Pall Corp.

National Labor Relations Board - Board Decisions

May 28, 1971

190 N.L.R.B. 594 (N.L.R.B. 1971)

594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Environmental Control Systems , a Division of the Pall
Corporation and Local Union No. 1614, Interna-
tional Brotherhood of Electrical Workers, AFL-
CIO and Local 1614, Independent , Party to the Con-
tract . Case 29-CA-1837
May 28, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On December 9, 1970, Trial Examiner Gordon J.
Myatt issued his Decision in the above-entitled pro-
ceeding, finding that the Respondent had not engaged
in certain unfair labor practices alleged in the com-
plaint, and recommending that the complaint be dis-
missed in its entirety, as set forth in the attached Trial
Examiner's Decision. Thereafter, the General Counsel
and the Charging Party filed exceptions to the Trial
Examiner's Decision and supporting briefs, and the
Respondent filed a reply brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and briefs, and the
entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the Recommended Order of
the Trial Examiner and hereby orders that the com-
plaint herein be, and it hereby is, dismissed in its en-
tirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GORDON J. MYATT, Trial Examiner: Upon a charge filed
October 23, 1969,' by Local Union No. 1614, International
Brotherhood of Electrical Workers, AFL-CIO (hereinafter
referred to as Local 1614, IBEW), against Environmental
Control Systems, a Division of the Pall Corporation (here-
inafter referred to as the Respondent), a complaint and notice
of hearing was issued by the Regional Director of Region 29
' To the extent that the result reached herein is inconsistent with our
Decision in Air Master Corporation, 142 NLRB 181, enforcement denied
339 F 2d 553 (C A 3), that Decision is overruled
' Unless otherwise indicated, all dated herein refer to the year 1969.
on April 29, 1970. Substantively the complaint alleged that
the Respondent violated Section 8(a)(1), (2) and (3) of the
Act, as amended. The gravamen of the complaint is that the
Respondent recognized and contracted with Local 1614, In-
dependent (hereinafter called the Independent), as the collec-
tive-bargaining representative of its production and mainte-
nance employees during the term of an existing contract with
Local 1614, IBEW covering these same employees. The Re-
spondent's answer admitted recognizing and contracting with
the Independent, but denied such conduct constituted a viola-
tion of the Act.'
This case was tried before me in Brooklyn, New York, on
June 23, 24, and 25 and July 22, 1970. All parties were
represented by counsel and were afforded full opportunity to
be heard and to introduce relevant evidence on the issues.
Briefs were submitted by all counsel and they have been fully
considered by me in arriving at my decision in this case.'
Upon the entire record herein, including my evaluation of
the testimony of the witnesses, based on my observation of
their demeanor and on consideration of the relevant evidence,
I make the following:
FINDINGS OF FACT
I JURISDICTIONAL FINDINGS
The Respondent is a New York corporation engaged in the
manufacture, sale, and distribution of filtration equipment
and other related products. The Respondent's principal office
is located in Glen Cove, Long Island, in the State of New
York. It maintains as a division of its corporate setup a
facility called Environmental Control Systems which is
located in the borough of Queens, New York. Environmental
Control Systems is the only facility of the Respondent in-
volved in this case. During the past calendar year, the Re-
spondent, in the course of its business operations, manufac-
tured, sold, and distributed products at its Environmental
Control Systems division valued in excess of $50,000 and
shipped products from that facility valued in excess of
$50,000 directly to points located in States other than the
State of New York. During the same period the Respondent
manufactured, sold, and distributed from its Environmental
Control Systems facility products valued in excess of $50,000
which were supplied to the aerospace industry and had a
substantial impact upon the national defense.
On the basis of the foregoing, I find that the Respondent
is, and has been at all times material herein, an employer
within the meaning of Section 2(6) and (7) of the Act.
' The Respondent asserted as a separate affirmative defense that the
charge underlying the complaint was filed more than 6 months prior to the
commission of the acts alleged to be unfair labor practices , and hence the
complaint is barred by Section 10(b) of the Act. Examination of the formal
documents indicates that the unfair labor practices are alleged to have
occurred on April 23, 1969, and that the charge was filed and served on
October 23 , 1969 Since the computation of the 6-month period , after which
the 10 (b) proviso extinguishes the right to initiate proceedings , excludes the
day on which the unfair labor practice occurred, I find that the charges
herein were timely filed Accordingly, I hereby reject the Respondent's
claim that the complaint is barred by operation of Section 10(b) of the Act
The Baltimore Transfer Company ofBalttmore City, Inc, 94 NLRB 1680-
82
' The General Counsel's brief also contained a motion to correct the
official transcript of the proceedings in certain respects Respondent's coun-
sel concurred in part and objected in part to the proposed corrections Upon
reviewing my notes and my recollection of the trial and the testimony
therein, I hereby overrule the Respondent's objections and order the official
transcript be corrected in the manner indicated by the General Counsel
190 NLRB No. 119
ENVIRONMENTAL CONTROL SYSTEMS
II THE LABOR ORGANIZATION INVOLVED
Local 1614, Independent, is a labor organization within the
meaning of Section 2(5) of the Act.'
III THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts'
1. The dispute between local 1614, IBEW, and the
International Union
Local 1614, IBEW had been a chartered local of the IBEW
for a period of approximately 20 years. Prior to April 1969,
the officers of the Local were Max Sanchez, president; Milton
Silverman, business manager and chief operating officer; So-
phie Oschuk, recording secretary; and Louis Pavlo, financial
secretary-treasurer. Local 1614, IBEW represented em-
ployees at a number of plants in the metropolitan New York
area and had been the collective-bargaining representative for
the Respondent's production and maintenance employees at
the Environmental Control Systems facility since its location
in Queens in August 1964. The Respondent and Local 1614,
IBEW, were parties to successive collective-bargaining agree-
ments, the latest of which contained a termination date of
June 30, 1971.
The officers of Local 1614, IBEW, were also the principal
officers of Local 810, International Brotherhood of Team-
sters. Sometime prior to April 1969, Local 810 began an
organizing drive among the employees of Brentano's Inc.,
who were represented by a local of the Retail Clerks Interna-
tional Association. As a result of this organizing effort, the
Retail Clerks filed a charge under the internal disputes plan
of the AFL-CIO against the IBEW International on the
ground that Local 1614, IBEW, had violated the AFL-CIO
"no raiding" provisions. Impartial umpire David L. Cole
rendered a determination on April 9, 1970, in which he held
that Local 1614, IBEW, and its officers were the real parties
in interest in the dispute with the Retail Clerks concerning
the Brentano employees. Cole held that by virtue of the dis-
puted conduct, Local 1614, IBEW, had violated the provi-
sions of the AFL-CIO constitution.
The day following Cole's determination, Pillard, Interna-
tional president of the IBEW, sent a telegram to Silverman
requesting Local 1614 withdraw its petition before the Board
for the Brentano employees. Sanchez sent a reply telegram
disclaiming any interest on the part of Local 1614, IBEW, in
the Brentano employees and stating that Cole's determina-
tion was erroneous. Pillard then by telegram directed Silver-
man to furnish the International with a complete list of all of
the employers with whom the Local had collective-bargain-
ing agreements.6 Sanchez again responded to this communi-
' My findings regarding the question of whether Local 1614, IBEW, is a
viable labor organization are contained in the Concluding Findings of this
Decision, infra.
' The matters discussed herein were received into evidence over the
strong objections of the Respondent and the Independent at the trial I held
then, and I reaffirm my rulings now, that the evidence concerning the
existence of a dispute between the International Union of IBEW and the
officers of Local 1614, IBEW is relevant and material as background evi-
dence relating to the establishment of the Independent. Since there are no
allegations against the Independent , this background evidence has not been
considered by me in determining whether the Respondent violated the Act
The evidence is deemed relevant, however, to place in proper context the
historical facts leading up to the events which the General Counsel and the
Charging Party claim to be violations of the Act
6 The International had no knowledge of the collective-bargaining agree-
ments negotiated and administered by Local 1614, IBEW From the thrust
of the testimony it is reasonable to conclude that the officers of the Local
never sent copies of their agreements to the International, even though the
IBEW constitution (art XVII, sec 7) required all local union agreements be
595
cation with a telegram requesting a meeting with Pillard. The
International took the position that the officers of Local 1614,
IBEW had failed to respond to the requests of its president,
and through a series of telegrams instructed the officers of the
Local to turn over all books and records and copies of collec-
tive-bargaining agreements to a vice president of the Interna-
tional, or to representatives designated by him'
On May 6, John J. Barry, an International representative
of the IBEW designated to look into the affairs of Local 1614,
IBEW, went to the building where the Local was supposed
to have its offices. Barry discovered that the Local was no
longer housed there and had moved to a new address. Barry
went to the new address but was unable to make contact with
any of the officers. On May 7, Barry returned to the Local's
offices and requested the records and copies of all the collec-
tive-bargaining agreements which the Local had with em-
ployers. His efforts to get these records and documents were
unsuccessful. That same day Barry was formally appointed
by the International to be the trustee of the affairs of Local
1614, IBEW. Following his appointment as trustee, Barry
made repeated attempts to get the books and records and
copies of the collective-bargaining agreements, but without
any success. The only items that were ever turned over to him
were the charter and the seal of Local 1614, IBEW.
2. The advent of the Independent
The testimony indicates that it was the policy of Local
1614, IBEW, to hold quarterly general membership meetings
and monthly meetings of all of the shop stewards from the
various plants where they represented the employees. San-
chez testified that, during the membership meeting in Sep-
tember 1968 and again in December 1968, he brought up the
subject of a need to increase the monthly union dues. Sanchez
and Willett, a shop steward at the Respondent's plant, tes-
tified that some of the members present at these meetings
questioned the union officers about the benefits the members
were recei'ving from the payment of the per capita tax to the
International.' Sanchez and Willett stated that the member-
ship authorized the officers and the executive board of the
Local to investigate the possibility of retaining the amount of
the per capita tax instead of raising the dues and taking
whatever action they deemed necessary.' According to both
of these witnesses, there were regular monthly meetings of
the shop stewards following the membership meetings, and
they discussed the possibility of becoming an independent
union in order to retain the amount of the per capita tax.
Sanchez testified that on March 1, there was a meeting of
the officers and members of the executive board and the
business agents of Local 1614, IBEW. The participants for-
submitted to and approved by the International president, or be null and
void.
' At the trial Sanchez denied receipt of the telegrams from the Interna-
tional Union or any knowledge of them He also denied sending any tele-
grams in response Detailed testimony was given by a secretary employed
by the International who sent the telegrams and who also dispatched and
routed the replies received from Sanchez to the proper union officials Not
only do I credit the secretary's testimony, but from my observation of
Sanchez on the stand, I find it highly unlikely that any telegrams were sent
to the Local or replies sent from it over the signature of Sanchez without
his personal knowledge Accordingly, I do not credit Sanchez regarding his
lack of knowledge of the communications between the International and the
Local on this matter
6 The per capita tax amounted to $1 50 per member per month Among
other things, each member received a copy of a periodical put out by the
International
Minutes of these meetings were not offered into evidence Indeed, based
on Sanchez' testimony, it is highly doubtful that any minutes were ever
taken by the recording secretary
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mally decided at that time to disaffiliate from the IBEW and
to become an independent union.10
Willett testified that the shop stewards were informed in
March of the meeting whereby the Local disaffiliated and
became independent. He further testified that he was told that
he would receive new authorization cards for the Independ-
ent as soon as they were printed. He stated that while there
were no shop meetings with the employees or general mem-
bership meetings after the disaffiliation, he and the other shop
steward discussed the disaffiliation action with the Respond-
ent's employees in the plant." The record further indicates
that notification was never sent to the International Union
informing them that the Local now considered itself inde-
pendent.
B. The Events Which Led to the Signing of the Contract
Between the Independent and the Respondent
On April 23, 1969, at approximately 10 a.m., a business
agent from the Independent came to the plant and gave the
two shop stewards a stack of authorization cards to be signed
by the employees. The stewards began distributing the cards
to the employees throughout the morning and during the
lunch hours 12 The Respondent employed approximately 75
production employees and of this number 71 signed cards for
the Independent. Willett testified that he and the other shop
steward gave the cards to the employees and they told the
employees the cards had to be signed because the Union was
going independent. One of the employees, Edwin Godwin,
testified that he was told that "Max said the Union was going
to become independent because employees were not getting
anything for their $1.50 per capita monthly tax." Godwin
claimed that he argued that there should be a discussion on
the matter before the employees signed the cards, but to no
avail Willett denied that Godwin made any such comment
but simply took the card and signed it." Edward Mobley, a
former employee who was working for the Respondent at the
time, stated that he saw a notice on stationery containing a
union letterhead posted on the bulletin board. The notice
asked the employees to sign the authorization cards to elimi-
nate the need of having to pay a per capita tax to the Interna-
tional Union for the use of their stationery. Mobley testified
10 As in the case of the general membership meetings , minutes were not
offered into evidence to support the action of the union officers The record
discloses, however, that the officers of the Independent filed a report with
the Department of Labor under the Labor-Management Reporting and
Disclosure Act indicating that it was a "terminal report" of Local 1614,
IBEW Examination of this document shows that the period covered by the
report ended on April 30, 1969 (Charging Party's Exh 2 ) A report was also
filed on behalf of Local 1614, Independent, with the Department of Labor
as required by law This report began with the period May 1, 1969 (G C
Exh 18) Thus for reporting purposes, at least , the officers of Local 1614,
Independent , took the position that the Independent came into existence as
of May 1, 1969, and that the Local' s affiliation with the IBEW ended April
30, 1969 The record also discloses that the last payment of the per capita
tax was sent to the International on March 25 This payment was for the
months of January and February 1969
" Although the record does not indicate the extent of the discussion,
employee Godwin testified that the employees questioned the stewards
about a meeting they had-he was uncertain of the month, but placed it prior
to April 23-and were told that it concerned the "changeover from IBEW
to independent "
" The testimony indicates there were no restrictions imposed by the
Respondent on the union stewards prohibiting them from conducting union
business during working hours This apparently had been the practice at the
Respondent 's plant both before and after the disaffiliation
" I find no need to resolve the conflict between the testimony of Godwin
and Willett It is clear that Godwin signed a card and returned it to the shop
steward Whether he protested concerning the lack of a meeting is not
important to the issues framed here
that Willett gave him a card and told him that the purpose
was to eliminate the need to pay the per capita tax to the
International for the use of their stationery. Mobley stated
that a copy of the notice which was posted on the bulletin
board was also affixed to each authorization card when it was
handed to the employees, but Willett denied this and denied
that such a notice was ever posted on the plant bulletin
board."
About 2:30 that same afternoon, Sanchez and several other
officers from Local 1614, Independent, appeared at the Re-
spondent's plant and received the signed authorization cards
from the stewards. Sanchez then went to the office of Grill,
Respondent 's general manager , and gave him the signed
cards.15 Sanchez told Grill that the employees wanted to be
represented by Local 1614, Independent. Grill turned the
cards over to the manager of manufacturing who verified the
signatures of the employees from the Respondent's records.
The cards were then returned to Sanchez Grill agreed to
recognize Local 1614, Independent , as the bargaining repre-
sentative, and Sanchez produced a collective-bargaining
agreement which he and Grill examined; using the agreement
with Local 1614, IBEW, as a basis for comparison. The col-
lective-bargaining agreement was substantially the same as
the contract with Local 1614, IBEW. The only changes in the
agreement were: (1) the name of the Union; and (2) the term
of the contract was from the date of signing to the date of
expiration contained in the IBEW contract, i.e., June 30,
1971.
C. The Events Following the Signing of the Contract with
the Independent
After he was appointed trustee, Barry began his efforts to
call a meeting of the members of Local 1614, IBEW. He got
their names and addresses from the circulation list of the
union publication mailed to all members and sent notices
through the mail of a meeting to be held on June 26. Barry
estimated that approximately 30 to 40 people attended the
meeting16 and he distributed cards to them which authorized
the IBEW to represent them There was no indication on the
cards of any particular local union of the IBEW. At this
meeting he explained why the International imposed the
trusteeship upon Local 1614, IBEW.
Another meeting was held by Barry on July 17. He testified
that it was at this meeting that he first learned of the possibil-
ity of a collective-bargaining agreement between the Re-
spondent and Local 1614, IBEW. Barry held a third meeting
in August and one of the participants gave him a copy of the
collective-bargaining agreement negotiated between the Re-
spondent and Local 1614, Independent. Barry stated that he
called the Respondent's offices and spoke with Harvey Mar-
riner, corporate manager of industrial relations, and asked
why the Respondent signed the contract with Local 1614,
Independent, when the IBEW contract was effective until
June 30, 1971. According to Barry, he was informed that
Sanchez had presented cards signed by the employees indicat-
11 I do not credit Mobley 's statement about a notice being posted on the
bulletin board and being attached to the authorization cards Godwin, whose
testimony was not sympathetic to the Respondent or the Independent, made
no mention of any notice, and Willett specifically denied that there was any
attachment to the cards or any posted notice I find , therefore, that only the
cards were passed out by the stewards and there was no notice on the plant
bulletin board.
" Grill testified that a week or so prior to April 23, he was told by
Sanchez that Local 1614, IBEW, was considering becoming independent
He denied knowing the purpose of Sanchez' visit on April 23, until the latter
announced that the Local was independent and claimed majority status
16 Barry estimated that six of the persons attending the meeting were
employees of the Respondent
ENVIRONMENTAL CONTROL SYSTEMS 597
ing they wanted to be represented by the Independent. Barry
stated that Marnner promised to provide him with a copy of
the Independent's authorization card.
On August 19, Barry sent a letter to the Respondent stating
that it was his understanding that the Respondent had a
collective-bargaining agreement with Local 1614, IBEW, and
that under the terms of the agreement dues were to be
checked off and remitted to the Union. Barry demanded in
the letter that the dues continue to be checked off and sent
to him as trustee for Local 1614, IBEW.
Marriner testified that he had no contact with Barry until
after the Respondent had received a copy of the letter advis-
ing them of the trusteeship on August 19. He stated he called
Barry and agreed to find out all of the facts concerning the
signing of the contract with the Independent. Marriner in-
dicated that during the conversation Barry told him that the
Respondent should continue to recognize Local 1614, IBEW,
and that the dues should be remitted to him as trustee. Ac-
cording to Marriner, on August 26, he received a call from
Barry and he informed Barry of the circumstances under
which the Respondent signed the contract with the Independ-
ent. He subsequently wrote a letter to Barry on September 11,
enclosing a copy of a blank authorization card similar to the
ones signed by the employees for the Independent. The card
also contained authorization for the Respondent to check off
dues and initiation fees and remit them to the Independent.
There was no further communication between the Respond-
ent and Barry following Marriner's letter.
Concluding Findings
The General Counsel and the Charging Party contend that
the incumbency of Local 1614, IBEW, and the preexisting
contract with the Respondent gave rise to a question concern-
ing representation on April 23, when the Independent
claimed to represent a majority of the employees. Applying
the Midwest Piping doctrine," it is claimed that the Respond-
ent interfered with its employees' right of self-organization
and gave unlawful assistance to the Independent, by arrogat-
ing unto itself the determination of which labor organization
represented the employees. The General Counsel further con-
tends that the Independent did not represent an "uncoerced"
majority at the time it was accorded recognition by the Re-
spondent. To support this argument it is contended that the
cards presented by the Independent did not truly reflect the
wishes of the employees because the representatives of the
Independent did not disclose the real purpose underlying the
disaffiliation from the IBEW, and the members of Local 1614,
IBEW, were not given an opportunity to vote on the matter.
Extending this argument further, it is claimed that, even if the
Respondent acted in complete good faith when it recognized
and contracted with Independent, such bona fides would not,
under the Supreme Court's decision in Bernhard-Altmann,18
constitute a valid defense to the violations charged.
The Respondent, on the other hand, argues that the Inde-
pendent was a continuation of the IBEW local. Having in
good faith established that the Independent represented the
majority of the employees, the Respondent contends that it
was under a statutory obligation to recognize and bargain
with that organization. Respondent further contends that
Local 1614, IBEW, was not a viable labor organization at the
time of the Independent's demand and had "abdicated its
incumbency." Hence, there was no question concerning rep-
" Midwest Piping & Supply Co., Inc, 63 NLRB 1060
1 8 International Ladies' Garment Workers' Union, A F L - C I O [Bernhard-
Altmann] v NL R.B., 366 U S 731
resentation when it recognized and executed a collective-
bargaining agreement with the Independent."
The striking feature about this case is that the charge and
the complaint are against the Employer, while the evidence
presented at the trial would seem to indicate, by and large,
that the unlawful conduct was engaged in by Local 1614,
Independent. As previously noted, evidence was admitted to
establish the existence of a dispute between the International
Union and its affiliated local, but this in no way goes to the
basic issue of the Respondent's culpability, or lack thereof,
absent a showing of complicity in or knowledge of the in-
traunion dispute. There is not a scintilla of evidence in this
record which indicates that Respondent had any knowledge
of the dispute between the International and the Local. The
issue, therefore, narrows down to the critical question of
whether the Respondent was faced with a question concern-
ing representation at the time it recognized and contracted
with the Independent during the term of the collective-bar-
gaining agreement with Local 1614, IBEW.
While it is argued that the incumbency and the preexisting
contract of Local 1614, IBEW, were sufficient to raise a ques-
tion concerning representation under the Midwest Piping the-
ory, I do not agree. The evidence discloses that the Respond-
ent was informed by Sanchez several weeks before the
Independent presented its claim of majority that Local 1614,
IBEW, was considering disaffiliation and adopting an inde-
pendent status. On April 23, the officers and shop stewards
presented the Respondent with 71 signed cards; the signa-
tures of which were verified by the Respondent's representa-
tives. The Respondent at this point was dealing with the same
contractual bargaining representative as it had in the past-
the only difference being that the Local was no longer affi-
liated with the IBEW. The officers remained the same and the
stewards continued in their positions and these same in-
dividuals continued to represent the Respondent's employees.
Kimco Auto Products, Inc., 183 NLRB No. 109. Since the
preexisting contract was executed by Local 1614, IBEW,
only, and the International was not a party thereto, there was
no confusion regarding the identity of the collective-bargain-
ing representative. This is not a true schismatic situation
where a basic conflict over policy existed at the highest level
of an international union causing a disruption in intraunion
relationships. Nor was the disaffiliation the result of such a
conflict thereby causing confusion in the bargaining relation-
ship." Rather, the situation in this case is at best a pseudos-
chism resulting in a disaffiliation brought about by a disagree-
ment between an international and an affiliated local union.
Kimco Auto Products, Inc., supra; The Prudential Insurance
Company of America, 106 NLRB 237, 240. As such, the
change in name and status of the bargaining representative
did not present the Respondent with rival claims of represen-
tation from different organizations. To the contrary, since
Local 1614, IBEW, and the Respondent were the only parties
to the preexisting agreement, the Independent was merely a
continuation of the organization which represented the em-
ployees and was now disaffiliated from the IBEW. Kimco
19 Local 1614, Independent, as party to the contract, also advanced this
argument In addition the Independent claimed that, since the agreement
wifli Local 1614, IBEW, was never sent to the International Union for
approval by the International president, it was null and void by the terms
of the IBEW's own constitution This latter argument was characterized in
the Charging Party's brief as a classic example of "Chutzpah " Suffice it to
say that the Independent's contention on this point is completely without
merit for several reasons, not the least of which is the fact that the officers
of Local 1614, Independent, are estopped from asserting the invalidity of an
agreement which they considered valid and administered as officers of Local
1614, IBEW
11 Hershey Chocolate Corporation, 121 NLRB 901
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Auto Products, Inc., supra; The Prudential Insurance Com-
pany of America, supra.
Both the General Counsel and the Charging Party rely
heavily on the Board's decision, affirming the Trial Examiner,
in the Air Master Corporation case.21 In that case the em-
ployer had been a party to successive agreements with a
district of SIU. During negotiations for new agreement,
shortly before the expiration of the existing contract, the
employees voted to change affiliation and signed cards for a
Teamsters local. The stewards, committeemen, and business
agents also switched their allegiance to the Teamsters. Under
the threat of a strike upon the expiration of the existing
agreement, the employer consented to a third party card
check and based on the results recognized and bargained with
the Teamsters. Before a contract was signed with the Team-
sters, an official of the SIU distract contacted the employer
and continued to assert that organization's claim as the col-
lective-bargaining representative of the employees. The Trial
Examiner found that the issue was close, but held that the
Teamsters were not successors to SIU because the claim of
the Teamsters was based on the fact that "an overwhelming
majority of Air Master had switched their allegiance from
SIU to Teamsters 158." Since SIU continued to press its
claim through an officer of the district before the Teamsters
and the employer executed an agreement, the Trial Examiner
found, and the Board affirmed, that a question concerning
representation existed and Midwest Piping controlled the
case.22
While there are many similar aspects in the Air Master case
and the instant case, I am of the opinion that the differences
warrant different conclusions. Although it is not absolutely
clear, my reading of Air Master indicates that the collective-
bargaining agreement was with the SIU district which con-
tinued to assert its claim before the contract was signed with
the Teamsters. In the instant case the preexisting agreement
was between the Respondent and the very labor organization
which was now announcing its change in status and support-
ing its claim of majority representation with signed cards
from an overwhelming number of the employees. At this
point Local 1614, IBEW, was no longer a viable organization.
Its officers and stewards were not officers and stewards of the
Independent and more than 90 percent of the Respondent's
employees had signed authorization cards on behalf of the
Independent. Beyond the bare fact of incumbency and the
pre-existing contract, there was no viable entity to claim
representative status.21 Cf. The Sinclair Manufacturing Com-
pany, 178 NLRB No. 29. Furthermore, the efforts of the
trustee, occurring 3 months after the Respondent executed a
contract with the Independent, are not relevant to the deter-
mination of whether Local 1614, IBEW, was a viable organi-
zation on April 23. It has been held by the Board that evi-
dence of the willingness of an international union or
intermediate body to assume the representative functions of
a local no longer capable of performing such functions is only
relevant to the issue of defunctness when the international or
intermediate body is a party signatory to the contract. Her-
shey Chocolate Company, supra, pp. 911-912. In the instant
case, only Local 1614, IBEW, and the Respondent were par-
ties to the preexisting contract The fact that the Local did
not send its agreements to the International for approval may
be a breach of internal union requirements, but it in no way
confers upon the International the status of a signatory to the
collective-bargaining agreement. In these circumstances it
cannot persuasively be contended that the Respondent was
faced with a claim from more than one viable labor organiza-
tion. The Sinclair Manufacturing Company, supra.
The further contention that the Independent did not repre-
sent an "uncoerced" majority at the time it was recognized
by the Respondent is also without merit. The credited evi-
dence discloses that the membership of Local 1614, IBEW,
was concerned about having to pay increased monthly dues
and authorized the officers to "take whatever action neces-
sary" to avoid payment of the per capita tax in order to keep
the dues at the current level. It is true that the dispute with
the International over the Brentano affair occurred shortly
before the disaffiliation, but it cannot be conclusively said that
the dispute was the sole motivating factor causing the dis-
affiliation. Indeed, the facts are such that it is possible to
conclude that the Brentano dispute merely accelerated action
previously decided upon. I find, therefore, that the employees
were informed by the stewards of at least one of the reasons
for the disaffiliation, and they indicated their agreement with
the decision by signing the authorization cards for the Inde-
pendent. It follows that the signed cards did in fact reflect the
views of the employees and that the Respondent had a right
to rely on them. Accordingly, I reject the General Counsel's
application of Bernhard-Altmann, supra, to the facts of this
case. There is no question regarding the bona fides of the
Respondent in this matter. Having found that the Independ-
ent did have valid majority support, and since the evidence
shows that the Respondent took reasonable steps to verify the
Independent's claim, I find that Bernhard-Altmann has no
application to the facts of this case.
It should be observed at this point that there is much about
this case which leaves a bad taste and that many of the
matters developed during the trial more properly belong
before another forum rather than before the National Labor
Relations Board. It should also be observed that the relief and
remedy sought by the General Counsel could possibly have
been achieved had there been allegations against the Inde-
pendent Union. But even if there had been joint allegations
against the Independent as well as the Respondent Employer,
I would be inclined to adhere to the reasoning in this Decision
and find that the Employer had not violated the Act on the
basis of the facts presented here.2'
In sum, then, I find that in the circumstances of this case
the Respondent Employer did not commit a violation of Sec-
tion 8(a)(1), (2), and (3) of the Act by recognizing and con-
tracting with Local 1614, Independent, on April 23, 1969.
CONCLUSIONS OF LAW
1. Environmental Control Systems, a Division of the Pall
Corporation, is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Local 1614, Independent, is a labor organization within
the meaning of Section 2(5) of the Act.
3. By recognizing and contracting with Local 1614, Inde-
pendent, on April 23, 1969, the Respondent did not violate
Section 8(a)(1), (2), and (3) of the Act.
142 NLRB 181, enforcement denied 339 F 2d 553 (C.A. 3)
" The Third Circuit found factually that there was an uncoerced switch
in allegiance and refused to enforce the Board 's Order
_' Indeed, an argument can be made that the representatives of the Inter-
national did not consider Local 1614 , IBEW, to be a viable entity This
would account for Barry seeking to get the former members, who attended
the meetings he held during June, July, and August , to sign cards for the
IBEW and not for any designated local
" Compare Brittany Dyeing and Printing Corp, 126 NLRB 785 There
Trial Examiner Ricci found, and the Board affirmed, that an employer had
violated Section 8(a)(2) of the Act by entering into a contract with one of
two competing unions but held that the union party to the contract had not
committed a violation It would appear that much of the reasoning followed
in that case absolving the union would likewise pertain to the employer in
the instant case
ENVIRONMENTAL CONTROL SYSTEMS 599
Additional Ruling
On November 4, 1970 , Respondent filed a document in the
nature of a motion asking that the Board exercise its adminis-
trative discretion and terminate the proceedings in this case.
As ground for this action the Respondent alleges that it is
completely phasing out its operation at the Environmental
Control Systems facility and the proceeding herein would
serve no useful public purpose. Both the General Counsel and
the Charging Party filed oppositions to this request.
On the basis of the representations before me, I hereby
deny the Respondent's request to terminate these proceed-
ings. The Respondent , of course, has the right to renew its
request when this matter is transferred to the Board.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and conclu-
sions of law and upon the entire record in this case , I recom-
mend that the allegations of the complaint herein be dis-
missed in their entirety.