) 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 U. S. Corrugated
Workers Union, Local No. 444, International Brotherhood of Pulp,
Sulphite and Paper Mill Workers, AFL, as the representative of any
of its employees in the aforesaid unit for the purposes of collective
bargaining with it in respect to grievances, labor disputes, wages, rates
of pay, hours of employment, or other conditions of employment, un-
less and until said organization has been certified by the National
Labor Relations Board.
(b) Post at its plant at Long Island City, New York, copies of
notice attached hereto and marked "Appendix A." 17 Copies of said
notice, to be furnished by the Regional Director for the Second Region,
shall, after being duly signed by Respondent's representative, be
posted by Respondent immediately upon receipt thereof, and main-
tained by it for 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 Respondent to insure
that said notices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for the Second Region in writing,
within ten (10) days from the date of this Order, what steps the Re-
spondent has taken to comply herewith.
IT IS FURTHER ORDERED that the election of April 14, 1950, be, and it
hereby is, set aside, and that these proceedings be remanded to the
Regional Director for the Region in which these cases were heard for
the purpose of conducting a new election at such time as he deems
the circumstances permit a free choice of a bargaining representative.
aT 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."
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board and in order to effectuate the policies of the National Labor
Relations Act, we here notify our emploees that :
WE WILL NOT recognize U. S. CORRUGATED WORKERS UNION,
LOCAL No. 444, INTERNATIONAL BROTHERHOOD OF PULP, SULPHITE
AND PAPER MILL WORKERS, AFL, as the representative of any of
our employees employed in the following described unit :
1550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All production, maintenance, and shipping employees em-
ployed at the Long Island City, New York, plant, including
machinists, chauffeurs and chauffeurs' helpers, and die room
employees, but excluding office clerical employees, executives,
electricians, professional employees, watchmen, guards, and
supervisors as defined in the Act,
for the purpose of collective bargaining with us in respect to
grievances, labor disputes, wages, rates of pay, hours of employ-
ment, or other conditions of employment, unless and until said
labor organization shall have been certified by the National Labor
Relations Board.
WE WILL NOT perform or give effect to our agreement dated
May 10, 1950, with U. S. CORRUGATED WORKERS UNION, LOCAL
No. 444, INTERNATIONAL BROTHERHOOD OF PULP, SULPHITE AND
PAPER MILL WORKERS, AFL, or to any modification, extension,
supplement, or renewal thereof, or to any superseding agreement
with said labor organization involving the aforesaid unit of
employees, unless and until said labor organization shall have
been certified by the National Labor Relations Board.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of their right to
self-organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own choos-
ing, to engage in concerted activities for the purposes of collec-
tive bargaining or other mutual aid or protection, or to refrain
from any and all such activities, except to the extent that such
rights may be affected by an agreement requiring membership in
a labor organization as a condition of employment, as authorized
in Section S (a) (3) of the Act.
WE WILL withdraw and withhold all recognition from U. S.
CORRUGATED WORKERS UNION, LOCAL No. 444, INTERNATIONAL
BROTHERHOOD OF PULP, SULPHITE AND PAPER MILL WORKERS,
AFL, as representative of any of our employees in the aforesaid
unit for the purposes of collective bargaining with use in respect
to grievances, labor disputes, wages, rates of pay, hours of em-
ployment, or other conditions of employment, unless and until
said organization shall have been certified by the National Labor
Relations Board.
NATIONAL CONTAINER CORPORATION,
Employer.
Dated -------------------- By ------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
NATIONAL CONTAINER CORPORATION
Intermediate Report and Recommended Order
STATEMENT OF THE CASES
1551
Upon petition for certification of representatives filed with the Board on Decem-
ber 1, 1949, by Independent Corrugated Workers Union of America, Local No. 1,
a consent election by agreement of all affected parties was held under the auspices
of the Board among the employees of National Container Corporation, Long
Island City, New York, the Employer herein. U. S. Corrugated Workers Union,
Local No. 444, International Brotherhood of Pulp, Sulphite and Paper Mill
Workers, AFL, a labor organization, participated in the election and received
a numerical majority of the valid votes cast. Local 1 filed objections to the elec-
tion, and also charges of violation of Section 8 (a) (1) and 8 (a) (2) of the
National Labor Relations Act, 61 Stat. 136, alleging that the Company had sup-
ported and assisted Local 444 and interfered with employee rights.
Complaint was issued in the unfair labor practice case on March 7, 1951, and
upon direction of the Board and due notice a hearing, in which all parties par-
ticipated fully, was held in the consolidated cases in New York, New York, before
the undersigned Trial Examiner on various dates from April 23 to May 11, 1951.
On June 27, 1951, the Trial Examiner issued his Intermediate Report and
Recommended Order in which he recommended (1) that the objections to the
election be dismissed on the ground that more than a year had elapsed since the
election;' and (2) that the complaint be dismissed on the ground that the charg-
ing Union was not in compliance with Section 9 (g) of the statute on the date
the complaint issued.
Local 1, previously in compliance, had allowed its compliance to lapse partially
for a 2-week period from February 28, 1951, to March 14, 1951, during which
period, apparently due to clerical inadvertence, the complaint was issued. At
all other relevant times Local 1 was in full compliance with Section 9 (f), (g),
and (h) of the Act.
Exceptions to the Intermediate Report and Recommended Order were duly
filed by Local 1. Subsequent to that, and before disposition of the objections,
the General Counsel filed a motion with the Board, to which objections were
filed, requesting permission to withdraw the complaint and to issue a new one.
Upon rule to show cause issued on August 17, 1951, the Board issued a Decision
on Motion on November 9, 1951, granting leave to withdraw the complaint, but
expressly reserving opinion on the question whether the General Counsel had,
or should exercise, power to issue a new complaint. Pending the General Coun-
sel's final disposition of the charge the Board deferred further action in the
representation proceeding.
On January 14, 1952, the General Counsel issued a new complaint alleging vio-
lations of Section 8 (a) (1) and (2) by the Company. The Board remanded the
representation proceeding for further hearing in conjunction with this complaint.
Answers to the complaint denying the commission of unfair labor practices were
duly filed.
Upon due notice a bearing on the issues raised by the second complaint, and
on the objections to the election, was held in New York, New York, from March 24,
1952, to April 1, 1952. All parties participated fully and thereafter filed briefs.
In addition to the pleadings, and the record of the proceedings before the Board,
the record consists of the transcripts and exhibits of 3 hearings : The 2 conducted
on the objections to the election and the several complaints, and 1 conducted on
Local 1's petition for certification, held February 17 to March 17, 1950.
1 The line of cases cited as authority for this result has since been overruled by the
Board . American Thread Co ., 96 NLRB 956.
1552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the basis of admitted or nondisputed facts, it is found that the Company is
engaged in commerce within the meaning of the Act.
Though the issue is disputed , it is further found that Local 1 is a labor organi-
zation within the meaning of Section 2 (5) of the Act. Various contentions
raised by the Company and Local 444 based on asserted lack of capacity in Local 1
to represent employees are found not sustained.
In view of my disposition of the case on the merits, as detailed hereinafter,
numerous procedural questions advanced by the Company and Local 444 need not
be resolved . N. L. R. B. v. Bradley Washfountain Co., 192 F . 2d 144 (0. A. 7) ;
N. L. R. B. v. Del Webb Co., 30 LRR.M 1055 (C. A. 8).
On the basis of the entire record , and from my observation of the witnesses, I
make the further and following :
FINDINGS OF FACT
1. SUMMARY OF EVENTS
On March 17, 1950, during the course of a representation hearing conducted
upon Local 1's petition for certification, the Company, Local 1, Local 444, and
Leonard J . Lurie, field examiner for the Board, executed a stipulation for the
holding of a consent election to determine whether Local 1 or Local 444, or either
of them, was the collective-bargaining representative of the Company's employees.
This stipulation was approved by the Regional Director on March 20, 1950.
The election was held on April 14, 1950, Local 444 receiving a majority of the
valid votes cast.
Approximate number of eligible voters--------- ------------------ 436
Void ballots------------------------------------------------------ 2
Votes cast for Local 444------------------------------------------ 229
Votes cast for Local 1-------------------------------------------- 181
Votes cast for neither-------------------------------------------- 3
Valid votes counted---------------------------------------------- 419
Challenged ballots --- -------------------------------------------- 8
On April 19, 1950, Local 1 filed objections to the election alleging various acts
by the Company and Local 444 in the nature of interference and intimidation
affecting the results of the election.
On May 10, 1950, the Company executed another contract with Local 444.
On November 1, 1950, the Regional Director issued his report on objections in
which he found some of the allegations established , some not so, and others un-
necessary to decide. On the basis of his findings the Regional Director recom-
mended to the Board that the election be set aside and a new one conducted.
Exceptions to the Regional Director's report on objections were duly filed
by the Company and Local 444, and on December 28, 1950 , the Board ordered
that a hearing be held on the issues raised.
In the meantime , on June 5, 1950 , Local 1 had also filed charges of unfair
labor practices . In its Order directing a bearing with respect to the objections
the Board also directed that the unfair labor practice case be consolidated with
the representation case for the purpose of hearing.
As has been recited heretofore , hearing was held on those issues in April
and May 1951 ; followed on June 27, 1951, by issuance of an Intermediate Report
recommending dismissal ; withdrawal of the complaint ; issuance of a new com-
plaint on January 14, 1952; and hearing thereon and on the objections to the
election in April and May 1952.
NATIONAL CONTAINER CORPORATION
II. THE ISSUES
1553
In the representation case the issue is merely whether the Company and Local
444 engaged in conduct affecting the results of the election ; and, if so, whether
by failing to object to the conduct prior to the election, Local 1 "acquiesced" in
or waived it.
In the complaint case the issues are whether, by executing a contract with
Local 444 on May 10, 1950, after the election, and while the objections were
pending, the Company violated Section 8 (a) (1) and (2) by (1) contracting
while a question of representation was pending before the Board, Midwest Piping
and Supply Co., 63 NLRB 1060; and (2) by incorporating in the contract a
clause illegally requiring membership in Local 444.
The instant complaint does not, though the original one did, allege as unfair
labor practices any of the conduct forming the basis of the objections.
Since if the objections are sustained, the making of the contract while they
were unresolved would, in my judgment, constitute a violation of the rule of the
Midwest Piping case, supra ; the objections will be first disposed of. Whether
the Midwest Piping principle is applicable even if the objections are without
merit, is discussed at a later point.
III. THE OBJECTIONS TO THE ELECTION
The objections to the election, insofar as found by the Regional Director to
have, or not to be without, merit alleged , in substance , the following :
(1) That representatives of Local 444 were permitted free access to the plant
for electioneering purposes prior to the election, while advocates of Local 1 were
denied such privileges.
(2) That representatives of the Company and Local 444 threatened employees
with reprisals in employment and physical violence if they supported or voted
for Local 1.
(3) That new employees were told upon hiring that they would be expected
to join Local 444, although there was not at that time any contractual require-
ment therefor.
The defenses of the Company and Local 444 on these issues are, in general:
(1) A denial of the allegations; (2) assertion that even if established, the alle-
gations do not afford a basis for setting aside the election, because Local 1
"acquiesced": that is, failed to protest the conduct prior to the election, thereby
waiving its right to insist upon it as ground for voiding the election. See, for
example, International Harvester Co., 93 NLRB No. 48; Henry C. Lytton, 93
NLRB No. 49; R. L. Polk, 93 NLRB No. 196; Dupont Co., 81 NLRB 248; Greater
New York Broadcasting Co., 85 NLRB 414; Denton Co., 93 NLRB 329; Goodyear
Co., 85 NLRB 147; cf. M. H. Davidson Co., 94 NLRB 142; Howell Chevrolet, 95
NLRB 410; Squirrel Brand Co., 96 NLRB 179.
The evidence with respect to the objections will be discussed first, the appli-
cation of the acquiescence doctrine later.
1. The background
Local 444 has had contractual relations with the Company within the appro-
priate unit since September 24, 1941. National Container Corporation, 62 NLRB
48. In 1945 it was certified by the Board as collective-bargaining representative,
and on December 23, 1948, authorized to make a union-shop agreement (Case
No. 2-UA-4748). The record indicates that Local 444 and District 65,2 Distribur
2 Referred to in the record as "Local 65" or "District 65." The designation used here
is from the testimony of the organization' s office manager.
1554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive, Processing and Office Workers of America, are organizational rivals in the
Company's plant and in neighboring plants. In fact, the 1945 certification of
Local 444 at National Container was pursuant to election conducted upon Dis-
trict 65's petition for certification ( Case r o. 2-R-5196 ). One of the neighbor-
ing plants , Atlantic Container , is a "65 shop."
Local 1 had its origin in a dissidence movement inside Local 444 in 1949. A
group of the dissidents , some of them officers or former officers , dissatisfied with
the top leadership in Local 444, formed a "Committee for a Real Union in Na-
tional Container ." The testimony is that there was no thought at that time of
establishing a rival organization but merely to secure new leadership within
the Local . Apparently unsuccessful in that objective , the adherents of the com-
mittee decided to form an independent union and to contest Local 444 's repre-
sentative status.
The then existing contract between Local 444 and the Company was due to ex-
pire on December 31, 1949. In late November 1949, the dissidents met and voted
to establish an independent union to be known as Independent Corrugated
Workers Union of America , Local No. 1. A constitution was adopted , officers
elected, and dues books issued. On December 1, 1949, Local 1 ' s president and its
attorney sent a telegram to the Company stating that Local 1 represented a,
majority of the Company 's employees , and requesting a conference for the pur-
pose of negotiating a collective -bargaining agreement . On the same day Local
1 filed a petition for certification with the Board. In the course of hearing upon
this petition , agreement was reached for the consent election of April 14, 1950.
Both Unions , assisted by other unions, waged an active election campaign,
distributing leaflets and soliciting membership and votes.
District 65 had adherents in the plant , at least some of whom aligned them-
selves with Local 1. During the course of the campaign , these suggested that
the Independent secure the assistance of District 65; a suggestion apparently
approved by the executive board of Local 1.
In any event the officers of Local 1 met with representatives of District 65 in
the early part of 1950, asked their help , were promised it, and subsequently were
provided assistance by District 65 representatives in the way of advice, dis-
tributing-possibly even providing-circulars , providing speakers at election
rallies, and solicitors, several of them being District 65 members employed at
Atlantic Container who had formerly been company employees.
At around the same time suggestions were made for affiliation by Local 1 with
District 65. In May 1950, Local 1 affiliated with District 65, becoming 1 of
approximately 30 administrative subdivisions thereof. It has officers and holds
membership meetings . It has jurisdiction over National Container , admits
employees of that plant to membership , and has authority to administer con-
tracts within its jurisdiction . It no longer has a separate constitution or a
separate treasury. However, no local of District 65 seems to have. While the
contention is made that Local 1 has so merged with District 65 as to have no
separate identity , I find that the above-stated facts are sufficient to establish that
it is a functioning labor organization within the meaning of the Act.
2. Disparate electioneering privileges
Local 1 contends that Local 444 solicitors were allowed free access to the
plant , while Local 1's organizing efforts on the premises were inhibited by the
Company.
Kassie Gray and Reuben Moore are personal friends of " Scotty" Smith , presi-
dent of Local 444. Gray and Moore are former company employees. At the
time of these events they were working at a neighboring plant, Industrial Con-
NATIONAL CONTAINER CORPORATION 1555
tainer, where they had assisted Local 444 in a contest with District 65 some
years back. Hearing from President Smith, according to their testimony, that
he was "having trouble" with 65, Gray and Moore volunteered to help. Begin-
ning about February, Gray and Moore visited the National plant from 1 to 4
times a week, sometimes during the day, sometimes at night ; and at times
accompanied by President Smith. On these occasions Gray and Moore, with the
permission, acquiescence, or knowledge of supervisors, and without apparent
restraint, circulated through the plant talking to employees on behalf of Local
444 and enlisting their support in the election. According to company rules, all
persons are forbidden to enter the plant without the permission of foremen or
some other responsible official.
Company rules also forbade union activity on company time. However,
"Scotty" Smith and James Smith, his brother, who is secretary-treasurer of
Local 444, and both of whom were at that time company employees, were cus-
tomarily permitted to talk to employees in the plant about union business, and
there appears to have been no substantial restriction of that privilege during the
election campaign. Both took advantage of the dispensation to campaign for
Local 444 on company time.
While Gray, Moore, and the Smiths were, in general , except as contrarily
indicated hereinafter, being permitted to solicit on behalf of Local 444 on com-
pany time, some representatives of Local 1 were restrained from so doing.
Thus in late March 1950, former Foreman Chupa told Wallace Irizarri, an
official and one of the leaders in the organization of Local 1, to stop talking about
Local 1 a
Chupa also told other employees that Irizarri was not allowed to talk to them
about Local 1.4
Irizarri's testimony is that he solicited on company time until told to stop it,
when he ceased.
On one occasion in late March 1950, Douglas Fisher, an employee on the day
shift, and president of Local 1, was in the plant in the evening at a time when
Kassie Gray and Reuben Moore, accompanied by Local 444 Secretary-Treasurer
James Smith, were there speaking to employees. The supervisor on the night
shift, after some conversation with Smith, ordered Fisher out of the plant, saying
that Fisher had no right to be there at night.
On the following day, Harry Roit, Fisher's foreman, told Fisher that he had
heard about Fisher's presence in the plant the previous night. Roit further
told Fisher that company rules required day-shift employees to punch out of the
plant within a half hour after quitting time.
These incidents suggest that Local 444 supporters were permitted to electioneer
in the plant, but Local 1 adherents were not. The Fisher incident constitutes
an obvious case of discriminatory treatment. If Fisher, an employee, had no
right to be in the plant at night to electioneer, Gray and Moore, nonemployees,
had even less. Moreover, permitting Gray and Moore, nonemployees, apparently
free access at will to electioneer, no matter for which side, while forbidding
employees to do so, is per se discriminatory. An employer cannot legitimately
permit a remotely interested group, nonemployees, the right to solicit on com-
8 Chupa denied making the above statement . However , he had difficulties with Irizzarl,
concerning , among other things, Irizarri 's absences from his place of work. Chupa's testi-
mony is that he attempted to restrain union activity on company time, warning "Scotty"
Smith and "Joe" Candanedo , a Local 444 officer and supporter , about it. Since he admitted
rebuking Irizzari for absenting himself from his work place and attempted to restrain union
activity I think it likely that he made the statement to Irizzari.
4 Also denied by Chupa. In view of his uniform rule forbidding union activity on com-
pany time and his admitted enforcement of it I conclude that Chupa made the statements.
1556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pany time and premises, and at the same time deny such a privilege to the most
interested group, the employees.
The evidence is not all one-sided, it is true. Thus, there is testimony of
Foreman Chupa that he sought to prevent all union activity on company time ;
testimony of James Smith that he had been warned by foremen ; and testimony
of Chupa that he had warned both "Scotty" Smith and Candanedo, of Local 444.
And Local 1 supporters, despite any inhibitions, managed to do their fair share
of proselytizing on company time. According to Irizarri, 65 to 70 of the em-
ployees were "organizers" in the plant for Local 1. The testimony of President
Fisher of Local 1 is that he solicited at work "any chance [he] got" and "that
would be quite frequent" ; and that he urged other employees to do likewise.
His foreman told him, "Don't bother with those people. I know you are talking
union. Leave them alone." According to his testimony, Fisher was in the plant
at night on 4 to 5 occasions, presumably electioneering, but interfered with only
on the 1 occasion.
In addition Fisher's testimony is that Sam ginstler, one of the former com-
pany employees who worked at Atlantic Container, the 65 shop, and who assisted
Local 1 in the campaign, was in the plant "many times" during the campaign
period. Presumably Kinstler was also electioneering. There is nothing to indi-
cate that Kinstler was ever interfered with. Though less frequent, Kinstler's
presence in the plant without interference would seem to cancel out Moore's and
Gray's, and negative any conclusion of discrimination as between the two unions
in regard to the admission of "outsiders." As between employees while at work
the evidence does not seem substantial enough to warrant the inference that all
Local 444 supporters were permitted to electioneer, while all Local 1's were not,
since employees on both sides were warned. On balance though, it is my judg-
ment and finding that Local 444 representatives were accorded more favorable
treatment. Moreover, in permitting nonemployees to engage in union activity
while forbidding employees to do so, and in ordering Fisher out of the plant
while permitting Gray and Moore to remain, the Company engaged in disparate
treatment as between employees and nonemployees, a discrimination ratified on
the following day by Foreman Roit. Whether that conduct is ground for setting
aside the election in the circumstances is discussed at a later point.
The evidence taken as a whole with respect to solicitation in the plant gives
the impression of an uncoordinated, confused, and lax plant policy. There was
a paper policy of neutrality and a paper rule forbidding activity on company time.
There is no evidence that either rule was ever posted or called to the attention
of the employees or the supervisors in any firm or forceful manner. Enforce-
ment seems to have been left largely to the unsupervised caprice or conscientious-
ness of the individual foreman, with the expectable diverse results. Both sides
in some instances were victims of enforcement ; in other instances both violated
the policy with apparent impunity. The whole episode suggests that public
announcement of and effective and uniform policing of the Company's solicitation
policies would obviate confusion as to just what the policies are ; and eliminate
any possibility of misunderstanding among employees and disinterested observers
as to what the Company's position vis-a-vis contending unions really is.
3. The incident at the gate
On April 12, 1950, 2 days before the election, Local 1 held an election rally at
Ray's Bar and Grill, a tavern near the plant, at hours designed to catch the
employees when changing shifts in the late afternoon.
At the time of shift change on that day representatives of Local 1, Local 444,
and of Local 804 of the International Brotherhood of Teamsters, distributed
NATIONAL CONTAINER CORPORATION 1557
literature at the employees' entrance to the plant. The Teamsters' representa-
tives were distributing their own leaflets, whose message was a denial that the
Teamsters had made any "deal" with Local 1 whereby if the Company's chauf-
feurs and platform men voted for Local 1, the latter would assign them to the
Teamsters Union.`
On that occasion the Teamsters' representatives are alleged to have physically
blocked employees from going to the Local 1 rally, made threats of physical
violence and loss of employment, and to have assaulted one Local 1 supporter,
Victor Algarin.
The plant may be roughly visualized as a square bounded on each side by a
street. The employees' entrance is in the middle of the lower line of the square,
about midway between the corners. A public busline runs along the right-hand
line of the square, stopping at both the top and bottom corners. Ray's Bar and
Grill is about opposite the upper left-hand corner of the square. In addition to
the employee entrance in the lower square there are two other exits or entrances
which employees can use. These are in the upper line of the square. Thus em-
ployees in the plant can get to Ray's Bar and Grill either by the lower or upper
exits. The latter are obviously closer. Employees arriving on the bus and intent
on going to Ray's Bar can get off at either stop. Here also the upper stop is the
more convenient.
The testimony of Local 1's witnesses, in sum, is that at the time of shift change
some 10 to 15 Teamsters and Local 444 men congregated at the employees' en-
trance and blocked the street to Ray's Bar ; that the Teamsters called the
employees "Spies," told employees not to go to the meeting of "that Communist
outfit" ; said that if Local 1 won the election the Teamsters would "send in a mob
to kick the - out of the Spanish guys" ; said that the employees would lose their
jobs if they supported Local 1; and grabbed or bumped Algarin. This testimony
is denied.
The various versions of the witnesses for Local 1 are contradictory and, in my
opinion, exaggerated.
In the first place, both sides were at the gate distributing leaflets, and each had
9 to 10 men there, among them Teamsters, officials of both Local 444 and Local 1,
representatives of District 65, and some District 65 men from the Atlantic Con-
tainer plant.
So far as appears, the asserted incidents took place without any friction be-
tween the rival groups stationed at the entrance, and without protest, expression
of resentment, or any comment whatever from the Local 1 observers. That there
may have been some obstruction or jostling with 18 or 20 rival partisans attempt-
ing to proselytize 350 to 400 employees going in and out the entrance, I do not
doubt. But that the incidents sought to be established occurred without protest
from the Local 1 group, or without friction between the rivals, I cannot accept.
I hardly think that Local 1 supporters so pusillanimous. Nor can I accept testi-
mony such as that by Wallace Irizarri to the effect that he was so "scared" by
the threatening and restraining action at the entrance that, though he had in-
tended to go to the Local 1 meeting, he turned around, went back into the plant,
and left by one of the other exits without going to the rally. Irizarri did not
impress me as a person to be intimidated by threats, even of physical assault,
particularly where a substantial number of his own supporters were on the scene.
One of the organizers of Local 1, Newburgh, assertedly used such an argument in order
to persuade the chauffeurs and platform men to vote for Local 1. President Smith of
Local 444 upbraided President Geiger of the Teamsters for making such a "deal." Geiger
denied it and offered to repeat the denial publicly. That was the occasion for the leaflet
distribution by the Teamsters on July 12. In addition, President Geiger testified, he
offered Local 444 any assistance he could give it.
257965-54-vol. 103-99
1558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The testimony of Local1 witnesses as to the alleged assault on Algarin is incon-
sistent. Algarin was a confused witness. His testimony is that Teamsters'
President Geiger was alone at the gate as Algarin sought to pass by on his way to
the rally . Geiger, according to Algarin , after uttering some threats , grabbed
Algarin's clothing in an unsuccessful attempt to shunt him into the plant. Algarin
brushed his way by and went on down the street to the meeting. Employee
Carrasquillo's testimony was that no one from Local 1 was at the gate. The fact
is that when Algarin and Carrasquillo arrived there were over a dozen persons
on the scene , some from each side.
The testimony of President Fisher of Local 1 directly contradicts Algarin's.
Thus, according to Fisher , not only were there a large number of persons
present, but Geiger did not grab Algarin's clothing : What he did was to "crowd"
Algarin with his stomach in an effort to herd him into the entrance.
Local 444 's witnesses denied that there was any interference , threats, or as-
saults. As between their consistent and plausible testimony, and the contra-
dictory and implausible contrary versions, I cannot accept the latter. In the
first place , I cannot conceive that 9 or 10 men could have blocked the entire street
so effectively as to prevent someone from passing them , without a show of force
so formidable as to have produced a veritable Donnybrook . That there may
have been words of some kind is possible, but with the contradictory and im-
plausible version of events given, I am unwilling to trust any of the Local 1
testimony as to what happened at the gate. Algarin, according to Fisher, could
have gone around the "line" but didn't; but according to Carrasquillo, the block-
ers formed a "chain" that forced him into the entrance . Algarin, who is 5 foot
1 inch and weighs 130 pounds , whom Geiger , 6 feet 2 inches and 215 pounds,
supposedly sought to restrain physically, assertedly saying that the "Spanish
guys" would be laid off and "beaten up" if Local 1 won the election, was so
unimpressed, according to his testimony, that he "didn't pay any attention,"
brushed Geiger off, and went on to the meeting. On the other hand, Irizarri,
5 feet 111/2 inches, 27 years old , 200 pounds, and-from my appraisal-no dispir-
ited recreant, was so terrified by the mere sights and sounds at the gate that
he abandoned his plan to go to the meeting and fled the scene by another and
unattended exit much closer to the place of the rally. This I do not believe.
Carrasquillo, who had to be at work at 4: 45, did not see Fisher, who saw him ;
saw none of the plainly visible Local 1 men there ; arrived at the gate between
4: 15 and 4: 30; would have had to change his clothes ; took the bus a stop
beyond the closest route to the meeting ; yet intended to go to the meeting "for
5 or 10 minutes" before work , but was prevented from doing so. Instead of
walking into the entrance and leaving the plant from 1 of the other 2 exits,
where no one was present , Carrasquillo , though obviously pinched for time if
his account were correct, spent 17 minutes , according to his testimony, vainly
attempting to break through the "human chain" which completely blocked the
street leading to Ray's Grill ; but which , according to Fisher , he could easily
have walked around.
I do not credit the testimony of Local 1's witnesses as to the incidents at the
entrance . It is therefore unnecessary to consider the question whether respon-
sibility for any acts by the Teamsters' representatives should be attributed
to Local 444 or the Company.
4. Threats
Local 1's evidence is that company and Local 444 representatives also made
other threats to employees which had the effect of interfering with free choice in
the election.
NATIONAL CONTAINER CORPORATION 1559
Employee Wallace Irizarri , a leader in the Local 1 activity, testified that in
late March 1950, Foreman William Chupa told Irizarri that if Local 444 won
the election , Irizarri would be "out of a job"; and further said that Irizarri
should stop talking to other employees about Local 1. Irizarri further testified
that around the same time Foreman Chupa told Irizarri's helper, Manuel Neives,
that if Neives listened to Irizarri, he would be "out of a job like Irizarri."
Chupa denied Irizarri 's testimony . Neives did not testify.
As has been found previously, Foreman Chupa attempted to restrain all union
solicitation' on company time. Irizarri was one of those who solicited on com-
pany time at every opp,irtunity. Moreover there was admittedly bad personal
feeling of long standing between Chupa and Irizarri. Thus Irizarri once threat-
ened, assertedly for cause, to punch Chupa in the nose ; on another occasion,
according to Chupa's testimony (which I credit in this instance, though denied
by Irizarri), Irizarri told Chupa that he would "make a sweeper out of" Chupa,
"when Local ], gets in." Chupa sought several times, without success, to have
Irizarri transferred out of his department. Three or four weeks prior to the
election, during the lapse in contractual relations between January 1 and May
10, 1950, Chupa admittedly said to Irizarri "God damn it, I wish we could get a
union contract here so I could get rid of you."
In view of all these factors, I am persuaded that Chupa made the statements
attributed to him by Irizarri.
Employee Domingo Rivera's denied, but credited, testimony is that either
on March 31, 1950, or 2 or 3 months before the election (it is not clear which),
"Scotty" Smith, president of Local 444, approached Rivera in the locker room
one evening, demanded to know by what right Rivera had signed a card for Local
1, and after some further words, told Rivera, "If I win the election you'll be
out [of a job]."
About March IT, 1950, while President Fisher of Local 1 was discussing
Local I's business with several other Local 1 leaders, during working hours,
Foreman Roit asked Fisher to do a certain job. Fisher replied, in substance, that
he would do it later. Roit said, "Okay" and walked away. Later in the day,
according to Fisher's denied, but credited, testimony, Roit said to Fisher :
I don't know what the hell you are knocking your head against the wall for
about these unions. . . . You're going to get kicked out of here, anyway.
In the context of that occurrence I see no ground for inferring that Roit's
statements were threats of reprisal for Local 1 activity. They therefore did not
constitute interference with the election ; similarly with respect to some testi-
mony given by Fisher, and denied by Roit, to the effect that Roit told Fisher that
he (Roit) had been ordered to keep Fisher "off any job that pays a higher rate."
In the absence of other evidence suggesting that the reason for the asserted dis-
crimination was Fisher's union activities, I do not find this incident-assuming
the truth of Fisher's version-to be interference with the election.
Foreman Chupa admitted that he had on occasion stated to employees that
District 65 was "Communistic" or a "Communist outfit," and Local 1 of like
character because affiliated with 65. Since the Board has held that it is not an
unfair labor practice to call a union "Communist." Editorial El Imparcial, 92
NLRB No. 58, such a characterization of Local 1 would not constitute inter-
ference with the election.
On April 10, 1950, according to employee Victor Carrasquillo, Kassie Gray,
visiting in the plant that evening, told Carrasquillo, in the present of Reuben
Moore, that if the employees voted for Local 1 they would "lose their jobs" and
1560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"get in trouble with the Company." Gray and Moore further said, according to
Carrasquillo, that they had "ways to find out the way you vote." Gray, but
not Moore, denied that Gray made these statements. Gray admitted, however,
telling employees, in effect, that because of Local 1's leadership, employees would
have to strike to get any concessions from the Company if Local 1 was certified ;
and further, that he may have told employees that the Company was in a posi-
tion to move the plant elsewhere, and thus the employees would be without a
job. I credit Carrasquillo's testimony.
The effect of the foregoing conduct, insofar as not disposed of in this subsec-
tion, is discussed at a later point.
5. Dues collection in the plant
As has been seen, contractual relations between the Company and Local 444
go back to 1941. At least since 1964, and possibly earlier, the Company has
permitted Local 444 to collect dues on paydays at an improvised table or bench
in the plant near the paymaster's office. Employees are paid weekly and at
the time of the shift change in the afternoon. Thus the dues table, operated by
Local 444's treasurer, is open 1 day each week for a period of 1 to 1% hours.
This practice continued after the expiration of the contract on December 31,
1949. About a month prior to the election, however, President Fisher of Local 1
asked Personnel Director Marc Aurele to grant Local 1 the same privilege.
Fisher's testimony is that Marc Aurele denied such permission ; Marc Aurele's
that he told Fisher that he had no authority to grant the request, and that Fisher
should "see higher authority."
I find it unnecessary to resolve the conflict in testimony or to decide whether,
assuming the truth of Marc Aurele's version, the burden was on Fisher to go
further. During a contractual hiatus caused by the presentation of an unre-
solved claim to representation by a nonincumbent union, an employer is not
required to terminate completely any and all relations with the incumbent and
functioning union. Personnel and other employee problems do not abate with
the contract. Neither are all privileges legitimately granted to and enjoyed by
an incumbent union required to be terminated in such a situation. Nor need
they necessarily be granted to the challenger if permitted to the incumbent.
Obviously such exclusive grants of privilege cannot have the purpose, or be of
such character as to constitute assistance to the incumbent, or substantial dis-
crimination against the nonincumbent. Where the line should be drawn between
legitimate privilege inhering in the status of incumbency and illegitimate assist-
ance, is a matter to be determined on a case-to-case basis.' Suffice to say here
that, in my judgment, it was not inappropriate for the Company to permit the
continued collection of dues by the incumbent Union in the limited circumstances
allowed, while the question of representation raised by the nonincumbent was
being resolved. Similarly, I find that the Company was not required to grant a
similar privilege to the nonincumbent Union. See Goodyear Tire and Rubber Co.,
85 NLRB 135.
6. Discrimination in hiring
Local 1 also alleged that employees hired after December 31, 1949, the date
of expiration of the contract, were told by the Company that they would be
required to join Local 444. The evidence in support of this assertion consists
Obviously illegitimate situations suggest themselves immediately ; thus , permitting
solicitation by the incumbent and forbidding it by the nonincumbent. In appropriate
circumstances even collection of dues might be illegal. Not so, however, in the present
context of circumscribed privilege and long history.
NATIONAL CONTAINER CORPORATION 1561
of the testimony of two employees, Paul Murphy and Michael Victor, hired on,
respectively, January 4 and January 9, 1950. At that time, of course, there was
no contractual or statutory requirement for membership in Local 444.
Murphy's testimony is that when he was hired Personnel Director Marc Aurele
gave him a pamphlet or pamphlets which "stated something about joining the
Union" ; but that Marc Aurele said nothing orally about any union, nor did he
tell Murphy that he would have to join any union. Murphy's further testimony
is that several days later, during the discussion of a grievance, "Scotty" Smith,
president of Local 444, told Murphy that after 30 working days he could join the
Union.'
The documents which Marc Aurele gave Murphy upon hiring were not identi-
fied or introduced into evidence ; and Murphy's testimony does not disclose their
purport, either precisely or substantially. In this state of the evidence I find
no support in Murphy's testimony for the conclusion that he was told on hiring,
or at any time, that he would be required to join Local 444.
Victor's testimony is that around the time he was hired, either Personnel
Director Marc Aurele or Foreman Richter told Victor that after 30 days "some-
one would be around to see [him] about the Union, and [he] would be expected
to join." No one ever approached Victor about joining Local 444, however. He
did join in July 1950 but on his own initiative, seeking out James Smith, secre-
tary-treasurer, and applying for membership.
Personnel Director Marc Aurele denied telling Victor that after 30 days he
would be entitled or expected to join the Union ; but there is no denial from Fore-
man Richter. I credit Victor's testimony. I find this occurrence, however, to be
too remote in time to have affected the election ; and the single incident not
sufficiently substantial to warrant the inference that it represented the uniform
policy.
7. Acquiescence
On some of the incidents recited above, findings have already been made to the
effect that the evidence does not establish the allegations ; and as to others that
the conduct could not have affected the results of the election. As to those inci-
dents not thus disposed of, the question remains as to whether they are grounds
for setting aside the election . These are (1) the disparate treatment accorded
representatives of Locals 1 and 444 in solicitation on the premises; (2) per-
mitting nonemployees to electioneer on company time and premises but forbidding
employees to do so; (3) Foreman Chupa's threats to employee Irizarri to the
effect that the latter would be "out of a job" if Local 444 won the election ; and
to Irizarri's helper, Neives, that Neives would also lose his job if he "listened to"
Irizarri; (4) "Scotty" Smith's declaration to employee Rivera to the effect that
Rivera would lose his job if Local 1 won the election; and (5) Kassie Gray's
similar statement to employee Carrasquillo.
I do not find Foreman Chupa's efforts to have Irizarri transferred out of the
department to have been connected with Irizarri's union activity, however. The
antagonism between Chupa and Irizarri (antagonism which has been considered
in evaluating the testimony) and Chupa's desire to be rid of Irizarri, I find ante-
dated the appearance of Local 1, despite Irizarri's testimony to the contrary.
Chupa's efforts to transfer Irizarri stemmed from personal motives, in my
judgment.
° Under the contract new employees were in a probationary status for 30 working days ;
the practice appears to have been not to admit them to membership in Local 444 while in
such status
1562 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD
The declarations of President Smith of Local 444 and of Kassie Gray, whom
Smith sent into the plant to solicit, and whom the Company permitted to be there,
constitute conduct of the character of interference with election processes, Smith.
Cabinet Co., 81 NLRB 886; Seamprufe, Inc., 82 NLRB 892; cf. Tennessee Coach
Co., 84 NLRB 702. The other incidents just enumerated obviously are. The only
question remaining then, is whether, as is asserted, Local 1 "acquiesced" in this
conduct by proceeding to an election with knowledge of and without protesting
it. Unless it did, these incidents would, in my judgment, constitute adequate
ground for setting aside the election. The instant complaint does not allege that
conduct to be unfair labor practices.
All of these occurrences, with the exception of one-the declaration of Gray
to Carrasquillo on April 10-occurred before April 1 The Gray-Carrasquillo
episode (and possibly the Rivera-Smith incident) aside, all the acts of inter-
ference were known to responsible officials of Local 1 well in advance of the elec-
tion. Thus the electioneering in the plant by Kassie Gray and Reuben Moore
began in February and was continuous up to the election on April 14. The threats
of Foreman Chupa to Irizarri and Neives occurred in late March , as did "Scotty"
Smith's threat to Domingo Rivera. Irizarri was a leader in Local 1. His knowl-
edge is therefore attributable to Local 1. Rivera reported his incident with
"Scotty" Smith to Douglas Fisher, Local 1 president, and later to Local 1's
lawyer, but could not recall when-whether "one day" or "2 months" thereafter.
President Fisher's testimony is that throughout the election campaign he in-
structed Local 1 supporters to report any such incidents to him. In view of
that instruction and the vigor of the campaigning on both sides, it is likely that
the Smith-Rivera incident was probably reported promptly to Fisher.
The Board has held, in a long line of cases, that where there is a genuine
question of representation and known coercive conduct occurs substantially in
advance of the election, the failure of the losing union to protest this conduct
before the election, either by filing unfair labor practice charges or by seeking
postponement of the election, constitutes "acquiescence" in or an implied waiver
of the conduct as ground for setting aside the election. The Board, upon the
assumption that it is doubtful that election results secured in an atmosphere of
interference and coercion will be reflective of real choice, will not hold an elec-
tion while unfair labor practice charges are pending, unless the charging union
files a waiver of the charge conduct insofar as it can be later urged as ground
for setting aside the election The "acquiescence" principle is designed to pre-
vent circumvention of the waiver rule by knowledgeable withholding of the
filing of a charge or request for postponement of the election.
The acquiescence rule has been applied where wage increases calculated to
influence the election were announced by the employer 2 months before the
election, International Harvester Co., 93 NLRB No. 48 ; where they were prom-
ised 6 weeks before the election and granted 2 weeks before, R. L. Polk, 93
NLRB 1079. See also Denton Co., 93 NLRB 329; Goodyear Co., 85 NLRB, 135;
it has been applied where a contract with another union was executed 6 months
(H. I. Dupont Co., 81 NLRB 238) and 4 months (Greater New York Broad-
casting Co., 85 NLRB 414) before the election and continuously implemented
up to the date of the election ; where the employer forbade certain union ac-
tivity on company property from the beginning of organizational activity up to
the time of election, Henry C. Lytton & Co., 93 NLRB No. 49; and where there
was supervisory activity in the nature of interference 3 weeks before the elec-
tion, Calvine Cotton Mills, 98 NLRB 843.
The rule is not applicable where there is no genuine question concerning rep-
resentation ; as where there was an unlawful refusal to bargain prior to the
NATIONAL CONTAINER CORPORATION 1563
election : M. H. Davidson Co., 94 NLRB 142; Howell Chevrolet Co., 95 NLRB
410; Squirrel Brand Co., 96 NLRB 179.
How much time must elapse before knowledgeable failure to protest becomes
acquiescence and waiver no doubt must be determined on a case-to-case basis
according to the circumstances in the individual situation. But clearly 2 weeks
is fatal. R. L. Polk, supra. In the cause of Squirrel Brand Co., 96 NLRB 179,
Board Member Reynolds suggested that unprotested conduct the day before the
election was too contemporaneous with the balloting to warrant application of
the waiver doctrine.
On the basis of the above cases, it is found that, insofar as the objections to
the election are concerned, all objectionable and known conduct which occurred
2 weeks or more before the election was waived by Local 1's failure to file a
protest with the Board. I further find all the occurrences in question to be in
such category except for the Gray-Carrasquillo and Smith-Rivera incidents.
Those two I find to be too unsubstantial, considered by themselves, to have
affected the result of the election. It will therefore be recommended that the
objections to the election be dismissed'
IV. THE UNFAIR LABOR PRACTICE CHARGES
1. The Midwest Piping allegation
The General Counsel alleges that by executing the so-called renewal contract
with Local 444 on May 10, 1950, at a time when the objections of Local 1 to the
election were pending and unresolved, the Respondent violated the "Midwest
Piping" doctrine, and Section 8 (a) (1) and (2) of the Act. Midwest Piping
and Supply Co., 63 NLRB 1060.'
The Midwest Piping rule, in brief, is that the execution of a contract with 1 of 2
or more competing unions while a petition for representation is pending before
the Board constitutes illegal assistance and interference. This principle, how-
ever, has been modified by the Board in several cases, most recently in William
Penn Broadcasting Co., 93 NLRB 1104. See also Roegelein Provision Co., 99
NLRB 830, in accord. In that Decision a majority of the Board held that it Is
not an unfair labor practice for an employer to contract with an incumbent
representative union prior to hearing or election on the petition of a rival union,
"unless the petition has a character and timeliness which create a real question
concerning representation." (Emphasis supplied.) In that particular case proof
that the unit requested in the petition was an appropriate one was held to be
indispensable to the establishment of a real question concerning representation.
This element being there lacking, no violation of the statute was found in the
execution of a renewal contract with the incumbent bargaining representative
at a time when a petition by a rival union was pending before the Board but no
hearing or election had yet been held. The effect of this and other decisions, as I
9 There is a dictum in the Squirrel Brand decision to the effect that "the waiver doctrine
has no application to a situation such as the instant case where the coercive conduct
continued up to the eve of the election " I assume that this language was addressed to
the situation there presented, namely one in which there were specific multiple acts of
interference occurring over a short period of time-28 days-right up to the date of the
election. I do not apprehend that the Board intended in so offhand a manner to overrule
the line of decisions illustrated by the Polk , Greater New York, and Lytton cases. It may
be, as is suggested by counsel, that the waiver policy should be reexamined. Review of
the Board's policy determinations is a function appropriately exercised by the Board and
the courts, however, and not by the Board's Trial Examiner.
For a statement of the rule and its evolution, and the cases, see the following Annual
Reports of the Board : Tenth p. 38; Eleventh pp. 35, 36; Twelfth p. 26 ; Thirteenth pp.
52, 58; Fourteenth p. 53; Fifteenth pp. 97, 98; Sixteenth pp. 148, 149, 159-160.
1564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
interpret them, is that the contracting parties may assume the risk that there is
no real question concerning representation ; if their judgment is ultimately
vindicated, no violation is established ; if the contrary, Midwest Piping is
applicable.
If the principle of the William Penn case, as explained in the Board's Sixteenth
Annual Report, supra, is applicable to the present facts, the determination as to
whether the execution of the contract constituted unfair labor practices is, in
my judgment, dependent upon whether the objections to the election have merit.
It is true that the William Penn case is not, either on its facts or in its lan-
guage, precisely on all fours with the instant one. The points of similarity are
that both involved incumbent union and in both the employer executed a re-
newal contract before the representation proceeding upon the petition of a rival
union had been concluded by certification or other order of the Board. The points
of dissimilarity are that (1) the contract was not executed in the instant case un-
til after the election had been held, and the incumbent union had received a nu-
merical majority of the valid votes cast; and (2) the petition here, unlike that in
the William Penn case, bore a "character and timeliness which create[d] a real
question concerning representation." Thus no question as to the appropriateness
of the unit, or other principle which would have impelled the Board to dismiss
the petition without election, is presented. While objections of the latter char-
acter were raised by the Respondent and Local 444 at the representation hearing,
these were necessarily waived when, during the course of that hearing, those
parties consented to an election. The assertion that Local 1 is or was not a bona
fide or competent labor organization is thus not cognizable in respect to the issue
as to whether a question of representation was raised by Local 1's petition.
But, even if cognizable, I have found the assertion to be without merit.'0 In view
of this stipulation, the absence of issue at the time of election on any question
save which Union was the choice of a majority of the employees, and the results
of the election itself-showing a substantial number of adherents of both organ-
izations, it can scarcely be claimed at this late date that a question of representa-
tion did not exist at the time of the election.
It is also true that a reading of the William Penn decision confining its modi-
fication of Midwest Piping strictly to the literal language of the decision, would
compel the conclusion that the present case i, not one of those to be excepted from
the operation of the Midwest Piping rule. Thus, the Board summed up the
William Penn principle as follows :
. .. we conclude that the pendency of a petition for certification imposes
no duty upon an employer to refrain from continuing exclusively to recognize
and deal with an incumbent bargaining representative, such as we have
here, unless the petition has a character and timeliness which create a real
question concerning representation. (Emphasis supplied.)
The emphasized elements are present here. If they constitute the boundaries of
the William Penn modification of the Midwest Piping case, the execution of the
contract here was an unfair labor practice.
is The stipulation for certification upon consent election, signed by representatives of
the Respondent, Local 444, Local 1, and the Regional Director, stated the following, in
part:
The undersigned labor organizations . . . claim to represent employees of the under-
signed employer. . . . and the unedsigned parties desire that the question concerning
the representation of said employees which exists by virtue of said clam shall be re-
solved by an election by secret ballot. (Emphasis supplied )
NATIONAL CONTAINER CORPORATION 1565
I am persuaded, however, that the quoted language from the William Penn case
marks the extent, not of the principle there enunciated, but of the facts of the
case which gave rise to it. The full principle, in my judgment , is that there must
be no real question concerning representation at the time the contract is executed.
In several cases prior to William Penn the Board had already held, in effect, that
the character of the petition was not the only criteria by which the existence of
a real question concerning representation at the time of execution of contract
was to be determined : Rusher, Alexander & Barsoom, 74 NLRB 1443, and Eaton
Mfg. Co., 76 NLRB 261, 267. The William Penn decision does not indicate or
suggest an intention to modify those cases. They must therefore be considered
apposite.
In the Ensher case the employer made a contract with the incumbent union
following an election which the incumbent union won, and to which objections
had been filed by the losing union. At the time of execution of this agreement
the representation proceeding was still pending, unresolved by the Board. By
that time, however, the petitioning union hag become defunct. In finding Mid-
west Piping inapplicable, the Board said :
There was then, in actual fact, no real question concerning representation
of the Respondent's employees to be resolved. We are therefore of the
opinion that the contract should not fall within the condemnation of the
Midwest Piping doctrine. That doctrine, necessary though it is to protect
freedom of choice in certain situations, can easily operate in derogation of
the practice of continuous collective bargaining, and should, therefore, be
strictly construed and sparingly applied.
In the Eaton case the petition for certification by a rival union appeared, on
its face, to present a genuine question concerning representation. Prior to any
action by the Board on that petition, the employer executed a contract with the
incumbent union. The board declined to find a violation of Midwest Piping be-
cause of the petitioning unions'
subsequent conduct in preventing a prompt determination by filing
an unfair labor practice charge against the Respondent which we find to be
groundless. . . .
If the filing of a groundless unfair labor practice charge takes a case out of the
operation of Midwest Piping, it would seem that the filing of groundless objec-
tions should have the same effect.
The purpose of the Midwest Piping principle is, as the Board said in the Ensher
case, to protect the freedom of choice of employees. In the instant case the
Employer refrained from contracting with the incumbent Union during the time
when the employees' choice could have been affected by his action, namely, pend-
ing the election. It was not until after they had made their choice that the
Company renewed the contract. Of course, if the election was invalid, the execu-
tion of the contract could arguably affect the employees' choice in the new elec-
tion. The same observation is true, however, where the employer incorrectly
determines that the petition presents no real question of representation and
contracts with the incumbent before the election. That possibility, however,
does not invalidate his conduct where he correctly divines the result. The pur-
pose of the rule being to ensure free employee choice in the election, there is
more, and not less, reason in authorizing the resumption of relations after the
desired end has been achieved, than in permitting it beforehand.
As the Board said in the William Penn case, a finding of violation in the
circumstances there
1566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
... would, in our opinion, operate in derogation of the practice of con-
tinuous collective bargaining which the Act was designed to encourage in
the interest of industrial stability....
That language seems particularly apt here, where the pendency of the represen-
tation proceeding resulted in a lapse of over 4 months in the contractual relation-
ship. If an employer may speculate before the election upon the application or
nonapplication of technical principles of representation law, I apprehend no
reason why he should not be able to do so after an election, when he is addition-
ally fortified by the numerical fact that the incumbent has received more votes
than the challenger.
It is consequently my opinion that the Company assumed the risk in executing
the May 10, 1950, contract that Local 1's objections to the election were without
merit" It having previously been found that the objections are not adequate
ground for setting aside the election, it is now further found that no real ques-
tion of representation existed at the time the contract was executed. It will
therefore be recommended that the complaint in this respect be dismissed.
2. The union-security clause
The only other violation of Section 8 alleged in the complaint is that the
May 10, 1950, contract contained an invalid union-security clause.
The contract of May 10 was not an integrated independent document. It was
merely a purported extension and renewal, with wage and other revisions, of
prior agreements. The basic contract goes back to December 29, 1945. That
agreement was renewed and extended, with certain modifications, on August 15,
1947, again on April 25, 1949, and finally on May 10, 1950. This contract lapsed
on December 31, 1951, and there have been no contractual relations since that
date. Since all agreements had expired on December 31, 1949, the May 1950
document, insofar as it incorporated prior contractual clauses, was more properly
a reenactment rather than an extension of them.
The 1945 contract contained the following union-shop clause, section 4 (b) :
All new employees hired under and subject to this Agreement, shall as a
condition of employment become and remain members in good standing in
the Union within thirty (30) working days of the date of their employment"
The 1945 contract also contained a savings clause. This section also remained
a part of the contract during subsequent renewals :
Section 17. CONFLICT WITH ANY STATE OR FEDERAL LAWS :
Where any provision hereof shall conflict with any State or Federal law
operative, or hereafter to become operative, the law shall take precedenee
hereunder.
"Obviously, the above reasoning can have no application to any situation where the
contract is executed or recognition accorded for the purpose of interfering with employee
rights or to assist a union illegitimately, or is part of such kind of program. The premise
of the entire discussion is that the employer's conduct occurs in a context devoid of unfair
labor practices or unlawful purpose.
'-' In section 4 (a) of the 1945 contract the Company agreed to hire through the office
of the Union, provided that the Union could furnish competent and experienced persons.
This clause seems to have remained a part of the contracts down through December 31,
1951. The General Counsel-presumably In reliance upon cases such as Siler Milling Co.,
92 NLRB 1680; Missouri Boiler, 93 NLRB 319; and American Pipe, 93 NLRB 54:
ef, Arthur G McKee, 94 NLRB 399 ; Paul Speer, 98 NLRB 212-bas not attacked section
4 (a).
NATIONAL CONTAINER CORPORATION 1567
The August 1947 extension , beside providing for wage increases , cost-of-living
bonus plan, and other changes, also modified the union -shop clause, by the follow-
ing paragraph :
5. Section 4 (b) of the Labor Agreement between the parties of Decem-
ber 29, 1945, is hereby modified to read : "All employees subject to this
Agreement , shall as a condition of employment, become and remain members
in good standing in the Union. Newly hired employees are granted 30
working days from the date of their hiring to become such members in good
standing."
At the time this agreement was being negotiated the Labor Management Rela-
tions Act-which, among other changes, outlawed the closed shop" and substi-
tuted a modified union shop as the maximum of union security legally achiev-
able-was about to become effective.
During the negotiations the Company told the Union , inter aiia, that it would
grant the Union the union shop permitted by the LMRA. Local 444's counsel,
Leo Greenfield, thereupon drafted the modification of section 4 (b) quoted above
and submitted it to the Company, which said that it was satisfactory provided
Greenfield made "sure that it was in accordance with the Act." Greenfield then
contacted the regional attorney for the Board and asked for an opinion as to
the legality of the proposed modification. The regional attorney told Green-
field that he could not give an official or authoritative opinion binding upon the
Board ; but that in his personal opinion the clause was valid for a year under
Section 102, but that thereafter there would have to be a union-shop election.
He also pointed out that the clause did not provide a 30-day grace period for old
employees; and said that Section 8 (a) (3) of the Act might be interpreted to
impose such a requirement but that he "didn't feel that " it was "necessarily
required." Greenfield reported this back to the Company with the additional
argument that the savings clause in section 17 of the contract provided a back-
stop against any fear of violation . The agreement was thereupon executed.
In September 1948, Local 444 filed a petition with the Board for a union-shop
election , which was held and which it won . In connection with the processing
of that petition, the Regional Director's representative required Local 444 to
submit the contract to the Regional Office for inspection of the union -security
clause. No suggestion was made after that review to the effect that the clause
might be illegal.
On April 25, 1949, the contract was again modified and renewed, terminable
December 31, 1949. From December 31, 1949, until May 10, 1950, contractual
relations lapsed. The 1950 document consisted simply of a new wage clause and
an agreement for renewal and extension of the other terms in the old contracts
dating back to 1945. Thus, except for the wage clause, the old agreements were
simply incorporated in omnibus fashion by a provision in the 1950 agreement
to the effect that they were "renewed and extended as modified."
The union -security clause was not rediscussed in either the 1949 or the 1950
negotiations . In sum , from the time of its enactment in August 1947 until first
attacked in May 1951, the clause was not reconsidered by the parties and no
question was ever raised concerning its validity.
On February 28, 1951, the Board handed down its decision in the case of
Worthington Pump Co., 93 NLRB 527, in which it held in substance that all
"Except in agreements made prior to the enactment of the Act ( June 22, 1947), or in
agreements for no more than 1 year if made prior to the effective date of the Act (August
22, 1947 ). ( Section 102 of the Act )
1568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees affected were entitled to a 30-day grace period after enactment of any
union-security contract, whether new or renewal, during which period of 30
days they could not legally be required to be members of the Union. That was
the first time this particular issue had come before the Board for determination.
The original complaint in this case, issued on March 7, 1951, 1 week after the
Worthington Pump decision, did not attack the union-security clause of the con-
tracts. The first hearing on the objections and the original complaint began
on April 23, 1951. At the May 1, 1951, session, the General Counsel rested his
case-in-chief. On the following day, May 2, Local 1 likewise rested. On May
3, 1951, at the conclusion of Local 444's case-in-chief, the General Counsel amend-
ed his complaint, the effect of which was, on the basis of the Worthington Pump
case, to contest the validity of the union-security clause of the May 10, 1950,
contract and of its predecessors as far back as Section 10 (b) of the statute
would permit : December 10 or 15, 1949. During subsequent argument on the
amendment, to which they objected-claiming surprise and deprivation of due
process inter alia-counsel for Local 444 and the Company, while contending
that the clause was not illegal, stipulated to amend the contract to conform with
the Worthington Pump decision. There is no evidence that notice of this amend-
ment of the agreement was given the employees. However, apart from being a
demonstration of the bona fides of the contracting parties and post hoc evidence
of an intent not to violate the statute, it is doubtful that either the posting of
a notice or the amendment of the contract during the hearing could have any
remedial effect in any event. If nonmember employees joined Local 444 before
June 10, 1950, under compulsion of the May 10 contract, the damage was ir-
revocably done within the first 30 days of the agreement, and a stipulation there-
after to amend could have no more than academic effect.
The original complaint was withdrawn later in 1951 and a new and instant
complaint issued January 14, 1952. During the intervening period, on December
13, 1951, the Board, in the case of Krause Milling Co., 97 NLRB 536, modified the
Worthington Pump principle and overruled it insofar as it held that employees
who are union members on the effective date of a security clause were entitled
to a 30-day escape period. The Board still maintained in that decision, how-
ever, that employee nonmembers were entitled to the grace period. This posi-
tion was reaffirmed in American Coating Mills, 97 NLRB 638, where the clause
found invalid was, so far as here relevant, practically identical with the instant
one; and, among other cases, in Stupakoff Ceramic Co., 98 NLRB 664, and Lever
Bros. Co., 97 NLRB 1240.
Thus the Board law after the Krause Milling case, and today, is that em-
ployees hired after the effective date of the agreement, and old employees who
are not then union members, are entitled to the 30-day grace period ; but old
employees who are union members on the effective date are not entitled to it.
The uncontested testimony is that no discharges have been made for failure
to join Local 444 under the 1950 contract; nor has Local 444 requested any.
On the contrary, the testimony of a number of employees, mainly Local 1 sup-
porters, who ceased paying dues to Local 444 in late 1949 or early 1950, and
who sought to resume dues paying after the 1950 contract was executed, was
that Local 444 refused to accept them, saying in effect, that there would be
no reprisals in employment for nonmembership." There is no evidence of
14 Whether such a dispensation was generally accorded is speculative. Local 444 may
have had its own reasons for not wanting any or certain Local 1 supporters at its meetings.
NATIONAL CONTAINER CORPORATION 1569
any demand by Local 444 for dues from anyone after May 10, 1950. This evi-
dence does not negative all possibility , however , that some employee who may
have dropped out of Local 444 during the contractual hiatus from January 1 to
May 10, 1950, may have resumed dues payments before June 10, 1950, under the
compulsion of the 1950 contract . The same is true of employees hired between
January 1 and May 10 ; and there were such. As to these, as the General Coun-
sel correctly says, there can be no presumption that they were union members
on May 10, 1950.
The General Counsel's position, in sum, is that, insofar as Section 8 (a) (1)
of the Act is concerned, it is immaterial whether the security clause in the
1950 contract was affirmatively enforced or not, or even intended to be ; its
mere existence constituted restraint and coercion. On this point, if the clause
is illegal, the cases bear him out. Thus in Monolith Portland Co., 94 NLRB
1358, where an invalid union-security clause was incorporated in the contract
by apparent clerical error, the parties not intending to enact any union-security
clause at all, the Board held that the absence of intent to enact was a defense
to 8 (a) (3) and 8 (b) (2) charges, but not to charges of 8 (a) (1) or 8 (b) (2),
where the actual intent was not communicated to the employees. A similar
conclusion was reached by the Board in Port Chester Corp., 97 NLRB 354, where
the invalid clause was knowingly enacted, but the Board accepted oral testimony
to the effect that the parties intended not to enforce it.
At the outset it is probably not inapposite to observe that the problem arises
solely as the result of a temporary contractual hiatus caused by the filing of a
rival claim. On the basis of the long history of continuous contractual relations
and the form of the 1950 contract (reenactment of the old agreement), it seems
likely that but for the pendency of the representation proceedings there would
have been no contractual lapse. All old employees would consequently have been,
or under obligation to have been, union members on May 10, 1950, and could
legally have been required to maintain such membership without interruption1e
In such a circumstance it may be doubted whether the Krause Milling principle
would be applicable at all. This, however, it is unnecessary to decide. But at
the very least, the circumstance is relevant for its bearing on the good faith of
the parties.
The first, and I find decisive, question is whether the contract established a
requirement depriving employees entitled to it of the statutory escape period.
In my judgment, considered as a whole, the contract did not do so. In construing
contractual provisions the Board has said, quoting Williston on Contracts (Sagi-
naw Furniture Co., 97 NLRB 1488) : "An interpretation which makes the contract
or agreement lawful will be preferred over one which makes it unlawful." Sec-
tion 4 (b) of the 1950 agreement cannot be considered in vaouo. It must be con-
strued in conjunction with section 17 providing in substance, that the law and not
the contract shall prevail in the event of conflict with Federal or State regulation.
In two recent cases, American Seating Co., 98 NLRB 800, and Owens-Illinois
Glass Co., 96 NLRB 640,18 the Board has determined that union-security clauses
which in vacuo would be violative of the statute, were valid when read along with
savings clauses or other language making the contract subject to the law. Thus,
in the Owens-Illinois case, the clause read as follows :
15 On this , however, a caveat. I assume, without deciding , that no distinction will be
drawn between old employees actually union members on the effective date, and old em-
ployees under legal prior contractual obligation to be.
26 Cf Green Bay Drop Forge Co, 9T NLRB 642; F. H McGraw and Co, 99 NLRB 695
1570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Membership in the [ Union ] shall constitute a condition of employment for
all employees covered by this agreement subject to Section S (a) (3) [of the
LMRA]. New employees shall become members of [the Union] within thirty
( 30) days from date of their employment.
The Board found "without merit" the contention that the savings language did
not modify the agreement , saying:
... the incorporation by direct reference of the provisions of Section
8 (a) (3) of the Act into the union-security provision constitutes a lawful,
if inartistic , union-security agreement . The second section of the provision
is not inconsistent with Section 8 (a) (3), and is, in effect , redundant.
While it is true that the clause there involved referred employees, and others
intent upon interpretation , to a specific statutory source material from which,
with the aid of applicable decisions, they might determine employee tights and
obligations , and while the instant clause only referred scanners to "Federal
or State law," the latter phrase does not seem substantially less informative
under the circumstances than the former . A scholarship capable of construing
"Section 8 ( a) (3)" should not be measurably taxed interpreting "Federal law."
In the American Coating Mills case, the union -security clause, section 4, was
substantially similar , so far as here relevant , to that in the instant case and
Owens-Illinois . Section 53 of the American Coating Mills contract had the
following savings clause :
This contract is subject in all respects to the provisions of the [LMRA],
as it may be amended from time to time , there being no intent in this con-
tract to limit or abridge in any manner the rights and privileges extended
by said Act . Any requirement of Federal Law, regulation , or presidential
executive order which supersedes any of the provisions of this contract
shall be followed by the company and the union irrespective of the provisions
of this contract.
Except for the fact that the above savings clause specifically referred to the
LMRA ; which the instant clause did not ; and added certain additional specific
materials to be consulted: regulations and executive orders; and also that it
declared the contractors ' good motives-which in the instant case are otherwise
and more reliably established-I cannot see that the American Coating Mills
savings clause section 53 does anything more than section 17 of the National
Container clause: namely to declare that in the event of any conflict between
the law and the contract , the contract is to he construed as modified by the law.
In accordance with what I thus conceive to be the applicable principle of the
Owens-Illinois and American Coating Mills decisions , I find that when read in
conjunction with section 17 of the contract , section 4 ( b) did not require union
membership in violation of Section 8 (a) (3) of the Act.
Other pertinent factors, no single one or several of which are determinative
by themselves , when considered in combination , also tend , in my judgment, to
support the conclusion that a finding of violation is not, in the particular
circumstances , warranted.
Though intent to conform to the law is no defense where a malefactor, with
the best of motives, but ignorantly , takes action inconsistent with the law ; the
bona fides of parties are in appropriate situations evidence to be considered along
with other relevant circumstances in determining whether there has been a
violation . In the instant case the contracting parties sought to comply with
NATIONAL CONTAINER CORPORATION 1571
the law. They did more, however, than merely piously declaring their intention,
or attempting to draft a valid document on their own resources. They took the
affirmative step of requesting an opinion from the General Counsel's repre-
sentative.
The question they presented was not an easy one, as the history of Board
decisions since that time discloses. The opinion they received was that the
clause was apparently within the law. It is true that such an opinion could
not bind the Board, a fact mutually understood. Nevertheless, with no more
authoritative guides available in a relatively uncharted sea, it was scarcely un-
reasonable for the parties to have relied upon the opinion. For 31/2 years the
clause was in effect without attack ; in the meantime it was scrutinized by the
Regional Office in connection with the union-shop election, without suggestion
that any part of it was illegal. The first time question was raised as to its
validity, in May 1951, the parties promptly reformed it ; an act, as has been
seen, quite inefficacious, but under the circumstances, about all they could do
to remedy the matter.17 The uncontested evidence is that the clause was never
enforced after May 10, 1950. What affirmative evidence there is, is to the effect
that employees who sought to comply with it were told in substance that it was
being waived. The contract is now no longer in existence, and was not at the
time the second complaint, alleging its invalidity, was issued. It cannot there-
fore be set aside. The maximum remedy possible to fashion if a violation were
found would be to order the Company not to execute any such contracts in the
future.
Finally, the remedy suggested by the General Counsel in his brief, namely
"withdrawing and withholding recognition from Local 444 until certified," would
deprive Local 444 of the status of a certified collective-bargaining representative,
to which I have already found it to have been entitled, and which has already
been withheld for over 2 years. Though beaten in the election, and its objec-
tions without merit, Local 1 would secure another election while preventing
certification of the winner. This is exactly the remedy it would have got if its
objections had been sustained.
Stabilized collective bargaining has already been too long delayed. The com-
ment of Local 444 counsel is apt : 410 out of 436 employees in the unit voted to
have a collective-bargaining representative ; 3 voted against it ; the effect of the
proceedings thus far is that the 3 votes won the election. I do not think that
situation should prevail any longer.
[Recommendations omitted from publication in this volume.]
17 For a situation where a reformed previously invalid union-security contract was held
to be a bar to an election, see Avco Mfg. Corp, 97 NLRB 645
IsI understand the General Counsel to mean by this that, regardless of the disposition
of the objections, recognition should be withheld for the customary 60-day posting period,
at the end of which time another election should be held. Otherwise the request is mean-
ingless • If the objections are dismissed, Local 444 will be certified, and the Company
could then immediately recognize it ; if the General Counsel's proposed remedy is adopted,
there would be no necessity to pass upon the objections; the remedy even if they were
sustained , would be substantially the same as what is proposed under the complaint.