Peter Paul, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1970

185 N.L.R.B. 281 (N.L.R.B. 1970)

PETER PAUL, INC
Peter Paul, Inc . and International Longshoremen's
and Warehousemen 's Union, Local No. 6 and
Industrial Candy Workers Union, Intervenor. Case
20-CA-5000
August 27, 1970
DECISION AND ORDER
On May 27, 1969, Trial Examiner Louis S. Penfield
issued his decision in the above-entitled proceeding,
finding that Respondent had engaged in and was
engaging in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached
Trial Examiner's Decision. The Trial Examiner further
found that the Respondent had not engaged in certain
other unfair labor practices alleged in the complaint,
and recommended that those allegations be dismissed.
Thereafter, the Respondent and the Intervenor filed
exceptions to the Decision and supporting briefs, and
the General Counsel filed an answering brief.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are here-
by affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case,' and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the Recommended
Order of the Trial Examiner and hereby orders that
the Respondent, Peter Paul, Inc., Salinas, California,
its officers, agents, successors, and assigns, shall take
the action as set forth in the Trial Examiner's Recom-
mended Order.
' The Respondent has requested oral argument This request is hereby
denied, as the record, the exceptions, and the briefs adequately present
the issues and the positions of the parties
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Louis S. PENFIELD, Trial Examiner. This proceeding,
with all parties represented, was heard before me in Monte-
rey, California, on November 25, 26, and 27, 1968, upon
a complaint of the General Counsel and answer of Peter
281
Paul Inc., herein called Respondent.' The issues litigated
were whether Respondent violated Section 8(a)(1) and (2)
of the National Labor Relations Act, as amended, herein
called the Act A motion to intervene made by Industrial
Candy Workers Union, herein called ICW, was granted
at the opening of the hearing.
Following the close of the hearing, Counsel for Respond-
ent filed a motion to correct the transcript in certain
respects. No opposition to such motion was received from
representatives of any of the other parties. I have considered
the specific corrections urged by counsel for Respondent,
and find that they are in accord with my own recollection.
Accordingly the motion is granted, and each of the specific
corrections noted in counsel's motion to correct the tran-
script is hereby directed It may be further noted that
counsel for Respondent has asserted the transcript to be
garbled in certain respects Counsel does not urge specific
changes to clarify it however. I have considered those
garbled portions which counsel notes, and agree that they
show evidence of distortion. I am of the opinion, however,
that in no instance are there distortions of such magnitude
that specific correction is needed in order to resolve the
issues before us. Accordingly, while I regret the inelegant,
and sometimes unintelligible, statements attributed to vari-
ous persons including the Trial Examiner, I am of the
opinion that it will serve no significantly useful purpose
to undertake further corrections.
Upon the entire record, including consideration of briefs
filed by the General Counsel, Respondent, and the Interve-
nor, and upon my observation of the witnesses, I hereby
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Respondent is a corporation with a place of business
located at Salinas, California, where it is engaged in the
manufacture and sale of candy. Respondent during the
past year in the course and conduct of such business
sold and shipped goods valued in excess of $50,000 directly
to customers located outside the State of California. I
find the Respondent to be engaged in a business affecting
commerce within the meaning of the Act, and assertion
of jurisdiction in this proceeding to be warranted.
II. THE LABOR ORGANIZATIONS INVOLVED
The Charging Party, International Longshoremen's and
Warehousemen's Union, Local No. 6, herein called ILWU,
and the Intervenor, Industrial Candy Workers Union, herein
called ICW, are each labor organizations within the meaning
of Section 2(5) of the Act
' The complaint issued on September 17, 1968 The complaint is
based on an original charge filed on May 16, 1968, and an amended
charge filed on June 20, 1968 Copies of the complaint, the charge,
and the amended charge have been duly served on Respondent
185 NLRB No. 64
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IIi. THE ALLEGED UNFAIR LABOR PRACTICES
The central issue concerns the allegation that Respondent
has violated Section 8(a)(1) and (2) of the Act by continuing
to recognize and bargain with ICW as the exclusive bargain-
ing representative of its employees at a time when ILWU
had raised a real question concerning the representation
of such employees. Subsidiary issues concern alleged threats,
interrogations, promises of benefit, and the promulgation
of an unlawful no-solicitation rule claimed to be violative
of Section 8(a)(1) of the Act Respondent denies that a
real question of representation existed, and insists that
it was lawfully entitled to continue to recognize and bargain
with ICW. Respondent also denies that it engaged in the
alleged unlawful conduct claimed by the General Counsel
to be violative of Section 8(a)(1).
A. The Alleged Unlawful Bargaining With ICW
The facts concerning the bargaining history and the
circumstances surrounding Respondent's continued recogni-
tion and bargaining with ICW are substantially undisputed
and may be summarized as follows:
(1) Respondent first recognized and bargained with a
predecessor of ICW in 1952. The predecessor of ICW
was first certified as the statutory representative of Respond-
ent's employees in 1952. The predecessor was recertified
in 1960, and in 1962 the certification was amended to
change the original name to its present designation as
Industrial Candy Workers Union.
(2) Respondent has been party to an unbroken series
of collective-bargaining agreements between ICW, or its
predecessor, since 1952. Originally the certification and
the collective-bargaining agreements covered employees at
a plant then located in Oakland, California. In 1966 the
plant was moved from Oakland to Salinas. This move
occurred while a collective-bargaining agreement was still
in effect and resulted in no interruption in the bargaining
situation. The most recent collective-bargaining agreement
with ICW prior to the filing of the charges herein covered
a period from July 1, 1966, to June 30, 1968. It purported
to cover a bargaining unit of "all production and mainte-
nance employees including cafeteria employees, warehouse
employees and on-call employees, excluding office clerical
employees, nurses, professional employees and guards and
supervisors as defined by the Act."
(3) ICW served written notice on Respondent that it
desired to negotiate a new contract on March 19, 1968,
and four negotiation meetings had been held by Respondent
and ICW prior to May 1, 1968.
(4) On April 29, 1968, ILWU filed a petition purporting
to cover Respondent's employees in a proceeding numbered
case 20-RC-8126. A copy of this petition and a letter
signed by the Regional Director for Region 20 was served
on Respondent on May 1, 1968. The petition set forth
the name of the employer, the location of the plant, the
nature of the business, described the bargaining unit as
"all employees covered by current agreement," asserted
the unit to be comprised of 141 employees, asserted that
the petition was supported by 30 percent or more employees
in the unit, and represented ICW to be the current represent-
ative of these employees with a contract which was to
expire on June 30, 1968. The petitioner was named as
"Warehouse, Processing and Allied Workers, Local 6
ILWU." The petition was signed by an International repre-
sentative of ILWU. The accompanying letter from the
Regional Director requested that Respondent furnish to
the Regional Office jurisdictional data, and in order to
establish if the petition were supported by 30 percent of
the employees that Respondent "submit as soon as possible
a list of the names of all employees within the described
unit with their respective job classifications, prepared from
your most recent payroll." Section 7(a) of the petition,
dealing with the petitioner's request for recognition and
the employer's response, was left blank. It has not been
shown that at any time either prior to the filing of the
petition, or thereafter, ILWU ever requested recognition
of Respondent as the statutory representative of its employ-
ees. Nor has it been shown that at any time relevant
to this proceeding have a majority of Respondent's employ-
ees in the contract unit purported to designate ILWU
as their representative.
(5) ILWU Representative Fagerhaugh testified that he
personally delivered the petition to the Regional Office
on April 29, and at the same time delivered 45 authorization
cards purporting to have been signed by employees of
Respondent A blank card identified as similar to those
submitted sets forth that the signer was petitioning the
Board to conduct a secret ballot election, and that he
was designating ILWU as his bargaining agent. Fagerhaugh
further testified that approximately a week later he delivered
five additional cards to the Regional Office. Respondent
and ICW demanded production of the signed cards so
the sufficiency of the showing could be litigated. The General
Counsel declined to produce the cards, stating that interest
showing was a nonlitigable issue, and that the Regional
Director's allegation in the complaint that ILWU had made
a "showing of interest sufficient to warrant processing
the petition" was a sufficient administrative determination
as to any sufficiency if showing issue. The Trial Examiner
did not direct production of the cards. The General Counsel,
however, did offer to submit the cards to the Trial Examiner
for examination in camera. The Trial Examiner declined
to make an in camera inspection.
(6) On May 3, 1968, counsel for Respondent sent a
letter to the Regional Office acknowledging receipt of copies
of the petition, and a covering letter furnishing information
concerning Respondent's bargaining history with ICW.
Respondent represented that a majority of the present
employees were members of ICW, and requested information
as to the sufficiency of the showing made by the ILWU
in support of its petition.
(7) On May 8, 1968, the Board's field examiner replied
to counsel's letter stating, among other things, that Respond-
ent had been asked to furnish a payroll list, and representing
that "until I receive this list, it is unfortunately impossible
to check whether the petitioner has a sufficient showing
of interest. However, from the information I now have
at hand, it does appear that the showing of interest is
sufficient."
PETER PAUL, INC
(8) At no time prior to the hearing in the instant case
did Respondent submit a payroll as requested by the Region-
al Director in the representation case.
(9) The collective-bargaining agreement with ICW con-
tained a checkoff authorization provision reading as follows:
The Company agrees to deduct from the earnings
of the employees the monthly membership dues, and
upon written authorization irrevocable for the period
of one year or the anniversary date of this agreement,
whichever is sooner, and remit the same to the financial
secretary of the Union.
It has been established that at the time the petition in
Case 20-RC-8126 was filed Respondent had on its files
121 unrevoked checkoff authorization forms signed by
employees then in the bargaining unit and that such authori-
zations had come from over 80 percent of the unit employees.
These authorization forms purported to authorize Respond-
ent to deduct initiation fee and monthly ICW dues and
to be irrevocable for one year or the date of the expiration
of the ICW contract, whichever date came sooner.
(10) On May 3, 1968, ICW sent Respondent a letter
enclosing 134 new checkoff authorization forms regarding
present employees of Respondent. It has been further estab-
lished that these newly signed authorizations came from
nearly 85 percent of the unit employees. In the same
letter ICW requested that negotiations for a new collective-
bargaining agreement be expedited and completed as soon
as possible.
(11) On or about May 5, Respondent met with ICW
representatives, announced that it felt that ICW still repre-
sented a majority of its employees, that it would continue
to negotiate with ICW, and that it "would do everything
[it] could legally to help [it] keep any other union out."
It was further announced that ICW could continue to
use bulletin boards and have meetings on the premises
as in the past.
(12) Throughout the month of May, Respondent contin-
ued to meet and negotiate with ICW, and by May 31
Respondent and ICW had reached agreement as to the
terms of a new contract On May 31, members of ICW
meeting in Respondent's cafeteria voted to ratify the agree-
ment, and thereafter Respondent and ICW executed a
written memorandum agreement to be effective for 3 years
commencing July 1, 1968. A formal integrated written
document was executed on June 28, 1968.
(13) On May 16, 1968, ILWU filed the charge upon
which the instant proceeding is based, claiming that
Respondent was continuing to recognize and negotiate with
ICW after a question concerning representation of employees
had been raised by the filing of the petition in Case 20-
RC-8126 and that Respondent was therefore engaging in
conduct violative of Section 8(a)(2) of the Act.
(14) Although hearing dates were discussed, no notice
of hearing issued in Case 20-RC-8126, no hearing was
held, and no formal findings or determination of representa-
tive was ever made by the Board or Regional Director
in the representation case. On May 20, 1968, Respondent
was advised by the Regional Office that because of the
filing of the charge in the instant proceeding "further
processing of the petition will await disposition of the
unfair labor practice charge "
283
B. The Conduct of Respondent Alleged to be Violative of
Section 8(a)(1)
The General Counsel contends that during the month
of May following the filing of the ILWU petition Respondent
on various occasions engaged in acts and conduct which
interfered with employee rights. This unlawful conduct
is alleged to include threats, promises of benefit, interroga-
tions, and the promulgation and enforcement of an unlawful
rule prohibiting union activities on company premises.
It was stipulated that Robert S. Gray is the plant manager,
Thomas J. Tatoian, assistant to the plant manager, and
that Jane H. Cedarwall, Stanley Korzuch, Donald E. Gen-
dreau, and Luey Frary are plant supervisors. It is agreed
that at all times material to this proceeding each was
a supervisor within the meaning of the Act
Employee Morris O'Bnant testified that on an occasion
in early May when he and some other employees were
seated at a table in the plant lunchroom, Supervisor Jane
Cedarwall directed a conversation to union activities then
going on at the plant. According to O'Briant, Cedarwall
stated "She didn't exactly understand what the people
wanted or what they were trying to do in the union activities
that were going on." Cedarwall followed this by saying
that "Should another union get in Peter Paul, that the
company should-not state the company would, but stated
that they should close the plant in the Salinas area, or
possibly sell it out to the Green Giant, and possibly pull
all the higher seniority personnel back into some of the
other plants, i e. Dallas area and other areas, possibly
move our operation into Canada." O'Briant then commented
that should the operation be moved into Canada "who
would work for the company up there, the draft dodgers
that were hiding in Canada?" According to O'Briant, this
brought the discussion to a close. Cedarwall specifically
denies making the statements which O'Briant attributes
to her, although she acknowledges that on occasion she
sat at the same table with O'Briant during the lunch hour.
None of the employees alleged to have been present at
the time were identified or called upon to testify. It is
not claimed that Cedarwall made statements of a similar
nature to any other employees at any other time.
As indicated above on May 31, Respondent and ICW
reached an accord on the terms of a new collective-bargain-
ing agreement On that same day a meeting was scheduled
on company premises after working hours, during the course
of which ICW members voted to ratify the agreement
Prior to this meeting, according to employee O'Briant,
Supervisor Korzuch, who had formerly been O'Briant's
immediate supervisor but on this date was not, engaged
O'Bnant in a converstaion. During the course of this conver-
sation , Korzuch questioned O'Briant as to his feelings about
the agreement just negotiated. O'Briant states that following
this Korzuch commented on O'Briant's ability to work
without close supervision, and indicated that new jobs were
due for a posting in the near future, and that O'Briant
might be interested in bidding for them. After this, O'Briant
states that Korzuch brought up the contract ratification
meeting and said "Use your head, Morrie. Get yourself
out of the debit section, get on the right side of the
ledger. Give this thing your 100 percent support, and
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stop all this nonsense that is going around." Following
this, O'Bnant attended the ratification meeting, but it is
not shown to what extent, if any, he participated therein.
Korzuch did not attend the ratification meeting. According
to O'Bnant, following the conclusion of this meeting he
overheard Korzuch talking to Supervisor Gendreau and
one or two unidentified employees. O'Briant states he heard
Korzuch say "I guess 0. B shaped up . . " and "used
his head as well as diplomacy in bowing down . giving
100 percent push on the ratification of the contract." Kor-
zuch denies having had any converstaions with O'Briant
either before or after the ratification meeting in the course
of which he made the remarks which O'Briant attributes
to him. No one else was called to testify on the subject
of the conversation which O'Bnant claims to have overheard
after the meeting.
Employee H. T. Blain testified about a conversation
he had with Supervisor Gendreau which occurred in mid-
July. The General Counsel alleges that during the course
of this conversation Gendreau not only admitted having
engaged in unlawfully enforcing a rule prohibiting union
activity on company premises, but voiced a threat suggesting
that employees might well lose retirement or other benefits
because of ILWU support or other protected concerted
activities Blain, a mechanic, had been working with another
mechanic named Alan Larkin. Following Larkin's vacation
in July, Blain inquired of Gendreau when Larkin was
expected to return to work. According to Blain, Gendreau
appeared disturbed at the time of this inquiry and told
Blain that "there was a girl from the NLRB in to see
him on some charges Alan had filed against him." Blain
states that Gendreau then volunteered that these so-called
charges arose because one of the girls had complained
to him that Larkin had been talking to her about unions.
In response to such complaint, Gendreau then called Larkin
into his office and asked him if he had "been talking
about different unions on company time." Larkin told Gen-
dreau "no, he had not." This appears to comprise the
entire incident. Neither Alan Larkin, the girl who com-
plained, nor Gendreau himself testified. Following this recit-
al of the "charges," which Larkin allegedly had made,
according to Blain, Gendreau remarked that if he had
known that charges would be made against him "he wouldn't
have gone to bat for Larkin to get his retirement" The
latter reference concerns an attempt which was indirectly
made by Larkin to enlist Gendreau's aid in helping Larkin
attain early retirement benefits. Carol Larkin, Alan Larkin's
wife, testified that following the July vacation she had
called Gendreau to inform him that her husband would
not be returning to work for Respondent in the future
for personal reasons. Mrs. Larkin states that she sought
Gendreau's aid in getting some special consideration with
respect to obtaining early retirement benefits for her hus-
band, and that Gendreau had indicated that he would
do what he could. It is neither shown, nor claimed, that
Larkin was deprived of any benefits to which he might
have been entitled for reasons relating to union activities
or for any other reason.
Three subdivisions of paragraph 9 of the complaint relate
to the alleged unlawful promulgation or enforcement by
Respondent of a rule prohibiting union activities on company
premises at any time
Respondent has had no written or published rule regard-
ing restrictions on union activity whether on company
time or premises. Plant Manager Gray testified, however,
that for many years his supervisors had been instructed
that it was Respondent's policy not only to refrain from
interrogating employees concerning union organization and
to maintain strict neutrality in union matters, but to enforce
a rule which would forbid union activities in work areas
during work time, but permit them in nonwork time in
nonwork areas. It was developed that there were numerous
nonwork areas at the plant such as the parking lot, the
cafeteria, the employees' lounge, the locker rooms, and
the restroom, and it is claimed that in such areas employees
were free to discuss union matters. Gray specifically denies
this to be a newly promulgated or newly invoked policy,
or in any way for it to be related to the advent of organiza-
tional activities by ILWU. Gray states that following the
filing of the ILWU petition he had considered the desirability
of embodying this longstanding policy in writing and posting
it on the employee bulletin board. Gray even went so
far as to draft a proposed notice to employees Such draft
recited in substance that working time was for work, and
that while employees might engage in activities for and
against a union on company premises, such activity was
not permitted in work areas during worktime Gray decided,
however, not to post such notice. He states that he refrained
from doing so because no evidence had come to his attention
that with the ILWU campaign the employees were actually
engaging in union activity during working hours, and he
felt that the posting of such a rule might have an upsetting
effect. Thus, it appears that the employees themselves were
not directly apprised in connection with this particular
organizational compaign of what Respondent contends was
its longstanding policy
The General Counsel further asserts that Respondent,
during the course of the ILWU campaign, invoked and
enforced a rule contrary to the one which it claims represent-
ed its actual policy Carol Larkin, a member of the ICW
negotiation committee, testified that at a negotiation meeting
taking place early in May, Plant Manager Gray told the
committee that there would be "no union talk ... near
as I remember on company premises " Gray denies that
on that occasion or at any other time had he ever told
members of the ICW negotiation committee, or anyone
else, that union activities would be restricted except during
working time. He is corroborated in this denial by Assistant
Plant Manager Tatoian. Employee O'Briant testified that
on May 22 he attended a meeting of Respondent's employees
conducted by ILWU. The following morning, O'Briant
states, Supervisor Frary approached him and told him
that he understood that O'Briant had attended the ILWU
meeting and had exhibited considerable interest in ILWU.
O'Briant made no comment, after which he claims Frary
warned him that he was not to talk to other employees
about union activity whether it pertained to ICW or "to
any other damn union." O'Briant makes it clear, however,
that Frary's admonition applied to activity on worktime
in working areas. O'Briant acknowledges that Frary told
him to restrict "any of my conversation as to union activities
PETER PAUL, INC
to the break areas, such as authorized smoke areas, i.e ,
such as company cafeteria or the lobby, the employees'
lobby or in the company cafeteria " Frary was not called
to testify. The alleged unlawful enforcement of the rule
by Supervisor Gendreau pertains to the admission he made
to Blain during the course of which Blain states Gendreau
told him that acting on the complaint of an employee
Gendreau had called in Alan Larkin and asked him if
he had been talking to the employee on company time
As set forth above, Larkin denied that he had done so
and the matter was dropped. No other incidents pertaining
to the alleged invocation or enforcement of a company
rule restricting union activity on company premises were
developed.
C. Discussion of the Issues and Conclusions
The central issue in this proceeding is the alleged unlawful
assistance which Respondent extended to ICW by continuing
to bargain with it after learning that ILWU had filed
a petition. The independent 8(a)(1) allegations represent
a subsidiary issue which is premised on the claim that
Respondent, after learning of the petition, not only unlawful-
ly favored ICW by continuing to bargain with it, but
concurrently embarked upon a series of independent unlaw-
ful acts designed to denigrate ILWU and perpetuate the
incumbency of ICW I shall first treat with the latter
issue, which is primarily factual, and thereafter consider
the legal questions raised by the undisputed facts concerning
Respondent's continued bargaining with ICW.z
I The alleged 8(a)(1) violations
Contrary to the contention of the General Counsel, I
am not convinced that it has been established by a prepon-
derance of evidence that Respondent concurrently with
its decision to continue bargaining with ICW also embarked
' Respondent argues that I should not even consider the 8(a)(1) allega-
tions of the complaint because it cannot be shown that they are supported
by the allegations of any charge pending, and thus are barred by Sec
10(b) of the Act Respondent points out that neither the original nor
the amended charge recite independent 8(a)(1) allegations Respondent
contends that the 8(a)(1) allegations of par 9 of the complaint do
not concern matters sufficiently closely related to the 8(a)(2) aspects
of the charge so that they may be construed to support both I disagree
it is well established that a charge is not a pleading , and that a complaint
may allege violations of sections of the Act not mentioned in the charge,
provided they bear some relationship to the general controversy In
the instant case the general controversy concerns alleged unlawful assist-
ance of one sort or another given by Respondent to the incumbent
ICW This alleged to be evidenced both by continued bargaining and
by various independent acts, an effect of which is to give additional
assistance to ICW Contrary to Respondent I regard these independent
8(a)(1) allegations as fully meeting the so-called "closely related" test
which Respondent claims must be present to support a complaint contain-
ing allegations not set forth in a charge I regard the underlying rationale
of the cases which Respondent cites as supporting the conclusion that
the 8(a)(1) allegations in the complaint here are "closely related" to
the 8(a)(2) allegations in the charge Accordingly, I find that Sec 10(b)
does not proscribe consideration of the allegations in par 9 of the
complaint See NLRB v Dinion Coil Co, 201 F 2d 484 (C A 2),
N L. R B v Pecheur Lozenge Co, 209 F 2d 393 (C A 2), Casino Operations,
Inc, 169 NLRB 328, Exber, Inc d/b/a El Cortez Hotel v NLRB,
390F2d127(CA 9)
285
upon a course of conduct designed to lend further, and
independent, assistance to ICW
The allegations that Respondent promulgated or invoked
restrictive rules as to discussion of union matters on compa-
ny premises will not withstand scrutiny. While Respondent
failed directly to apprise its employees as to the precise
limits of its rules restricting discussion of union matters,
the General Counsel has adduced insufficient evidence to
show that at any time Respondent either had, or had
undertaken to enforce, a rule which did more than restrict
discussions of union matters to working time. The incidents
which the General Counsel urges as leading to a contrary
conclusion are either isolated or inconsequential. Thus we
find employee Larkin recalling that at an ICW negotiation
meeting Plant Manager Gray had said there should be
no union talk, and she thinks she remembers that this
referred to company premises. Significantly, however, nei-
ther Larkin, nor any other employee, testified that at any
time he had been admonished for engaging in union activities
on company premises as distinguished from working time.
The General Counsel's witnesses Blain and O'Briant both
testified to hearing statements of Gendreau and Frary,
respectively, which did no more than suggest that restriction
of union activities was limited to work areas and worktime.
Under the circumstances I am convinced that Larkin was
mistaken, and that, consistent with his own corroborated
assertion, Gray only told the group at the negotiation
meeting that there should be no union talk in work areas
on worktime Accordingly, I find that it has not been
established that Respondent promulgated any rule forbid-
ding discussion of union matters on company property,
or that its supervisors have been shown to have engaged
in conduct designed to forbid employees to engage in union
activity on company premises. Therefore the allegations
of paragraph 9(b), (c), and (f) have not been sustained.
Apparently the General Counsel relied on Blain 's testimo-
ny regarding his conversation with Gendreau to establish
the interrogation allegation of paragraph 9(e) of the com-
plaint. While it is true that this might be viewed as an
admission by Gendreau that he had questioned Alan Larkin
about his union activities, I do not see such interrogation
as arising in a context that can be deemed unlawful. Blain
states that Gendreau told him that he had questioned
Larkin following the complaint of an employee that Larkin
had talked to her about union matters on company time.
Restriction of union talk on company time is, of course,
lawful, and Gendreau did no more than inquire if Larkin
had in fact engaged in such conduct. When apprised by
Larkin that he had not, the matter was dropped Under
the circumstances I see no unlawful interrogation as having
taken place
Even if we credit O'Briant's testimony as to Cedarwall's
statements in the lunchroom, it conveys no more than
a dubious threat. O'Briant insists that Cedarwall said that
the plant should, not would, move if ILWU came in.
This can be construed as a statement of opinion rather
than a threat, and apparently O'Briant so construed it.
However, not only does Cedarwall herself deny altogether
the statements which O'Bnant attributes to her, but the
General Counsel failed to call for corroborative purposes
other witnesses who O'Briant said were present at the
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lunch table when Cedarwall was speaking. I was not
impressed with O'Briant as a witness He appeared overly
impressed with his own self-importance and not unwilling
to exaggerate to promote such an image. Accordingly,
I credit Cedarwall's denial, and find that she did not
threaten employees with removal of the plant should ILWU
come in.
Like Cedarwall, Supervisor Korzuch also emphatically
denied having suggested to O'Briant that he might receive
rewards if he would press for ratification of the contract
at the ICW meeting. As heretofore indicated, I was not
favorably impressed with O'Briant as a witness. Accordingly,
I credit Korzuch's denial, and find that he did not make
the statements which O'Briant attributes to him.
In the absence of Frary's testimony I must assume that
he did interrogate O'Briant about his attendance at the
ILWU meeting This interrogation, however, stands out
as an isolated incident. Moreover, as we have seen, when
Frary subsequently warned O'Briant to refrain from union
activities, he did not limit his admonition to ILWU activities
alone, but referred to activities for either union, and by
O'Briant's admission limited his warning to union activities
in working areas on working time. Under the circumstances
I deem the interrogation by Frary as an isolated incident
of interference with employee rights and the subsequent
warning as lawful, with neither sufficient to sustain a finding
of violation of Section 8(a)(1) of the Act.
Likewise I attach but scant significance to Blain's unde-
nied testimony that Gendreau told him that he would
not have gone to bat for Larkin regarding his retirement
benefits had he known that Larkin had complained to
a Board agent about Gendreau's interrogation. Gendreau
was upset at the time, having just talked with the Board
agent. The statement did not necessarily suggest that Blain
too might face loss of retirement benefits should he engage
in protected activities, nor does it appear that Blain con-
strued it in this manner. Larkin himself did not testify,
and this record is not entirely clear as to how his retirement
problem was resolved. However, it has not been sufficiently
developed that Blain, or anyone else, had reason to believe
that union activities in any way affected the disposition
of the matter. Under the circumstances I am not prepared
to construe the remark by Gendreau to Blain as a threat
violative of Section 8(a)(1) of the Act.
In the light of the foregoing, I find that the General
Counsel has not sustained the allegations of paragraph
9 of the complaint in sufficient measure to warrant the
issuance of a remedial order. In certain instances I have
not credited the witnesses called to support the allegations.
To the extent that certain of the evidence stands undenied
I regard the incidents as so isolated and insubstantial that
they do not suffice to support the conclusion that Respond-
ent concurrently with its continued bargaining also
embarked upon an independent course of conduct designed
to undermine the organizational activities of ILWU and
furnish additional support to ICW. Accordingly I shall
recommend that the allegations of paragraph 9 of the
complaint be dismissed.
2. The bargaining with ICW
Having found that Respondent has not engaged in inde-
pendent violations of Section 8(a)(1) of the Act, the single
remaining issue concerns the unlawful assistance, if any
there be, which resulted when Respondent continued bar-
gaining with ICW. This issue turns on the proper application
of the Board's so-called Mid-West Piping doctrine.' Both
Respondent and ICW strongly urge the doctrine to be
inapplicable because it has not been established that a
real question concerning representation existed when
Respondent and ICW resumed their course of bargaining.
We must first examine the rationale behind the Mid-West
Piping doctrine itself, and then consider its applicability
to the facts at hand
The Mid- West Piping doctrine is well established, and
has been followed by the Board in a variety of situations.
Essentially it stands for the proposition that an employer,
confronted with rival claims from two unions concerning
the representation of its employees, interferes with basic
employee rights when it undertakes to resolve the question
concerning representation itself by voluntarily extending
recognition to and bargaining with one of the two rival
unions. The doctrine rests on the premise that to grant
recognition and to bargain with a union as exclusive repre-
sentative affects all employees within the unit. Bargaining
of this nature may only lawfully take place with a representa-
tive who is the free choice of a majority of the employees
themselves. When an employer accords recognition to one
of two rivals under circumstances where the choice of
the employees has not been reliably established, it not
only assists that union, but it acts in derogation of the
rights of the employees to make their own free choice.
Thus, while an employer may lawfully recognize a represent-
ative in a one union situation if in fact that union represents
a majority of its employees, when two unions claim represen-
tation at the same time it has no way of knowing which
one the employees actually wish to represent them.' The
dilemma created by the rival claims may be resolved by
use of the Board's Section 9 machinery. A basic purpose
of Section 9 is to provide a means to insure that the
employees themselves may freely choose their representative.
The Mid- West Piping doctrine requires an employer to
use the Section 9 machinery when truly confronted with
rival claims. Should the employer fail to do so and choose
one of the rivals itself, the remedy is to require abandonment
of the choice, with further recognition of any representative
to be withheld until the employees evidence their own
choice in a Board election.
Respondent would not necessarily quarrel with the forego-
ing broad general statement of principles It urges, however,
that the Board itself has noted that not all situations
' The doctrine takes its name from the lead case Mid-West Piping
and Supply Co, Inc, 63 NLRB 1060
' It may be noted that even in a one union situation , an employer
acts at its peril, although not necessarily unlawfully, when it voluntarily
extends recognition It is well established that for an employer to grant
exclusive recognition to a union not in fact the majority representative
of its employees is an unfair labor practice
PETER PAUL, INC 287
where rival claims exist give rise to real questions concerning
representation, which demand use of the Section 9 machin-
ery. It insists that in the instant case circumstances show
that no properly cognizable question concerning representa-
tion had come into being when Respondent and ICW
resumed their bargaining and thus Mid- West Piping is not
applicable.
Respondent's position suggests a further consideration
of the meaning of the term "question concerning representa-
tion," and its place in the statutory scheme. The statute
undertakes to encourage the "practice and procedure of
collective bargaining " To effectuate this end the statute
directly confers rights on employees, not on employers
or unions, and denotes as unfair labor practices various
acts of employers and unions which abridge such rights
One basic right of the employees is to "bargain collectively
through representatives of their own choosing." When the
employees have duly made their choice, the employer and
the chosen representative have a mutual duty to bargain
under terms defined by Section 8(d) of the Act. Section
9 makes the choice of the majority in an appropriate
bargaining unit the exclusive representative of all employees
in the unit, and sets up machinery for determining both
the unit and selection of the representative. This machinery
may be invoked whenever there is a "question concerning
representation." In the broadest sense a question concerning
representation may be said to arise, and possibly invoke
use of Section 9 machinery, whenever a union or individual
makes any sort of claim to represent a group of employees
The Board recognized early in its history, however, that
unlimited processing of casual or possibly specious claims
could result in a waste of its resources and divert it from
its basic objectives.
Thus the Board early in its history held that it would
only process representation claims of a union which appar-
ently were supported by a substantial number of employees.
This support would be most frequently evidenced by cards
signed by employees in the bargaining unit purporting
to authorize a particular union to represent them. The
Board made it clear, however, that while it would require
that cards or similar evidence be submitted, the purpose
of such showing requirement was to guard its processes
against being called upon when there was no reasonable
likelihood that the employees seriously desired any repre-
sentative. Thus the validity of the cards was never permitted
to become a subject of litigation in the representation pro-
ceeding It developed that where a Regional Director admin-
istratively determined a representation petition to be sup-
ported by 30 percent or more of the employees, it would
be deemed a sufficient interest showing to warrant use
of the election machinery, with the employee choice there-
after certified by the agency
Similarly the Board decreed that even a fully supported
claim must be among employees who comprise an
appropriate bargaining unit. The statute itself affords certain
guidelines as to the type of units which may be appropriate,
and the Board has elaborated on the subject in many
unit determinations. Suffice it to say that the Board alone
can determine the validity of employee groupings, and
the Board will take no cognizance of a question concerning
representation unless it arises in an appropriate unit.
The Board likewise placed limitations on the timing
of petitions before it would undertake determinations of
the questions concerning representation they purported to
raise. Thus the Board developed its so-called certification
and contract-bar doctrines. These are both premised on
the proposition that once employees have chosen a represent-
ative, the effective collective bargaining which the statute
envisages will only be possible if the chosen representative
has reasonable time to bargain for a contract, or once
having achieved a contract there is a reasonable period
during which the contract terms may function. Thus to
permit employees the opportunity to change representatives
without limitation would frustrate the basic collective-bar-
gaining goal of the Act. The certification and contract-
bar doctrines hold, in effect, that following a certification
or the execution of a contract no claim for representation
by a rival will be considered or resolved by the Board
until certain periods of time have elapsed. The doctrines
and their applicability have their complexities, but no claim
is made here that the ILWU petition is not timely, so
it suffices merely to note their existence.
The substantial interest requirement, the appropriate unit
requirement, and the timing requirement are each set forth
to illustrate that the existence of rival claims alone even
as evidenced by the filing of a petition, do not necessarily
suffice to invoke use of the Section 9 machinery to determine
the choice. To put it another way, failure to meet any
of these three requirements will not give rise to a real
question of representation; i.e , one that the Board will
resolve forthwith upon the filing of the petition. Only
where we can find a so-called real question concerning
representation will continued bargaining with an incumbent
result in a Mid-West Piping violation. The presence or
absence of such a question in the record thus becomes
a central issue.
Respondent insists that no real question is to be found
here because (1) ILWU at no time made a claim or demand
for recognition as the statutory representative of Respond-
ent's employees, (2) the petition itself cannot be found
supported by sufficient interest showing to meet Board
requirements, (3) it has not been established that the unit
alleged in the petition is appropriate; (4) Respondent not
only had reasonable cause to believe that ICW represented
a majority of its employees but Respondent proffered evi-
dence which would support such a conclusion; (5) neither
the Board nor the Regional Director acting for the Board
has made a formal determination after hearing in the repre-
sentation case that a real question concerning representation
existed. It is asserted the law requires a formal finding
of this nature before there can be a Mid- West Piping viola-
tion.
While conflicting claims by rival organizations may arise
in a variety of ways either before, or in conjunction with,
the representation petition, it is well established that where
a petition is filed, the petitioner's failure to make an earlier
demand for recognition will not preclude a finding that
there is a real question concerning representation. In
Advance Pattern, 80 NLRB 209, the Board found a question
concerning representation even though there had been no
demand made prior to the filing of the petition. This
is tantamount to a holding that the filing of the petition
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in itself constitutes sufficient demand This is still the
prevailing view of the Board. While it stands undisputed
that ILWU made no prior recognition claim on Respondent
I find, contrary to the contention of Respondent, that
the filing of the petition in Case 20-RC-8126 suffices
to support the existence of a question concerning representa-
tion assuming other requirements have been met.
Respondent's assertion that ILWU has not established
a claim to represent the employees in an appropriate bargain-
ing unit is without merit. ILWU in its petition describes
the unit as "all employees covered by current agreement "
This is clearly an attempt to seek representation of employees
in the same unit represented by ICW. The contract unit
is presumptively appropriate, and Respondent neither urges,
nor does the record suggest , anything to point to another
conclusion Respondent's argument appears to rest on noth-
ing more substantial than an assertion that ILWU has
not described the unit in the precise language that appears
in the contract itself. I know of no requirement that petitions
need be drafted with such technical nicety. The scope
of the unit is adequately expressed in the petition in a
manner which could not mislead either Respondent or
ICW Accordingly, since the contract unit clearly appears
appropriate, I so find, and reject Respondent' s assertion
to the contrary.
Respondent further urges that not only did it have reason-
able cause to believe that ICW represented a majority,
but that on the basis of evidence which Respondent proffered
I should find that in fact ICW did represent a majority.
The General Counsel acknowledges, and I have no hesitation
in finding, that on the basis of the checkoff authorizations
which were introduced in the record Respondent had reason-
able cause to believe that ICW may have been the majority
choice of its employees when it resumed bargaining At
the hearing, however, and in its brief, Respondent urged
that I receive the same checkoff authorizations as definitive
proof of the majority designation of ICW at that time
I refused to receive them for such purpose, and Respondent
now urges that I reconsider my ruling and find the checkoff
authorizations to be proof of actual majority status.
Respondent's claim misconceives the nature of the litigation.
We are not concerned with a majority issue, but with
an assistance issue The gravamen of the charge here is
that Respondent itself unlawfully determined the majority
issue in the face of a representation claim by a rival union.
If in fact there is a rival claim sufficient to establish
a real question concerning representation the majority issue
can only be resolved following the free choice of the employ-
ees as expressed in an election The quantity or quality
of other evidence available to Respondent becomes irrele-
vant, since the existence of the rival claim shows its validity
to be the very question at issue and not something that
Respondent can determine on its own Accordingly, I reaf-
firm my ruling, and reject Respondent's claim that the
evidence proffered in fact establishes that ICW represented
a majority.
A more serious question centers on the claims of both
Respondent and ICW that the General Counsel has not
established that the interest showing of ILWU suffices
to meet Board interest showing requirements, and that
therefore no real question concerning representation which
would foreclose lawful continued bargaining ever existed.
It is insisted that the administrative determination asserted
by the General Counsel does not suffice as a matter of
law, and that evidence in this record shows that ILWU
never did make a showing sufficient to meet Board require-
ments Finally it is argued that even should the showing
be deemed sufficient no Mid-West Piping violation can
be found because an essential condition precedent has not
been met. It is claimed that continued bargaining with
the incumbent can only be found unlawful when it is
established that the Board, following a hearing in the repre-
sentation case, has formally found there to be a question
concerning representation. Admittedly such a condition has
not been fulfilled in the instant case. Let us consider the
latter issue first, for if it represents the controlling law
it is dispositive of the issue without further consideration
of the sufficiency of the showing.
Respondent and ICW urge the controlling law to be
found in the rationale expressed by several different courts
These court cases reversed contrary Board holdings and
held there to be no Mid- West Piping violation absent an
earlier formal finding by the Board in the representation
case to the effect that a real question concerning representa-
tion was raised by the rival union's claims N.L.R B v.
Swift and Co., supra, is urged to express most clearly
the rule of law alleged to be controlling. In Swift, as
in the instant case, the employer had recognized and bar-
gained with an incumbent certified union for many years.
The employer and the incumbent were in the process of
bargaining for a new contract to succeed one about to
expire. A rival union filed a petition for an election. A
notice of hearing was issued by the Regional Director.
Pursuant thereto a hearing was completed. While the matter
was still pending, but prior to any formal ruling, the employ-
er and the incumbent union entered into a new agreement
Thereafter the rival union filed charges of unlawful assist-
ance to the incumbent. The Board found a Mid- West Piping
violation holding "the timely filing of the petition supported
by an administratively determined showing of interest raises
a real question concerning representation." The court rev-
ersed the Board, holding that under the circumstances
no real question concerning representation existed. The
court stressed the fact that no election was ever ordered
or held, indicating that this signified at the most "the
existence of a naked claim .. to majority representation."
The court went on to state:
Recognizing its tenuous position, the Board urges that
we give weight to its disposition of the petition for
election. Before proceeding to a hearing on the petition,
the Board points out that it has a statutory duty
to first find that there exists "reasonable cause to
believe that a question of representation affecting com-
' NLRB v Swtft & Co, 294 F 2d 285 (CA 3), N L R B v Air
Master Corp, 339 F 2d 553 (C A 3), NL R B v North Electric Co,
296 F 2d 137 (CA 6), St Louis Independent Packing Co v NLRB,
291 F 2d 703 (C A 7) Respondent does not claim that the Court
of Appeals for the Ninth Circuit has ruled directly on the issue, but
asserts expressions by it which, although possibly dicta, suggest that
it too will follow the rationale of Swift and the other cases See Retail
Clerks Local 770 v NL R B, 370 F 2d 205 (C A 9), and Flotill Products,
180F2d441 (CA 9)
PETER PAUL, INC 289
merce exists ." Its usual procedure in such cases is
to check to see if the petitioning union has been
designated by at least 30 percent of the employees.
We are asked simply to assume that such occurred
here, for there is no evidence in the record in this
regard, and the Board is apparently satisfied with
saying that such a showing "must have" occurred
since it is required by the Board's administrative prac-
tices. The showing of 30 percent interest however,
has a limited purpose. It was devised as a means
of facilitating the Board's decision as to whether the
circumstances justified holding an election at all When
used for this purpose, the Board has held that such
a showing may not be subject to collateral attack.
Sebastopol Cooperative Cannery Co., 111 NLRB 530,
35 LRRM 1510 (1955) Consistent therewith the Board
has refused to permit attack on the procedure employed
in establishing a showing of interest or to pass on
allegations that cards supporting the petition are false
or otherwise invalid. 24 Annual Report NLRB 14-
15 (1959).
As is readily apparent, there is a great deal of
difference between using the 30 percent showing to
support a decision to hold an election and in using
it as an evidentiary basis for an unfair labor practice
finding. The Board itself has indicated, on at least
two occasions, that membership cards are not reliable
evidence of employee union allegiance where there
are rival unions competing for membership. As the
Brotherhood indicated in its brief here a third union,
the United Packinghouse Workers of America, AFL-
CIO, filed an election petition on June 29, 1959, which
was withdrawn on August 7, 1959, only to be followed
by the Meatcutters petition filed on August 13, 1959
There is one other evidentiary fact to round out the
picture. At the time when the agreement was renewed
it appears that approximately 95 percent of Respond-
ent's employees at the Harrisburg plant were having
dues for the Brotherhood deducted from their pay
pursuant to voluntary authorization , and that during
the so-called "escape period," which occurred prior
to September 1, 1959, no employee revoked an authori-
zation. In the absence of substantial evidence in the
record to support the finding that the employer had
a reasonable basis for believing that the Brotherhood
no longer represented a majority of its employees,
the Board's ultimate finding of an unfair labor practice
must fall.
Respondent and ICW correctly argue the factual situation
in Swift to be strikingly similar to that in the instant
case It may even be conceded that if Swift recites the
needed legal prerequisites a Mid- West Piping violation can-
not be found. Indeed the instant case is even stronger
for, as we have seen, not even a notice of hearing issued.
If Swift be followed it becomes irrelevant that a rival
union may have initiated steps to perfect its representation
claim , that an employer had become aware of such claim,
or that a rival union had submitted a substantial interest
showing. Absent the presence of other factors clearly signify-
ing the validity of the rival claim or the presence of other
independent acts of assistance to the incumbent, the employ-
er would remain free to bargain with the incumbent until
such time as the Board had made its formal determination
that there was a question concerning representation.
While to adopt the rationale of Swift would result in
dismissal of the instant charge, I am not convinced that
Swift represents existing Board policy , or that its application
to the controversy before me is either appropriate or
required It is well established that as Trial Examiner
I am required to follow the rulings of the Board rather
than those of courts which have differed with Board hold-
ings.' Nowhere do I find Board acceptance of the rule
as expressed in Swift or anything else which closely
approaches it.
The General Counsel relies on the Board 's view as
expressed in Shea Chemical Corporation , 121 NLRB 1027
No case has been cited , or found, which suggests that
the Board, as distinguished from the courts , has departed
from the rationale which appears to underlie its decision
in Shea. The Board makes the following statement in Shea:
We now hold that upon presentation of a rival or
conflicting claim which raises a real question concerning
representation, an employer may not go so far as
to bargain collectively with the incumbent (or any
other) union unless and until the question concerning
representation has been settled by the Board. This
is not to say that the employer must give an undue
advantage to the rival union by refusing to permit
the incumbent union to continue administering its con-
tract or processing grievances through its stewards.
We further find that a real question concerning repre-
sentation was raised here by the Oil Workers ' petition,
supported as it was by an adequate administrative
showing of interest, and that no adverse implication
can be drawn from the Oil Workers ' exercise of its
statutory right to file an unfair labor practice charge.
However, we wish to make it clear that the Mid-
West Piping doctrine does not apply in situations where,
because of contract bar or certification year or inappro-
priate unit or any other established reason , the rival
claim and petition do not raise a real representation
question . [Emphasis supplied]
Shea suggests it to be appropriate in furtherance of
protecting employee rights of free choice to halt the course
of continued bargaining at a far earlier point than would
occur under Swift Swift would permit such bargaining
without seeming limitation throughout the period needed
to schedule and conduct a hearing, and for what additional
time was needed for the Board to reach a final decision.
During this entire time the incumbent would have invaluable
assistance stemming from Respondent 's recognition and
bargaining , and, even though a question of representation
be found and an election ordered , it would be conducted
under conditions in which the employee choice in all likeli-
hood would have been influenced by just such assistance.
Shea on the other hand would demand a stop to continued
bargaining at a point where it first became known to
the employer that a supported petition had been filed.
6 Novak Logging Company, 119 NLRB 1573, Insurance Agents' Interna-
tional Union AFL-CIO [The Prudential Insurance Compani of 4nierica].
119 NLRB 768
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The court in Swift appears to misunderstand the nature
of the administrative determination regarding the interest
showing. The court holds that while it may be proper
to use the Director's determination when deciding whether
to conduct an election, the same determination must not
be used as an "evidentiary basis for an unfair labor practice
finding." This has a superficial appeal which will not with-
stand scrutiny. The statute grants to the Board authority
to process petitions "if it has reasonable cause to believe
a question of representation" exists. The Act embodies
no showing requirement and the Board has made use of
such solely to protect its own processes. Showing has never
been regarded as a jurisdictional requirement needed for
the Board to find a question of representation. On the
contrary, showing has uniformly been considered a nonlitiga-
ble determination. The court, although characterizing the
determination before a hearing as "evidentiary" and not
sufficient to support a Mid- West Piping violation, inconsis-
tently holds formal determination after full hearing to be
sufficient. The court overlooks the fact that insofar as
the showing issue is concerned, a determination at this
point is based on no different considerations than the earlier
one. Absent a right to litigate the issue in the representation
case, this is necessarily so. Actually, the determination
is not evidentiary at any point in the same sense as other
factual issues. It is a matter which the statute leaves to
the Board, and which absent any showing of administrative
irregularity, the Board may resolve without litigating the
question. The Board, not the courts, should determine
what approach best effectuates the policies of the Act.
We must next consider the Shea principles as applied
to the controversy before us
Respondent first learned of the rival claim of ILWU
by official notice from the Board of the filing of a petition.
While the notice alone does not establish the existence
of a real question of representation, it suggests the possibility.
However, the notice was accompanied by a request for
a current payroll to enable the Board to determine if
the claim was supported by the required showing. We
may presume that had Respondent elected to send in the
payroll, and a check had revealed that the showing did
not meet Board standards, the petition would have been
dismissed Respondent would then have been free to resume
bargaining with ICW without risk of an unfair labor practice
charge Respondent, however, by its own choice, failed
to furnish the payroll thereby rendering an accurate check
of interest showing impossible. It followed this by resuming
bargaining with ICW. The bargaining precipitated the
charge. At some point the Regional Director concluded
that considering Respondent's failure to furnish a payroll,
the number and presumed validity of the ILWU cards,
and the ILWU estimate of unit size, it was reasonable
to determine that a real question concerning representation
existed. He thereupon alleged in his complaint that in
view of such question Respondent's continued bargaining
with ICW constituted an unfair labor practice.
I see no significant factual basis for distinguishing this
case from Shea. While it is true that notice of hearing
did issue in Shea, this amounts to no more than an adminis-
trative assertion that there existed a sufficient showing
to support a question of representation It differs in no
significant measure from the similar administrative assertion
made here by the Regional Director in the complaint.
In either event it relates to a nonlitigable issue . The Board
held the administrative determination in Shea to establish
the question and to suffice to support a Mid- West Piping
,violation. I would reach the same result here absent the
existence of countervailing considerations or equities that
would point in another direction.
Contrary to Respondent and ICW I see few equities
to support their positions Respondent deliberately refrained
from putting the showing issue to a test in the one way
appropriate. By its own choice it elected to resume bargain-
ing with ICW and disdained cooperation with the govern-
ment agency charged with resolving representation issues.
Whatever reasonable cause Respondent may have had to
believe ICW to represent a majority became subject to
doubt upon notice of the ILWU petition. While it may
have had no reason to believe ILWU to represent a majority,
it ignored the only appropriate way to ascertaining if ILWU
represented a sufficient number to meet Board interest
standards. Instead it embarked upon a course of irreversible
assistance to its own choice for employee representative.
Now it would defend its action by claiming ILWU never
had a sufficient showing, and now it offers the payroll
and presses to litigate the validity of the cards. As has
already been said repeatedly, the validity of the cards
is nonlitigable. Respondent cannot now be heard to invoke
a payroll check after having declined to do so earlier,
and after having reaped the benefits of the assistance course
which it voluntarily embraced
Under the circumstances I deem it appropriate for the
Regional Director to have acted on the information at
hand, and to have determined that a real question concerning
representation existed, and I so find.
With all due respect to the contrary conclusions reached
by the courts in Swift and other cases, I am satisfied
they do not represent prevailing Board doctrine. For reasons
set forth above I deem the rationale of Shea to be controlling,
and find that Respondent here, as did the employer in
Shea, acted unlawfully in the face of a real question concern-
ing representation I deem it reasonable that the Board
require an employer officially notified of a rival union
petition to cooperate in a showing check or suffer the
consequences. I find that Respondent by failing to test
the sufficiency of the ILWU showing rendered it reasonable
and appropriate for the Regional Director to make his
determination, and that the Regional Director properly
determined a real question concerning representation to
exist at the time Respondent resumed the bargaining with
ICW. I further find that Respondent's continued bargaining
in the face of such question concerning representation consti-
tuted unlawful assistance to ICW, and that thereby Respond-
ent engaged in conduct violative of Section 8(a)(2) of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent as described in section I, above, have a close,
PETER PAUL, INC 291
intimate, and substantial relation to trade, traffic, and com-
merce among the several states and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom and take certain affirmative
action in order to effectuate the policies of the Act
Having found that Respondent has violated Section 3(a)
(1) and (2) of the Act by continuing to bargain, and
by executing a contract with ICW while there was a question
concerning representation, I shall recommend that Respond-
ent withdraw and withhold recognition from ICW, or any
successor, and cease and desist from enforcing and maintain-
ing its contract with ICW as the collective-bargaining repre-
sentative of its employees unless and until ICW shall have
been certified by the Board. I shall further recommend
that the allegations of paragraph 9 of the complaint be
dismissed.
Because of the narrow scope of the unfair labor practices
found herein, I shall recommend a narrow cease-and-desist
order.
Upon the basis of the foregoing findings and conclusions,
and upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
2. ILWU and ICW are each labor organizations within
the meaning of Section 2(5) of the Act
3. A question concerning representation existed among
the employees of Respondent at all material times after
May 1, 1968.
4. By continuing to bargain and entering into a contract
with ICW while there was a question concerning representa-
tion, and by enforcing and maintaining such contract,
Respondent engaged in unfair labor practices within the
meaning of Section 8 (a)(1) and (2) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of
the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in the
case , I recommend that Respondent , Peter Paul, Inc., its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Continuing to recognize or bargain, or enforcing
or maintaining its collective-bargaining agreement, with
ICW, or any successor thereto, as the statutory representa-
tive of its employees unless and until ICW shall have
been certified by the Board.
(b) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which I find
will effectuate the policies of the Act:
(a) Withdraw and withhold all recognition from ICW,
or any successor thereto, unless and until such organization
shall have been certified by the Board as the statutory
representative of Respondent's employees
(b) Set aside its existing collective-bargaining agreement
with ICW
(c) Post at its plant in Salinas , California, copies of
the attached notice marked "Appendix."' Copies of such
notice to be furnished by the Regional Director for Region
20, shall, after being duly signed by an authorized representa-
tive, be posted immediately upon receipt thereof and be
maintained for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that such notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 20, in writing,
within 20 days from the receipt of this Decision, what
steps Respondent has taken to comply herewith.'
IT IS FURTHER RECOMMENDED that the allegations of
paragraph 9 of the complaint relating to alleged acts of
interference with employee rights be dismissed.
' In the event that this Recommended Order be adopted by the
Board, the words "a Decision and Order" shall be substituted for the
words "the Recommended Order of a Trial Examiner" in the notice
In the further event that the Board's Order be enforced by a decree
of the United States Court of Appeals, the words "a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted
for the words "a Decision and Order "
' In the event that this Recommended Order he adopted by the'
Board, this provision shall be modified to read "Notify said Regional
Director, in writing, within 10 days from the date of this Order, what
steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner
of the National Labor Relations Board and in order to
effectuate the policies of the National Labor Relations
Act, as amended, we hereby notify our employees that.
WE WILL cease recognizing and withhold recognition
from Industrial Candy Workers Union, and will cease
maintaining or enforcing our contract with the same
union, unless and until such union be certified by
the National Labor Relations Board as the exclusive
representative of our employees.
WE WILL NOT in any like or related manner interfere
with the rights of our employees as guaranteed by
Section 7 of the Act.
PETER PAUL, INC.
(Employer)
Dated By
(Representative)
(Title)
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This notice must remain posted for 60 consecutive days directly with the Board's Regional Office, 13050 Federal
from the date of posting and must not be altered , defaced , Building, 450 Golden Gate Avenue, Box 36047 , San Francis-
or covered by any other material . co, California 94102, Telephone 556-0335.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate