Pittsburgh Valve Co.

National Labor Relations Board - Board Decisions

Oct 5, 1955

114 N.L.R.B. 193 (N.L.R.B. 1955)

PITTSBURGH VALVE COMPANY' 193
Pittsburgh Valve Company, Sterling Manufacturing Company,
and Hardware Brass Manufacturing Company and United
Steelworkers of America , C. I. O. and District 50, United
Mine Workers of America , Party to the Contract. Case No.
6-CA-807. October 5, 1955
DECISION AND ORDER
On January 24, 1955, Trial Examiner Ralph Winkler issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had not unlawfully recognized District 50 as the repre-
sentative of their employees, as alleged in the complaint, and recom-
mending that the complaint be dismissed in its entirety, as set forth
in the copy of the Intermediate Report attached hereto. Thereafter,
the Respondents and the General Counsel filed exceptions to the Inter-
mediate Report and supporting briefs.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and briefs, and the entire record in this
case and, finding merit in the General Counsel's exceptions, hereby
adopts only such of the Trial Examiner's findings and conclusions
as are consistent herewith.
The material facts, as set forth in the Intermediate Report, are
substantially undisputed. Since 1950, District 50 has been the, con-
tractual representative of the employees of the Morgantown Com-
panies. On April 27, 1951, an inconclusive Board-directed election
was held in a single unit embracing the employees of both of those
Companies.' Thereafter, while objections to the election, and unfair
labor practice charges filed against the Morgantown Companies, were
pending before the Board, the Respondents' plants, with substantially
the same ownership, control, and management as the Morgantown
Companies, commenced operations. These plants were staffed in part
by employees who had formerly been employed by the Morgantown
Companies; 2 however, all such employees were hired by the Respond-
ents as new employees. Both the Respondents and the Morgantown
Companies manufacture brass products for the plumbing industry;
their manufacturing processes are similar; and some of the Respond-
ents' products are utilized in the manufacture of the Morgantown
I See Sa-Mor Quality Brass, Inc., 93 NLRB 1225.
2 Contrary to the findings of the Trial Examiner , at the April 1953 hearing date, the
Respondents' plants had a total complement of approximately 51 employees in the unit
sought by the Steelworkers ; of these employees , only 15 had transferred directly from the
Morgantown Companies ' plants to the Respondents ' plants, and 9 others, who had formerly
worked for the Morgantown Companies , were employed by the Respondents , but not until
some time had elapsed after their employment by the Morgantown Companies had been
-terminated.
114 NLRB No. 50.
194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
,Companies' products. Until November 1953, the Respondents rejected
the efforts of District 50 to gain recognition as the representative of
their employees and to include such employees within the coverage
.of -its contracts with the Morgantown Companies. On July 13, 1953,
the Board dismissed without prejudice, the Steelworkers' petition for
an election at the Respondents' plants, on the basis of the Respond-
ents' assertion that the unit sought by the Steelworkers was in the
process of an immediate and substantial expansion; 3 in that decision,
the Board expressly reserved decision on the question whether the
Respondents' employees might constitute a separate appropriate unit,
apart from the employees of the Morgantown Companies. On the
basis of the Respondents' representations that there had been no mate-
rial change in their expansion plans, the Regional Director dismissed
a second petition filed by the Steelworkers; this dismissal was sus-
tained by the Board on appeal on October 20, 1953. Shortly there-
after, on November 2, 1953, more than a year after their plants had
commenced operations, the Respondents, after a card check, recog-
nized District 50 as the representative of their employees, and executed
an agreement making the provisions of District 50's contracts with
the Morgantown Companies applicable to the Respondents' employees.
The Respondents did not, however, abandon their expansion plans
until about 6 months after such recognition. In May 1954, the Board
dismissed both the complaint and the petitions involving the Morgan-
town Companies.'
The sole issue in this case is the application of the Board's Midwest
Piping doctrine 5 to the foregoing facts. As pointed out by the Trial
Examiner, that doctrine generally precludes recognition of one union
in the face of a rival claim by another union. The Trial Examiner
found that the Steelworkers' claim was still alive at the time the Re-
spondents recognized District 50, so as to raise a Midwest Piping
issue. He concluded, however, that as the Steelworkers' claim to rep-
resent the Respondents' employees involved an inappropriate unit, it
did not raise a question concerning representation in an appropriate
unit and, as a consequence, the Respondents' recognition of District
50 in the face of the Steelworkers' claim did not, on the authority of
the William Penn case,s violate the Act.
For substantially the reasons set forth in the Intermediate Report,
we agree with the Trial Examiner that the dismissal without prejudice
of the Steelworkers' petitions, on the basis of the Respondents' ex-
panding unit representations, did not operate to extinguish the Steel-
3 See Pittsburgh Valve Company, 106 NLRB 109.
4 Sterling Faucet Company, 108 NLRB 776
c Midwest Piping and Supply Co., Inc., 63 NLRB 1060, 1071.
6 William Penn Broadcasting Company, 93 NLRB 1104 , 1105 , in which the Board de-
clined to apply the Midwest Piping doctrine to continued dealing with an incumbent union
when the rival claim was made in an inappropriate unit.
PITTSBURGH VALVE COMPANY 195
workers' claim to represent the Respondents' employees as of the time
the Respondents recognized District 50 as the representative of those
employees. Although the existence of a valid claim is normally evi-
denced by the filing and processing of a representation petition, it is
the continuing existence of the claim, and not, as our dissenting col-
league asserts, only the acceptance and processing of a petition by the
Board, which determines whether the situation calls for the applica-
tion of the Midwest Piping doctrine.7 Here the Steelworkers, by filing
two successive petitions with the Board, which were dismissed for
reasons unrelated to the validity of the claim, had done all that it
could to press and perfect its claim to represent the Respondents' em-
ployees; until such time as a change in circumstances gave evidence
that the Board would accept and process a new petition, it was there-
fore under no obligation, in order to protect its claim, to engage in
the useless gesture of filing successive petitions which would neces-
sarily be dismissed. Accordingly, as the claim survived the dismissal
of the above-mentioned petitions, we find no merit in the Respondents'
contention that the dismissal of the Steelworkers' petitions precludes
the application of the Midwest Piping doctrine.
We believe our dissenting colleague misconstrues the impact of the
dismissal without prejudice of a petition in an expanding unit situa-
tion. In determining that "no question of representation exists" be-
cause of the expanding unit, the Board is deciding no more than that
an unsubstantial and unrepresentative complement of employees may
not select a representative to represent the full complement of em-
ployees who will subsequently be hired. Such a decision is a necessary
corollary to the Board's conclusion that an employer may not lawfully
recognize and enter into a contract with a union when the employee
complement is not a substantial and representative segment of the
ultimate employee complement.' The effect of a dismissal under such
circumstances, therefore, is to serve notice on the parties that the selec-
tion of an exclusive representative in an appropriate unit by the em-
ployees then employed is premature, and to leave open for later resolu-
tion the question of what union, if any, a more representative com-
plement of employees desire as their statutory bargaining represent-
ative. This is a wholly different situation from that created by the
dismissal of a petition because the unit sought is inappropriate, the
effect of which is to deny the employees in the inappropriate unit the
right to choose separate exclusive representation at any time, or be-
cause of a contract bar, the effect of which is to reaffirm the continuing
representation rights of the incumbent union. By analogizing an ex-
' See Sunbeam Corporation , 99 NLRB 546, 553
Guy F. Atkinson Company, 90.NLRB 143, 144-146. In that case the court. although
setting aside the Board 's Order on other grounds , 195 F 2d 141 ( C. A. 9), specifically
approved the Board 's conclusions on this particular issue.
387644-56-vol. 114-14
196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
panding unit dismissal to the other types of dismissals , however, our
dissenting colleague would achieve the anomalous result, as is clearly
illustrated in this case, of permitting the Respondents unilaterally to
determine their employees' bargaining representative at the very time
when the Board, on the basis of the Respondents' representations, had
refused to permit such a determination .9 For these reasons , we reject
our dissenting colleague's conclusion that the Steelworkers' claim was
merged into the petitions, and fell when they were dismissed, and re-
affirm our agreement with the Trial Examiner on this issue.
We do not, however, agree with the Trial Examiner that a unit
confined to the Respondents' employees, excluding employees of the
Morgantown Companies, is necessarily inappropriate. We find,
rather, for the reasons stated hereinafter, that the Respondents' em-
ployees could, if they so desired, constitute a separate appropriate
unit. As the Steelworkers' claim under these circumstances raised a
real question concerning representation which could be resolved only
by an election at an appropriate time, the holding of the William
Penn case, which is limited to situations in which the rival claim does
not raise a real question concerning representation, is inapplicable
here.10
Whether the unit sought by the Steelworkers may be appropriate
-must be decided within the framework of Section 9 (b) of the Act,
which provides in pertinent part that "The Board shall decide in each
case whether, in order to assure to employees the fullest freedom in
exercising the rights guaranteed by this Act, the unit appropriate for
the purposes of collective bargaining shall be the employer unit, craft
unit, plant unit, or subdivision thereof." In discharging its responsi-
bilities under this section, the Board of necessity cannot apply hard
and fast rules. Rather it must, in each case, balance against factors
supporting the appropriateness of one type of unit other factors which
may support the appropriateness of another type of unit. In some
cases, the balance may clearly support the appropriateness of one type
of unit, and the inappropriateness of any other; in other cases, the
balance may be evenly weighted, and the final determination may then
rest with the employees' choice.
In the instant case, the question is whether only an employerwide
unit is appropriate," or whether some unit smaller in scope may also
be appropriate. As noted above, at the time the Respondents' plants
6 Cf. Hexton Furniture Company, 111 NLRB 342.
io It is therefore unnecessary for us to consider the General Counsel's further contention
that the William Penn case is in any event inapplicable to the recognition of 1 of 2
nonincumbent unions.
As the relationship between the Respondents and the Morgantown Companies is sub-
stantially the same as the relationship between the two Morgantown Companies which
the Board found, in Sa-Mor Quality Brass, Inc., supra, at 1227, to be a single employer
within the meaning of the Act , we find that the Respondents and the Morgantown
Companies together constitute a single employer within the meaning of the Act.
PITTSBURGH VALVE COMPANY 197
commenced operations, the employees of the Morgantown Companies
were represented under contracts by District 50, these contracts con-
tained no provisions including within their scope any new plants which
might thereafter be acquired or operated by the Morgantown Com-
panies or their affiliates, and for more than a year the Respondents'
employees were excluded from the coverage of these contracts. The
Respondents' plants were staffed in part by former employees of the
Morgantown Companies; however, less than one-third of the Re-
spondents' total complement was recruited directly from the Morgan-
town Companies, and all of them severed their relationships with the
Morgantown Companies and were hired by the Respondents as new
employees. The five plants of the Respondents and the Morgantown
Companies are under common ownership and management, there is a
common overall control of labor relations policies, their operations are
integrated, and the employee skills and working conditions are similar ;
however, the Respondents' plants are separately located from the
plants of the Morgantown Companies, they are under separate im-
mediate supervision and, since the initial staffing of the Respondents'
plants, there has been little transfer or interchange between the plants.
In circumstances such as the foregoing, the Board has consistently
regarded plants such as the Respondents' as a completely new or dif-
ferent operation," rather than as merely an accretion to an existing
unit,13 and has further held that employees at such plants may, de-
pending on their desires as expressed in a Board-conducted election,
either constitute a separate appropriate unit, or be added to an existing
unit." We hold, therefore, in accordance with well-established prece-
dent, that at the time the Respondents recognized District 50 as
the representative of their employees, the employerwide unit was not
the only appropriate unit, and that a unit limited to the employees of
the Respondents was also appropriate.15
We are not unmindful of the Board's dictum in the representation
case, footnote 3, supra, in which the Board stated that "absent extraor-
dinary circumstances, . . . only a single bargaining unit for all 5
plants of the 5 separate corporations is appropriate." This dictum
is not, however, controlling in determining the unit issue in this case,
because the Board therein expressly reserved final decision on that
question in Pittsburgh Valve Company, et al.; 16 the Respondents
u E. g., Zip -O-Log Veneer, Inc., 112 NLRB 1303; American Engineering Company, 112
NLRB 14 ; Lumber Fabricators , Inc., 110 NLRB 187.
'n The cases relied on by the Trial Examiner ( Hess, Goldsmith ti Company, Inc., 110
NLRB 1384 ; Bulova Research and Development Laboratories , Inc., 110 NLRB 1036; and
Sam -Lowell Shops, 107 NLRB 590), involving accretions to an existing unit , are there-
fore inapposite.
u See cases cited in footnote 12, supra.
's Under these circumstances , Waterous Company, 92 NLRB 76 , and The Zia Company,
108 NLRB 1134 , discussed by the Trial Examiner , are inapposite.
14106 NLRB 109, p . 111, where the Board stated that , "We find it unnecessary to decide
this (unit ] dispute between the parties."
198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
themselves, when they urged that the Steelworkers' second petition be
dismissed, recognized in express language 11 that the Board had not
resolved that issue; and the special circumstances of this case," to
which the Board referred in the above-quoted dictum, in any event
precluded the inclusion of the Respondents' employees in a unit with
the employees of the Morgantown Companies without their first being
accorded an opportunity to express their desires in a separate election.
As we have found that the Respondents recognized District 50 as,
the representative of their employees, and entered into a contract with
that Union, at a time when the Steelworkers' rival claim raised a real
question concerning representation with respect to the Respondents'
employees, we further find that the Respondents thereby violated
Section 8 (a) (2) and (1) of theAct.19
THE EFFECT OF TILE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth above, occurring in con-
nection with the operations of the Respondents as set forth in the
Intermediate Report, have a close, intimate, and substantial relation
to trade, traffic, and commerce among the several States, and tend to
lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
THE REMEDY
As we have found that the Respondents have engaged in certain
unfair labor practices, we shall order that they cease and desist there-
from and take certain affirmative action necessary to effectuate the
policies of the Act.
We have found that the Respondents recognized District 50 and
entered into an agreement with it on November 2, 1953, during the
pendency of a question concerning the representation of the employees
covered thereby. By such conduct, the Respondents have interfered
with, restrained, and coerced their employees in the exercise of their
right freely to select their own bargaining representative, and have
accorded unlawful assistance and support to District 50. In order to
dissipate the effect of the Respondents' unfair labor practices, we shall
order the Respondents to withdraw and withhold all recognition from
District 50, and to cease giving effect to the aforementioned agree-
ment, or to any renewal or extension thereof, until such time as District
17 The Respondents then stated that "The companies have urged that the three Reedsville
companies herein concerned are but a part of the larger unit encompassing Sterling Faucet
and Sa-Mor Quality Brass. In the Board's decision in 106 NLRB 109, supra, this question
was not resolved and hence still remains to be disposed of in the event the ,Board grants
the union 's request" to reverse the Regional Director 's dismissal of its petition.
18 Including the unresolved objections to the election previously held among the em-
ployees of the Morgantown Companies , and the fact that District 50, because of-'its
failure to comply with the filing requirements of the Act , was precluded from participating
an any Board -conducted election involving the Respondents ' employees. . .1
19 Jersey Contracting Corp., 112 NLRB 660; Midwest Piping and Supply Co., Inc., supra.
PITTSBURGH VALVE COMPANY 199
i0 shall have been certified by the Board as the exclusive representative
.of the employees in question.20 Nothing herein shall, however, be
construed to require that the Respondents vary or abandon any existing
term or condition of employment.
Upon the basis of the foregoing, and the entire record in this case,
the National Labor Relations Board hereby makes the following :
CONCLUSIONS OF LAW
1. United Steelworkers of America , C. I. O., and District 50, United
Mine Workers of America, are labor organizations within the meaning
of Section 2 (5) of the Act.
2. By contributing unlawful assistance and support to District 50,
the Respondents have engaged in and are negaging in unfair labor
practices within the meaning of Section 8 ( a) (2) of the Act.
3. By interfering with, restraining , and coercing their employees
in the exercise of rights guaranteed in Section 7 of the Act , the Re-
spondents have engaged in and are engaging in unfair labor practices
within the meaning of Section 8 ( a) (1) of the Act.
4. The foregoing unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents, Pittsburgh
Valve Company, Sterling Manufacturing Company, and Hardware
Brass Manufacturing Company, Reedsville, West Virginia, their offi-
cers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Assisting or contributing support to District 50, United Mine
Workers of America, or to any other labor organization.-
(b) Recognizing and contracting with District 50, United Mine
Workers of America, as the bargaining representative of their em-
ployees, unless and until said labor organization shall have been certi=
fled as such by the National Labor Relations Board.
(c) Performing or giving effect to their November 2, 1953, agree-
ment with District 50, United Mine Workers of America, or to any
renewal, extension, modification, or supplement thereof.
(d). In any like or related manner interfering with, restraining, or
coercing their employees in the exercise of their rights to self -organi-
zation, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purposes
of collective bargaining or other mutual aid or protection, or to re-
20 See Bowman Transportation , Inc, 113 NLRB 786.
200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
frain from any or all of such activities except to the extent that such
right may be affected by an agreement requiring membership in a
labor organization as a condition of employment as authorized in
Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Withdraw and withhold all recognition from District 50,
United Mine Workers of America, as the collective-bargaining repre-
sentative of their employees, unless and until said labor organization
has been certified as such by the National Labor Relations Board.
(b) Post at their Reedsville, West Virginia, plants, copies of the
notice attached hereto marked "Appendix." 21 Copies of said notice,
to be furnished by the Regional Director for the Sixth Region, shall,
after being duly signed by the Respondents' representatives, be posted
by the Respondents and maintained by them for a period of sixty
(60) consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondents, and each of them, to insure
that said notices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for the Sixth Region, in writing,
within ten (10) days from the date of this Order, what steps the
Respondents have taken to comply herewith.
MEMBER MURDOCK , dissenting :
As stated by the majority, the sole issue in this case is whether the
Board's Midwest Piping doctrine 22 applies to the facts of this case.
In my opinion, that doctrine does not apply for two reasons.
In the William Penn case,21 the Board held that the Midwest Piping,
doctrine does not apply "unless the petition [filed by the recognized
union's rival] has a character and timeliness which create a real ques-
tion concerning representation." [Emphasis supplied.] Both of
these limitations on the application of the Midwest Piping doctrine
are present here. Thus, in dismissing the petition of the Steelworkers,
albeit on another ground, the Board specifically stated that : "There
is no question, and all of the parties seemingly agree, that absent ex-
traordinary circumstances, the integrated character of the operations
and management of the 5 plants owned by these companies would re-
quire a finding that only a single bargaining unit for all 5 plants of
21 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
22 Midwest Piping and Supply Co. Inc., 63 NLRB 1060.
21 William Penn Broadcasting Company, 93 NLRB 1104.
PITTSBURGH VALVE COMPANY 201
the 5 separate corporations is appropriate." [Emphasis supplied.] As.
the 3-plant unit then sought by the Steelworkers was in effect found to
be inappropriate, 24 the "character" of the petition did not, create a real
question concerning representation, and therefore the Midwest Piping
doctrine does not apply to the Respondents' subsequent recognition of
District 50 as the representative of a new and appropriate 5-plant
unit 25 Moreover, the alternative ground for dismissing the petition
on which the Board actually based the dismissal of the petition, was
that the unit sought was in the process of definite and imminent sub-
stantial expansion, and therefore the time was not appropriate for an
election even assuming that the 3-plant unit was appropriate. Ac-
cordingly, as the petition did not have a "timeliness" which created a
real question concerning representation even in the smaller unit which
the majority now finds may be appropriate, William Penn precludes
the application of the Midwest Piping doctrine even under that theory
of the case.26
The majority also holds that the dismissal of the Steelworkers' pe-
titions on the expanding unit ground did not operate to extinguish
the Steelworkers' claim to represent the Respondents' employees as of
the time the Respondents recognized District 50 as the representative
of those employees. In my view, the Steelworkers' claim was merged
in and represented by the petitions which it filed with the Board, and
the Board having found only 2 weeks prior to the recognition that the
second as well as the first petition should be dismissed because it was
invalid, such dismissal extinguished the Steelworkers' claim so that it
did not exist at the time of the recognition, and therefore no Midwest
Piping situation existed at the time of the recognition.
Accordingly, I would find that the Respondents' recognition of Dis-
trict 50 as the representative of their employees was not unlawful, and
I would dismiss the complaint.
24 Contrary to the assertion of the majority, the Board did not expressly reserve decision
on the question whether the 3-plant unit might constitute a separate appropriate unit,
but only found it unnecessary to rely on the inappropriateness of the 3-plant unit sought
as its basis for dismissing the petition.
ffi William Penn Broadcasting Company, sups a
26 The Board , of course , specifically found that no question of representation exists"
under that theory of the case as its basis for dismissing the petition. Accordingly, in
the absence of any qualification or limitation on this basis for dismissing the petition, the
situation for Midwest Piping purposes was, contrary to the assertion of the majority,
no different from a situation where a petition is dismissed for any other reason on that
same basis . In either case , the Board has unequivocally found that no question concerning
representation exists, and in reliance on such a finding by the Board and the William Penn
limitation on the application of the Midwest Piping doctrine, an employer should there-
after be free to accord recognition without running afoul of Midwest Piping. To hold'
otherwise is to penalize an employer for relying on what the Board itself has clearly said'
an employer is free to do
202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor,
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT assist or contribute support to District 50, United
Mine Workers of America, or to any other labor organization.
WE WILL NOT recognize and, contract with District 50, United
Mine Workers of America, as the bargaining representative of
our employees, unless and until said labor organization has been
certified as such by the National Labor Relations Board.
WE WILL NOT perform or give effect to our November 2, 1953,
agreement with District 50, United Mine Workers of America,
or to any renewal, extension, modification, or supplement
thereof.
WE WILL NOT interfere with, restrain, or coerce our employees
in the exercise of their rights to self-organization, to bargain
collectively through representatives of their own choosing, and
to engage in other concerted activities for the purposes of collec-
tive bargaining or other mutual aid or protection, or to refrain
from any or all of such activities except to the extent that such
right may be affected by an agreement requiring membership in
a labor organization as a condition of employment as authorized
in Section 8 (a) (3) of the Act.
WE WILL withdraw and withhold all recognition from District
50, United Mine Workers of America, as the collective-bargaining
representative of our employees, unless and until said labor
organization has been certified as such by the National Labor
Relations Board.
PITTSBURGH VALVE COMPANY,
Employer.-
Dated ---------------- By-------------------------------------
(Representative ) (Title)
STERLING MANUFACTURING COMPANY,
Employer.
Dated---------------- By------------------------------------
(Representative ) ( Title)
HARDWARE BRASS MANUFACTURING COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof, and
must not be altered, defaced, or covered by any other material.
PITTSBURGH VALVE COMPANY 203
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed by United Steelworkers of America, C. I. 0., a labor organi-
zation herein called the Steelworkers, the General Counsel of the National Labor
Relations Board issued a complaint dated September 2, 1954, against the three
Respondent Companies named in the caption, alleging that Respondents have en-
gaged in unfair labor practices affecting commerce within the meaning of Section
8 (a) (1) and (2) and Section 2 (6) and (7) of the Labor Management Rela-
tions Act, 1947, 61 Stat. 136, herein called the Act; the complaint names District 50,
United Mine Workers of America, a labor organization herein called District 50,
as a Party to the Contract. Copies of the complaint and the charge were duly
served upon the Respondents, in response to which the Respondents filed an answer
denying the unfair labor practices alleged and in connection with which they have also
filed a motion to strike and a motion to dismiss
Pursuant to notice, a hearing was held on October 11 and 12, 1954, at Morgan-
town, West Virginia, before the duly designated Trial Examiner. All parties, in-
cluding District 50, were represented at the hearing and were given full opportunity
to examine and cross-examine witnesses and to introduce evidence bearing on the
issues; they were also given opportunity to present oral argument at the close of the
hearing and to file briefs as well. The parties have filed briefs.
Upon the entire record in the case, and upon observation of the demeanor of
witnesses , I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Business of the Respondents and their labor relations history
This case involves five separate West Virginia corporations, including the three
Respondents. Each of the 5 Companies has a single plant, and the Board had
already found in another proceeding that the 5 Companies "have a substantial com-
mon ownership, common officers and directors, and a very centralized control of
both production operations and labor relations policies. Together they are devoted
to the manufacture of brass products for the plumbing industry" (Pittsburgh Valve
Company, et al, 106 NLRB 109). Their aggregate interstate sales and pur-
chases annually exceed $10,000,000 and $9,000,000, respectively. The Respondents
are engaged in commerce within the meaning of the Act. See Kleber Glass & Mirror
Company, 111 NLRB 180; Venus Die Engineering Company, 110 NLRB 336; Jones-
boro Grain Drying Cooperative, 110 NLRB 481.
Two of the five Companies, Sterling Faucet and Sterling Tubular,' have their plants
in Morgantown, West Virginia, where they have been operating since 1940 and 1948,
respectively. (I shall refer to these two Companies together as the Morgantown
Companies.) The three Respondents (Sterling Manufacturing, Pittsburgh Valve,
and Hardware Brass ) organized their plants in Reedsville , West Virginia , in 1952.
(I shall refer to the three Respondents together as the Reedsville Companies.)
Reedsville is about 13 miles from Morgantown.
District 50 has been the exclusive bargaining representative of Sterling Faucet's
employees at all times since 1944,2 and it has similarly represented the Sterling
Tubular employees since 1950.3 District 50 and the two Morgantown Companies
executed their latest contracts in 1950.
In October 1950, and before the Reedsville Companies were organized, the Plumb-
ers' union filed a representation petition seeking to represent the employees of the
Morgantown plants in a multiplant unit. District 50 requested in that proceeding
that two single-plant units be established, while the Steelworkers agreed with the
Plumbers' union that a multiplant unit was appropriate. The Board, in its Decision
and Direction of Election issued in April 1951, sustained the multiplant unit con-
tention of the Steelworkers and the Plumbers because of the "common control" and
"considerable" operational integration of both Companies (Sa-Mor Quality Brass,
Inc, 93 NLRB 1225). The Board also rejected a contention by District 50 in this
1951 representation case that District 50's contracts with the Morgantown Com-
panies should be a bar to an election. An election was held in April 1951,4 with
I Formerly called Sa-Mor Quality Brass.
2 'Following a Board-conducted election
3 Following a card check.
* District 50 did not appear on the ballot because of its noncompliance with the filing
and affidavit requirements of Section 9 (f), (g), and (h) of the Act.
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inconclusive results. Shortly thereafter the Plumbers' union filed objections to
the election results, and the Plumbers and the Steelworkers also filed unfair labor
practice charges, upon which the General Counsel issued a complaint alleging, inter
alia, that the Morgantown Companies had dominated and assisted District 50. The
Board ordered the objections and the unfair labor practice cases to be consolidated;
the consolidated matter went to hearing in 1952 and was not finally resolved by
the Board until May 1954.
The three Reedsville Companies came into existence, meanwhile, and in March
1953 the Steelworkers instituted representation proceedings before the Board in
which it sought certification as statutory bargaining representative of the Reeds-
ville employees in a single multiplant unit (Case No. 6-RC-1256). The Respond-
ents contended at the April 1953 hearing on that petition that the only appropriate
unit was one which embraced the employees of all 5 Companies, the Respondent
Reedsville Companies as well as the 2 Morgantown Companies, and they relied
in this connection on factors of common ownership and integrated operations.
The Respondents also urged in that proceeding that, if the Board should overrule
their 5-plant unit contention and determine instead that an appropriate unit could
also consist of the 3 Reedsville operations alone, the holding of an election.would
be untimely because the Reedsville plants were still in process of expansion and did
not yet have either a representative or a substantial group of their contemplated
working force and job classifications. The Reedsville plants had a total comple-
ment of 54 employees at the time and the Respondents represented that they ex-
pected to increase this number to 150-175 employees within 6 months and to ap-
proximately 340 employees by April 1954. The Steelworkers took the position, on
the other hand, that an immediate election could properly be held on the theory
that the five plants together had a'substantial and representative group of the antici-
pated complement.
The Board issued its Decision in Case No. 6-RC-1256 on July 13, 1953, stating
in part as follows (Pittsburgh Valve Company, et al., 106 NLRB 109) :
These 5 corporations have a substantial common ownership, common offi-
cers and directors, and a very centralized control of both production opera-
tions and labor relations policies. Together they are devoted to the manu-
facture of brass products for the plumbing industry. There is no question, and
all of the parties seemingly agree, that absent extraordinary circumstances, the
integrated character of the operations and management of the 5 plants owned by
these companies would require a finding that only a single bargaining unit for
all 5 plants of the 5 separate corporations is appropriate.
The 2 plants at Morgantown have been in continuous operation for several
years, and in 1951 the Board found a unit embracing those 2 plants to be ap-
propriate and directed an election therein. The Petitioner, which then sought
to represent those employees, filed objections to the election which followed
the Board's decision, and also charges of unfair labor practices against those 2
companies The issues raised by both the objections and the unfair labor prac-
tice charges are still pending before the Board.
In 1951, because of a substantial increase in the Morgantown production
operations, the 3 Reedsville companies were organized and housed in 3 build-
ings which they sublet from the Sterling Faucet Company; the Reedsville op-
erations commenced in 1952 and have been going on for about 9 months.
Some personnel was transferred from Morgantown and a substantial amount
of machinery and equipment was sold by the old companies to the 3 new ones.
[Emphasis supplied.]
In dismissing the petition the Board further stated, as follows:
The parties' disagreement both as to the appropriateness of establishing a
unit limited to the Reedsville plants and as to polling those employees apart
from the Morgantown workers, arises from their conflicting constructions of the
Board's decision in the Waterous Company case. The Employer contends that
because the question concerning representation affecting the Morgantown em-
ployees in Cases Nos. 6-RC-694 and 695 [the 1951 representation cases] is as
yet unresolved, the Reedsville employees, being a group previously unrepresented
in what could now be an appropriate unit of 5 plants, may not be polled as a
separate group, but can only be polled together with the employees of all 5
plants. To the contrary, the Petitioner argues that the unsettled conditions re-
sulting from the alleged unfair labor practices of the companies at Morgan-
town takes this situation out of the purview of the rule of the Waterous case
We find it unnecessary to decide this dispute between the parties, because it is
•clear that the Reedsville plants are in the process of a definite and substantial
PITTSBURGH VALVE COMPANY 205
expansion, both as to the number of employees and as to the diversity of cate-
gories which will eventually be employed there. The present complement of
employees is neither a substantial nor representative segment of the group which
will ultimately be employed. In such circumstances, the Board ordinarily does
not order an immediate election. Even assuming , therefore, that because of the
unsettled conditions at the Morgantown plants, the three-plant unit proposed by
the Petitioner is appropriate, we would nevertheless not direct an election now.
Accordingly, because the unit requested is in the process of definite and immi-
nent substantial expansion, we shall dismiss the petition without prejudice to the
subsequent filing of another petition at a more appropriate time. [Emphasis
supplied.]
On August 11, 1953, the Steelworkers filed another representation petition (Case
-No. 6-RC-1334) seeking the same multiplant unit of Reedsville employees as they
had requested in Case No. 6-RC-1256. Advising the Board by letter dated August
17, 1953, that the working complement at the Reedsville plants had risen from 54
-employees in April to 65 in August, and that the expansion "is now in progress," Re-
spondents once more stated that the working force at these plants was "still far from
,reaching any point of being a representative segment of the contemplated working
force. . . . There has been, moreover, no change at all in the contemplated expan-
sion to approximately 300 employees by April 1954." Respondents also advised the
Board in their August 17 letter and in another letter on August 21 that, despite "con-
siderable pressure by District 50 to include these three [Reedsville] Companies under
the existing agreement with [the Morgantown Companies], no such agreement
or understanding has been either formally or informally reached as of this date."
The Regional Director, on September 4, 1953, dismissed the Steelworkers' August
1953 petition on the ground that the "unit requested is in the process of definite
and imminent substantial expansion as found by the Board in its Decision and Order
in Case No. 6-RC-1256 issued July 13, 1953 [106 NLRB 109], and there is no
evidence of any material change since the date of the Board's Order." The Steel-
workers appealed the Regional Director's action to the Board and it called the Board's
attention to the fact that Respondents were substantially short of the 175 figure
which Respondents had asserted in the earlier 1953 proceeding they would reach
within 6 months of April 1953; and the Steelworkers thereupon asserted that "the
purported plant expansion still remains . wholly conjectural and speculative." On
September 17, 1953, the Respondents replied to the Steelworkers' appeal; they stated,
among other things, that they had 73 employees at the time; that "although there
had been some slight delay in the contemplated expansion due to certain production
difficulties, . there has been no change in the expansion policy of these com-
pariies"; and "that a sufficient amount of time has not yet elapsed for the companies
to have reached anything resembling a representative working force." Respondents
also stated to the Board at the time that the Board had not yet resolved the question
as to whether the three Reedsville companies "are but a part of the larger unit
encompassing [the Morgantown plants]." The Board dismissed the Steelworkers'
appeal on October 20, 1953, and sustained the Regional Director "for the same
reason that it found the petition in the previous cases premature."
From the time the three Reedsville plants went into operation, including the
period during which both Steelworkers' petitions were pending in 1953, the Respond-
ents had been refusing requests of District 50 that the Respondents recognize District
50 and otherwise extend the Morgantown contracts to the Reedsville operations.
District 50 renewed its demands after the Board dismissed the Steelworkers ' appeal
on October 20, 1953, and on November 2, 1953, the Respondents and the 2 Morgan-
town Companies executed an agreement with District 50 in which the 5 Companies
recognized District 50 as exclusive bargaining representative of the Reedsville em-
ployees and otherwise extended the terms of the Morgantown agreements to the
Reedsville operations, thus establishing, in effect, a 5-plant contract unit. The
execution of this November 2 contract is the conduct which the General Counsel
contends is violative of the Act.
The integration of management, ownership, and operations appertaining to all
five plants has remained the same since the May 1953 hearings in Case No.
6-RC-1256, the Board's findings thereupon being set forth above in the excerpts
from the Board's Decision in the matter (106 NLRB 109). At the May hearing
date in that case the 3 Reedsville plants had a total complement of 54 employees
(31 of whom had come from the Morgantown plants ); and, as also stated above,
the Respondents asserted in that proceeding that they expected to increase their
Reedsville working force to 150-175 employees within 6 months and to approxi-
mately 340 employees by May 1954. On November 2, 1953, the Morgantown
206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plants had 658 employees and the Reedsville plants had approximately 60 rank-
and-file employees; and, on October 11, 1954, the hearing date in the present case,
the Morgantown plants had 786 employees and the Reedsville plants had 59 em-
ployees. So far as the record shows, the total complement in the Reedsville plant
has never exceeded approximately 60 rank-and-file employees.
John R. Hardesty is an officer of all 5 Companies, including the 3 Respondents.
Hardesty testified that the Respondents were still intending to carry out their men-
tioned expansion program when they executed the November 2 agreement with
District 50 but that they did not expand the Reedsville operations after November 2;
that sometime in the spring of 1954 the 5 Companies, for reasons of business con-
sideration, decided to increase operations at the Morgantown plants instead of
further expanding the Reedsville complement. The Reedsville plants were thus
ultimately stabilized at or about the employment level substantially existing in May
and November 1953.
It is recalled that the Board had consolidated the objections matter arising
out of the 1951 election in the two Morgantown plants with the 1951 unfair labor
practice charges against the Morgantown Companies. This consolidated matter
was finally resolved by the Board on May 5, 1954: on this date the Board dismissed,
on the merits, the entire complaint in the unfair labor practices matter, including
allegations of domination and support as to District 50; and, upon finding that it had
erroneously rejected District 50's contract-bar contentions and thus "improvidently
directed" the 1951 election, the Board also vacated the Direction of Election and
dismissed the petitions in that representation matter.
B. Contentions and resolution of issues
The General Counsel contends that Respondents have violated Section 8 (a) (1)
and (2) of the Act "by recognizing and contracting with District 50 . . . at a time
when the Respondents were required to refrain from such action until the doubt
of the majority status and/or the separate desires of the employees of the three new
[Reedsville] plants had been considered by the Board." The General Counsel thus
further asserts that, by resolving themselves the representation issue between the Steel-
workers and District 50 as to the Reedsville plants, Respondents "flaunted the Board's
election procedures" in violation of the Mid-West Piping doctrine.5
The Mid-West Piping doctrine is part of a body of law which generally prohibits
an employer from according recognition to a favored union in the face of rival
claims of another union.6 Such disparate grant of recognition was considered un-
lawful long before the Mid-West Piping case arose, and the specific Mid-West Piping
principles ordinarily apply to situations where a representation petition is on file
with the Board. Respondents contend, accordingly, that Mid-West Piping is inappli-
cable to the instant case because the Steelworkers had no petition pending on Novem-
ber 2, 1953, when Respondents executed the contract with District 50. See Siler
Milo Company, 92 NLRB 1680, 1683.
Respondents, however, are scarcely in a ,position to urge the lack of an actual
pending petition as a reason for not applying Mid-West Piping here. For the repre-
sentation proceedings filed by the Steelworkers in 1953 either would have been re-
solved by a final determination of the Board or would have otherwise been pending
before the Board in November 1953 had Respondents not persuaded the Board that
it was not then appropriate to hold an election because of expanding unit considera-
tions, which conditions still prevailed on November 2, according to Respondents' own
testimony.? If Respondents' contentions were accepted in this regard, moreover, a
union seeking certification would have to file new petitions immediately to protect
its status as a claimant for recognition and the Board would accordingly have to
process an endless string of appeals from Regional Directors' dismissals whenever,
as in the case of the Steelworkers' 1953 petitions, a petition is dismissed on grounds
of prematurity. Unlike the merely "speculative possibility" of a rival claim in Siler
Mill case, supra, the Steelworkers filed two petitions in 1953 and the Board deter-
mined the original petition to have sufficient showing of interest to warrant a hearing
and presumably an election, as well, if the Reedsville unit were appropriate. These
facts, of which Respondents were entirely aware, are more than a "speculative possi-
bility" of a claim, and the effect of the Board's dismissal of the petitions "without
prejudice" to another petition at a more seasonable time was to keep alive the
5 Mid-West Piping-and Supply Company, 63 NLRB 1060.
9 See Sunbeam Corporation, 99 NLRB 546, 550-551
4 See Arrow Candy Co., Inc, 100 NLRB 573, 575, where the Board recognized the
pertinency of equitable circumstances in regard to the related General Electric X-Ray
rule in representation cases. Cf. Best Art Products, Inc., 111 NLRB 81.
PITTSBURGH VALVE COMPANY 207
Steelworkers ' statutory status as a claimant for a reasonable period, at least until
the Respondents abandoned their Reedsville expansion program in the spring of
1954 upon which program the Board had predicated its dismissal of the Steelworkers'
petition . Whether the case be viewed either within Mid-West Piping concepts or
within broader principles applicable to disparate treatment between unions, 1 am
satisfied .that a violation occurred , providing other requirements for the violation are
met, even though no petition was pending on November 2, 1953.
In order that a violation on a Mid-West Piping theory be established it must fur-
ther appear , however, that the petitioning union raised a true question concerning
representation by requesting , among other things, recognition in behalf of an appro-
priate bargaining unit . William Penn , 93 NLRB 1104 , 1106 ; Roegelein Provision
Company, 99 NLRB 830. Relying upon this authority , the Respondents seek a
dismissal here upon their assertion that a unit limited to the Reedsville operations is
not appropriate and that the Board itself made such determination in the Board's
Decision of July 1953 (106 NLRB 109). The General Counsel , on the other hand,
rejects this interpretation of the Board's Decision and he urges that the only matter
decided by the Board was that an election was premature.
Unlike the situation where the Board determines that either an overall unit or a
segment :of such overall unit may be appropriate depending'ultimately on the desires
of the employees in the smaller group 8 the Board stated ' in its July 1953 decision
"that absent extraordinary circumstances , the integrated character of the operations
and management of the five plants owned by these Companies would require a find-
ing that only a single bargaining unit for all five' plants of the five separate corpora-
tions is appropriate ." And it appears in reading further in that Decision that the
Board left open the unit question only to the extent of not deciding whether the
"unsettled conditions" ( relating to the then pending unfair practice charges against
the Morgantown Companies and the objections arising out of the 1951 election in
Morgantown ) would constitute such "extraordinary circumstances " as to warrant
setting up the three Reedsville plants as either an appropriate bargaining unit or a
separate voting group . This issue as to "extraordinary circumstances " arose from
the parties ' conflicting contentions concerning the so-called Waterous 9 doctrine: the
Respondents there relied on the Waterous case to support its five-plant unit con-
tention while the Steelworkers urged , as the Board stated , "that the unsettled condi-
tions resulting from the alleged 11951] unfair labor 'practices at Morgantown takes
this situation out of the purview of the rule of the Waterous case" ( 106 NLRB 109).
I cannot know , of course , how the Board would have resolved the Waterous ques-
tion in 1953 had it not dismissed the Steelworkers ' petitions for the expanding unit
reasons advanced by Respondents. On the basis of the Board 's Order on May 5,
1954, however, in which the Board dismissed on the merits the 1951 unfair labor
practice allegations against the Morgantown Companies , it is clear, albeit by hind-
sight , that there were no "unsettled conditions" within contemplation of the Board's
1953 Decision ( 106 NLRB 109). Under the Waterous doctrine , therefore , the Steel-
workers were not on November 2, 1953, seeking recognition either in an appropriate
unit or in an otherwise proper voting group.
In May 1954, however , the Board overruled the aforementioned Waterous doctrine
in The Zia Company , 108 NLRB 1134 , 109 NLRB 312, 109 NLRB 862, where the
Board stated that "where a group of employees has been excluded from a unit in
which they may appropriately be included , they should not be placed in the estab-
lished bargaining unit without first being extended the opportunity to vote as to
whether or not they desire to be represented by the current bargaining agent of the
established unit" (108 NLRB 1134). The smaller unrepresented group is entitled
to an election before placing them in the established overall unit , the Board further
stated in Zia, even though such group "does not constitute an appropriate bargaining
unit under the Board 's established principle ." The General Counsel contends that the
Zia case governs the present situation even though the Waterous rule was in effect
when the contract was executed on November 2, 1953; the Respondents on the other
hand , claim that, apart from the effects of applying Zia to the present case, they
relied and had a right to rely on the Board's statements covering a five-plant unit in
the July 1953 decision and, moreover , that the Zia case may not be applied retro-
actively in determining the lawfulness of Respondent 's conduct in executing the
contract in question.
Ordinarily in defending an unfair labor practices action , it may be assumed (al-
though I need not now decide ) that parties are entitled to rely on expressions by the
s For example; Acme Steel Company, Tool & Machinery Division , 110 NLRB 913; Upper
Peninsula Power Company, 110 NLRB 1082
9 92 NLRB 76
208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board concerning appropriate units, even where-as in the 1953 decision (106
NLRB 109)-the Board did not finally resolve the issue . (It is to be noted that in
the letter of September 17, 1953 , opposing the Steelworkers ' appeal of the Regional'
Director's dismissal of the Steelworkers ' second petition , Respondents acknowledged
that the Board 's decision in 106 NLRB 109 had not resolved the question of a sepa-
rate Reedsville unit or voting group raised here .) But it is still another situation
where the party seeking to invoke such equitable estoppel has recognized 1 of 2 com-
peting unions almost immediately after such party had advised the Board that the
unit is too amorphous in which to conduct a Board election and the party also had'
requested that an election should not be held until the unit situation has become
stabilized . Parties proceed at their "peril" in resolving these issues instead of await-
ing the orderly processes of the Act , and one of these "perils" in the circumstances
of this case , I find , is a change in Board policy when the conduct in question comes
up for decision in an unfair labor practice proceeding. See N. L. R. B. v. Local 404,
International Brotherhood of Teamsters , etc., 205 F . 2d 99, 103 (C . A. 1); N. L. R. B.
v. National Container Corp., 211 F . 2d 525, 534-535 (C. A. 2).
We reach , now, a consideration of the Zia case. The Board has held , even after
overruling the Waterous principle in the Zia case , that "the mere acquisition of a new
plant does not, of itself, warrant the holding of a separate election among its em-
ployees for the purpose of establishing a bargaining representative" (Hess, Goldsmith
& Company, Inc., 110 NLRB 1384 , as to the Penn and Taylor plants, and Bulova
Research and Development Laboratpries , Inc., 110 NLRB 1036-both decisions
citing Saco-Lowell Shops, 107 NLRB 590 ). Apparently , therefore , the Zia prin-
ciple, if it applies to new plants at all, is not an absolute one and its application de-
pends on the facts presented in each case, including such considerations as to whether
the new plant is merely an "accretion" to an existing unit . Cf. American Cast
Products, Inc., 110 NLRB 705; Bornstein Sea Foods , Inc., 111 NLRB 198.
There are significant points of similarity between the 5-plant unit situation in the
present case and various aspects of the Hess-Goldsmith , Bulova Research , and Saco-
Lowell cases supra: for example , common ownership and otherwise integrated own-
ership , management, and operations of all 5 plants; identical job skills, wages, va-
cation benefits , and other conditions of employment in the 5 plants; 10 geographical
proximity of the Morgantown and Reedsville plants; and transfer of comparatively
substantial numbers of employees and amounts of equipment from the Morgantown
plants to Reedsville . Considering all these factors, together with the other facts
found by the Board in 106 NLRB 109 , I conclude on the basis of the aforecited cases
that the three Reedsville plants do not constitute a separate appropriate unit and that
the Reedsville employees are not otherwise entitled to a self -determination election
as a separate voting group within the Zia doctrine as a condition to their inclusion
in an overall bargaining unit . The Steelworkers ' petition and continuing claims for
recognition of only the Reedsville employees did not and do not therefore present
a true question concerning representation within the William Penn case, supra. I
conclude, therefore , that no Mid-West Piping violation has been established, and I
shall accordingly recommend that the complaint be dismissed.ll
[Recommendations omitted from publication.]
10 In addition to the Board 's findings in 106 NLRB 109, see Respondents ' Exhibit No. 12,
p.'7, in the instant case.
n I grant the General Counsel's motion to strike , as regards District 50 's representation
showing. In view of my disposition of the case, it is unnecessary to discuss other matters
presented in defense.
Michigan Gear & Engineering Company and Local 157, Interna-
tional Union , United Automobile , Aircraft and Agricultural
Implement Workers of America, CIO, Petitioner . Case No.
7-RC-2852. October 5,1955
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Russell W. Bradley, hearing
114 NLRB No. 51.