Swift & Co.

National Labor Relations Board - Board Decisions

Nov 3, 1960

129 N.L.R.B. 622 (N.L.R.B. 1960)

622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. By discriminating in regard to the hire and tenure of employment of Paul F.
Hoffman and Ervin Worth, thereby discouraging membership in the Union , Respond-
ent has engaged in and is engaging in unfair labor practices within the meaning of
Section 8(a) (3) of the Act.
3. By interfering with, restraining , and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act.
4. By interrogating its employees regarding their union activities and sympathies
and regarding the union activities and sympathies of other employees , by granting a
wage increase , and changing the employees ' work schedule in order to defeat the
employees ' organization drive, thereby interfering with, restraining , and coercing said
employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent
has engaged in and is engaging in unfair labor practices within the meaning of Section
8(a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
St. Louis Independent Packing Company , a Division of Swift
& Company and Amalgamated Meat Cutters and Butcher
Workmen of North America , AFL-CIO and Local 20, National
Brotherhood of Packinghouse Workers and National Brother-
hood of Packinghouse Workers , Parties to the Contract. Case
No. 14-CA-2238. November 3, 1960
DECISION AND ORDER
On June 13, 1960, Trial Examiner Arnold Ordman issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent, the
Charging Party, and National Brotherhood of Packinghouse Work-
ers, and its Local 20, filed exceptions to the Intermediate Report and
all of these parties filed supporting briefs.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Leedom and Members Rodgers and Jenkins].
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 Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner 1 except as noted below?
1 The Board recently considered substantially the same issues involving the parties at
another plant of the Respondent , finding that Respondent violated Section 8 ( a) (2) and (1)
by conduct similar to that here involved . Swift and Company, 128 NLRB 732.
2 We do not adopt the Trial Examiner 's characterization of the letters written by the
Respondent as illegal . We nevertheless agree with the Trial Examiner that the letters
are material in evaluating Respondent 's conduct.
129 NLRB No. 71.
ST. LOUIS INDEPENDENT PACKING COMPANY, ETC. 623
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 Respondent, St. Louis Inde-
pendent Packing Company, A Division of Swift & Company, its
officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Recognizing National Brotherhood of Packinghouse Workers
and/or Local 20, National Brotherhood of Packinghouse Workers, as
the representative of the production and maintenance employees at its
St. Louis, Missouri, plant for the purpose of dealing with the Re-
spondent concerning grievances, labor disputes, wages, rates of pay,
hours of employment, or other conditions of employment, unless and
until the said labor organization or organizations have been duly
certified by the National Labor Relations Board as the exclusive repre-
sentative of such employees.
(b) Entering into, renewing, giving effect to, or publicizing any
negotiations, agreements, or understanding with either or both of the
above-named labor organizations respecting the production and main-
tenance employees at its St. Louis, Missouri, plant, unless and until
either or both of the said organizations shall have been duly certified
in the manner stated above.
(c) Interfering with, restraining, or coercing employees in the
exercise of their rights to self-organization, to form labor organi-
zations, to join or assist Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO, or any other labor organi-
zation, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid and protection, or to re-
frain from any or all 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, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Withdraw and withhold all recognition from National Brother-
hood of Packinghouse Workers and/or Local 20, National Brother-
hood of Packinghouse Workers, as the representative of its production
and maintenance employees at its St. Louis, Missouri, plant for the
purpose of dealing with Respondent concerning grievances, labor
disputes, wages, rates of pay, hours of employment, or other conditions
of employment, unless and until the said labor organization or organi-
zations shall have been duly certified by the National Labor Relations
Board as the exclusive representative of such employees.
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Post at its plant in St. Louis, Missouri , copies of the notice
attached hereto marked "Appendix ." 3 Copies of said notice, to be
furnished by the Regional Director for the Fourteenth Region , shall,
after being signed by Respondent 's authorized representative, be
posted by it immediately upon receipt thereof, and be maintained by
Respondent 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 said
notices are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the Fourteenth Region, in
writing, within 10 days from the date of this Decision and Order, what
steps Respondent has taken to comply herewith.
3In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX
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 :
AVE WILL withdraw and withhold all recognition from National
Brotherhood of Packinghouse Workers and/or Local 20, National
Brotherhood of Packinghouse Workers, as the collective-
bargaining representative of the production and maintenance
employees at our St. Louis, Missouri, plant, and will not recognize
the said labor organization or organizations as such representa-
tive, unless and until the said labor organizations shall have been
duly certified by the National Labor Relations Board as the
exclusive representative of such employees.
WE WILL NOT enter into, renew, give effect to, or publicize any
negotiations, agreements, or understanding with the above-named
labor organizations, unless and until either or both of the said
labor organizations have been duly certified in the manner stated
above.
WE WILL NOT interfere with, restrain, or coerce our employee's in
the exercise of their right to self-organization, to form labor or-
ganizations, to join or assist Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO, or any other
labor organization, to bargain collectively through representa-
tives of their own choosing and to engage in any other concerted
activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all such activities,
except to the extent that such right may be affected by an agree-
ST. LOUIS INDEPENDENT PACKING COMPANY, ETC. 625
ment requiring membership in a labor organization as a condition
of employment, as authorized in Section 8(a) (3) of the Act, as
modified by the Labor-Management Reporting and Disclosure
Act of 1959.
ST. Louis INDEPENDENT PACKING COMPANY,
A DIVISION OF SWIFT & COMPANY,
Employer.
Dated----- ----------- B-'-------------------------------------
(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.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
An unfair labor practice charge having been filed on December 9, 1959, by
Amalgamated Meat Cutters and Butcher Workmen of North America , AFL-CIO
(herein called Amalgamated ), the General Counsel of the National Labor Relations
Board issued a complaint , dated January 12, 1960, against St. Louis Independent
Packing Company, a Division of Swift & Company i ( herein called Respondent),
alleging that Respondent violated Section 8(a) (1) and (2) of the National Labor
Relations Act, as amended , by rendering assistance and support to National Brother-
hood of Packinghouse Workers and its Local 20 (herein called NBPW and Local
20, respectively). Respondent filed an answer denying the alleged violations, and
NBPW and Local 20, as parties to a contract with Respondent, likewise filed a
document entitled "Answer to Complaint" denying that Respondent had engaged
in the alleged violations . A hearing thereon was held before the duly designated
Trial Examiner in St . Louis, Missouri , on February 19, 1960. All parties were
represented at the hearing. The only evidence adduced was by way of stipulation
and by the introduction of exhibits .2 The parties waived oral argument at the
hearing and elected to file briefs.
Upon the entire record ,3 and upon consideration of the briefs, I make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent, a corporation duly authorized to do business in the State of Missouri,
is engaged at its St. Louis, Missouri, plant in packinghouse activities including the
slaughtering and butchering of animals and the wholesale distribution of meat. In
the course of its business Respondent annually ships from its St. Louis plant to
points outside the State of Missouri goods valued in excess of $50,000. The parties
stipulate, and I find, that Respondent is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
Amalgamated, NBPW, and Local 20 are labor organizations within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The issue defined
The issue here in controversy is a narrow one. The production and maintenance
employees at Respondent's St. Louis plant had for some years been represented for
1 The name of the Company appears as corrected by stipulation of the parties at the
hearing
2 Certain exhibits not admitted Into evidence by the Trial Examiner have been placed
in the "rejected exhibits" file.
3A motion to correct certain errors in the transcript of the hearing is hereby granted.
586439-61-vol. 129-41
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purposes of collective bargaining by NBPW and its Local 20. Together with other
appropriate units of employees working at various locations in Respondent's multi-
state enterprise, who likewise were represented for collective bargaining by NBPW
and its various locals, the terms and conditions of employment of the St. Louis
employees were governed by a master agreement which, subject to appropriate notice,
expired on September 1, 1959.4 Appropriate notice was given and negotiations
ensued for a new master agreement. In the meantime, however, Amalgamated was
seeking to displace NBPW as bargaining representative of the St. Louis production
and maintenance employees and itself obtain that status. To this end Amalgamated
on May 1, 1959, at a time when it was concededly appropriated to do so, filed a
representation petition with the Board to determine the representation question
respecting the St. Louis employees. Notwithstanding that the representation of the
St. Louis employees was thus in issue and that the question raised thereby was pend-
ing before the Board for resolution, Respondent continued to negotiate and enter
into agreements with NBPW not only respecting the various other groups of em-
ployees covered by the predecessor master agreement but also respecting the St.
Louis employees. Respondent also concurrently publicized to its employees the
substance and content of its negotiations and agreements.
Stripped to its bare essentials, the question thus presented is whether an employer
may negotiate and enter into agreements with an incumbent bargaining representa-
tive-and publicize such negotiations and agreements-at a time when the continued
representative status of the incumbent has been put in question and a proceeding to
resolve that question is pending before the Board.
General Counsel and Amalgamated, the Charging Party herein, take the position
that Respondent's conduct in continuing to deal wtih NBPW concerning the terms
and conditions of employment of the St. Louis employees, and in publicizing
to those employees the course and results of such dealings, at a time when Respond-
ent knew that the question of their representation was in issue and was pending
before the Board for resolution, violated Respondent's duty of neutrality in a contest
between labor organizations competing for employee support and, pro tanto,
constituted unlawful support and assistance to NBPW and its Local 20. Such
conduct, General Counsel and Amalgamated argue, is in derogation of the rights of
the employees to make a free choice between competing labor organizations and
constitutes a violation of Section 8(a) (1) and (2) of the Act.
Respondent and NPBW, for their part, take the position that Respondent's conduct
was lawful in all respects, that its negotiations with NBPW respecting the St. Louis
employees was only incidental to its overall negotiations for a new master agreement
covering numerous plants in its operations in which NBPW was the unchallenged
bargaining representative, that it did not discriminate for or against the St. Louis
employees, and that its conduct in this regard was required by the nature of its opera-
tions and reflected a course of dealings which it had consistently followed not only
with respect to NBPW but also with respect to other international labor organiza-
tions, including Amalgamated, with which it had similar arrangements and master
agreements. See footnote 4, supra. In further support of Respondent's position, it
is urged that at all times here relevant, the great majority of the St. Louis employees
desired NBPW and its Local 20 as their bargaining representative, and that in any
event Respondent and NBPW throughout all their agreements and negotiations in-
cluded a precautionary provision that in the event a different bargaining representa-
tive was designated for any group of employees covered by their agreements, the
agreements would be of no effect as to such employees.
Before proceeding to resolve the foregoing issues, a somewhat fuller recital of
the facts, all of which are undisputed, is appropriate.
B. Chronology of events
On September 23, 1954, the Board certified Local 20 of NBPW as the exclusive
bargaining representative of the employees in a bargaining unit consisting essentially
of the nonsupervisory production and maintenance personnel in Respondent's St.
Louis plant. No certification respecting these employees has been issued since. On
October 11, 1956, Respondent and NBPW entered into a master agreement concern-
ing wages, hours, and working conditions of some 17 bargaining units of Respond-
ent's employees represented by NBPW and various locals thereof. One of the
units so covered was the St. Louis unit of production and maintenance employees
4 Respondent had similar arrangements and master agreements with Amalgamated and
with United Packinghouse Workers of America, AFL-CIO, who also represented groups of
its employees constituting appropriate bargaining units.
ST. LOUIS INDEPENDENT PACKING COIVIPANY, ETC. 627
here involved. On the same date, October 11, 1956, Respondent and NBPW entered
into a supplemental agreement which provided that in the event a different bargain-
ing representative was designated for the employees in any unit covered by the
master agreement, the terms and conditions set forth in the master agreement
would no longer be effective as to such employees.
The term of the 1956 master agreement was for 3 years and its expiration date,
subject to appropriate notice, was September 1, 1959. The master agreement did not
contain a union-shop provision; it did, however, provide for a dues checkoff upon
authorization of the individual employee, revocable by the employee at the end of
1 year or at the termination date of the agreement whichever occurred sooner.
Toward the end of the term of the 1956 agreement Respondent and NBPW
entered into negotiations for a new master agreement. In the meantime, however,
Amalgamated was making a bid to represent the St. Louis production and mainte-
nance employees who therefore had been represented by NBPW and its Local 20 and
who were covered by the 1956 master agreement. To that end Amalgamated on
May 1, 1959, filed a timely petition with the Board asking for a representation de-
termination respecting these employees. A hearing was held and in due course the
Board on August 26, 1959, issued its decision finding, in accord with the position
urged by Amalgamated and Respondent and over the objection of NBPW which
pressed for a multiplant unit, that the production and maintenance employees at
Respondent's St. Louis plant constituted a separate appropriate unit for purposes of
collective bargaining. The Board directed that an election be held to determine
whether these employees wanted to be represented for purposes of collective bargain-
ing by Amalgamated, by NBPW and its Local 20, or by neither. The election was
held on September 23, 1959, and 941 of the approximately 1,300 eligible voters
who cast ballots designated NBPW and its Local 20 as their choice for bargaining
representative. Thereafter Amalgamated filed timely objections to the conduct of
the election setting forth in substance the same allegations which are the subject
matter of the complaint herein. After due investigation the Regional Director of the
National Labor Relations Board for the Fourteenth Region (St. Louis, Missouri)
issued a report, dated November 3, 1959, recommending that the objections be
sustained, that the first election be set aside, and that a new election be conducted.
Upon appropriate exceptions to that report, the Board itself reviewed the matter
and on January 18, 1960, issued its decision adopting the Regional Director's findings
and recommendations. In the meantime, however, Amalgamated had filed the un-
fair labor practice charges herein and General Counsel had issued his complaint.
Accordingly, the Board entered an order deferring the second election pending dis-
position of the complaint herein.5
While the above-described representation proceeding was pending, Respondent
continued to negotiate with NBPW for a new master agreement to succeed the 1956
agreement.6 Notwithstanding that the question of representation respecting the
St. Louis employees was unresolved, Respondent continued to negotiate with NBPW
concerning their terms and conditions of employment along with the terms and
conditions of other groups of employees covered by the 1956 master agreement. On
August 21, 1959, 5 days before the Board's initial decision and direction of election,
Respondent and NBPW executed a temporary agreement reciting that because they
anticipated inability to consummate a successor master agreement by September 1,
1959, the terminal date of the old master agreement, the parties would continue
in effect the terms and conditions of the old master agreement and the supplements
thereto. The temporary agreement further provided that the terms and conditions
of the old master agreement and the supplements thereto would remain in effect
until the effective date of a new master agreement or until termination of the
temporary agreement by written notice of either party, whichever occurred first.
On September 18, 1959, 5 days before the election already described, Respondent
and NBPW entered into a-further agreement supplementing the terms of the August
21 agreement and granting an increase in wage rates and other benefits. Employees
in certain of the plants covered in the earlier agreements were excluded from these
benefits. The employees in the St. Louis plant, however, were included.
5 The facts set forth in the foregoing paragraph derived from the evidence submitted in
the instant unfair labor practice proceeding and from the public records in the representa-
tion proceeding (Case No. 14-RC-3006, not published in NLRB volumes), in which
Respondent, Amalgamated, and NBPW and Its Local 20 participated fully I take admin-
istrative notice of the public records in that proceeding.
e Concurrently, Respondent was carrying on separate negotiations with Amalgamated
and with United Packinghouse Workers of America, AFL-CIO, for new master agree-
ments with those organizations for the employees they represented.
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Finally, on October 22, 1959, Respondent and NBPW entered into a new master
agreement covering, inter alia, the production and maintenance employees in the
St. Louis plant. On the same day, Respondent and NBPW exchanged letters em-
bodying their understanding that in the event the National Labor Relations Board
should certify a different labor organization for any of the employees in any of the
bargaining units covered by the master agreement, such "Master Agreement would
cease and terminate as to such employees effective with the date of the Board's
certification." As already noted, Amalgamated's objections to the election were
pending before the Board at this time?
While the above-described negotiations were being carried on and the agreements
being executed, Respondent, pursuant to a consistent information policy followed
by it in all its plants, kept the St. Louis employees advised of the state of negotiations.
Thus, on September 4, 1959, in a two-page letter addressed to "All Master Agreement
Bargaining Unit Employees" and signed by H. W. Ninker, superintendent of the St.
Louis plant, Respondent told the St. Louis employees that it was offering "your
Union representatives" a 2-year contract and certain economic benefits. On the
same day, Ninker sent another letter to all his employees noting Respondent's
appreciation of "the constructive and reasonable attitude of you and your Union
officers" and attaching a copy of letter sent to employees represented by Amalgamated
and United Packinghouse Workers criticizing the latter unions for engaging in need-
less strike action.8
On September 8, 1959, the St. Louis employees received another letter signed by
Ninker setting forth in greater detail benefits "offered your union representatives."
A letter dated September 10, 1959, described a savings and security plan "offered to
your union." On September 21, 1959, 2 days before the scheduled election, Re-
spondent in a letter again signed by Ninker, told the St. Louis employees of the
agreement signed with NBPW on September 18, which put into immediate effect a
wage increase and other benefits.
On the other hand, on September 22, 1959, 1 day before the election, Ninker read
a statement to all St. Louis employees eligible to vote which stressed that the em-
ployees were free to vote for the union of their choice or for no union , and that
Respondent would recognize and bargain with any union that was certified. At
about this same time Amalgamated was issuing preelection leaflets bitterly criticizing
Respondent and NBPW, telling the employees the benefits Amalgamated was seeking,
and urging the employees to vote for Amalgamated.
As already noted, Respondent and NBPW executed a new master agreement on
October 22, 1959. On the following day, Ninker again wrote to the St. Louis em-
ployees enumerating the highlights of the agreement, congratulating "you and your
union" for working out the agreement at the bargaining table, and closing wiht the
statement: "This is a sound agreement which will provide the basis for a continuing
sound relationship."
C. Analysis, defenses, and concluding findings
As stated at the outset the basic issue here is whether an employer may negotiate
and enter into agreements with an incumbent bargaining representative-and pub-
licize such negotiations and agreements-at a time when the continued representative
status of that incumbent union has been put in question by a rival labor organization
and a proceeding to resolve that question is pending before the Board.
Generally speaking, the Board has, since its decision in Midwest Piping and Supply
Co., Inc., 63 NLRB 1060, held that an employer violates the Act by recognizing
and bargaining with one union at a time when another union has filed a petition for
certification which raises a real question concerning representation. This principle,
known as the Midwest Piping rule or doctrine, rests intrinsically on the proposition
that the choice of a bargaining representative under the statutory scheme is for the
employees and not the employer to make, and that the manifestation of employer
favor, arising out of a unilateral grant of recognition or bargaining rights to one
of two or more competing unions, constitutes unlawful assistance and support to
7 Throughout the entire period here relevant, Respondent handled grievances relating to
the St Louis production and maintenance employees with NBPW Efforts made by
Amalgamated in January 1960, to process grievances for certain of these employees who
had requested Amalgamated to take such action in their behalf were rebuffed.
$ As already suggested, letters virtually identical to those described herein, but signed
by the superintendent of the particular plant involved, were sent to employees in the
other plants covered by the master agreement with NBPW. This is also true of the
letters hereinafter describe,'
ST. LOUIS INDEPENDENT PACKING COMPANY, ETC. 629
the favored union and unlawfully interferes with the freedom of choice guaranteed
employees by the Act. In such competing union situations, resolution of the question
concerning representation is best left to the Board election machinery devised by
Congress for that purpose whereby the employees can make a free choice un-
trammeled by any concrete demonstration of employer favoritism.
The situation is no different where one of the competing unions has been the
incumbent bargaining representative of the employees involved. The right of em-
ployees to change their bargaining representative carries no less dignity in the
statutory scheme than their right to choose in the first instance between unions
competing for representative status. Accordingly, the Board, in Shea Chemical
Corporation, 121 NLRB 1027, 1029, held 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." In so holding, the Board squarely overruled its prior decision in
William D. Gibson Co., 110 NLRB 660, which for a brief interval introduced a
variation in the basic Midwest Piping rule to the extent that it permitted bargaining
with an incumbent representative in a rival union situation pending Board disposi-
tion of the question concerning representation.
Applying the rule of law laid down in Shea Chemical Corporation, supra, there-
fore, Respondent's violation of the Act would appear to be clearly established. For
it is undisputed that Respondent negotiated and entered into agreements with
NBPW-and publicized these dealings-at a time when Amalgamated, in support of
its claim for bargaining status, had filed a representation petition with the Board.
Respondent argues, however, that notwithstanding the pendency of Amalgamated's
petition, no real question concerning representation was presented and hence, under
the Board's own formulation, the Midwest Piping rule was inapplicable .9 Thus, Re-
spondent asseits that NBPW at all times here relevant represented a decisive ma-
jority among the production and maintenance employees in the St. Louis plant and
that Respondent was therefore wholly within its rights in dealing with NBPW con-
cerning their terms and conditions of employment. In support of its position Re-
spondent points to the fact that approximately 97 percent of the employees in the
appropriate unit indicated their adherence to NBPW by authorizing their dues to be
checked off in favor of that organization; that few, if any, of these employees
availed themselves of their right prior to the expiration of the 1956 master agree-
ment to revoke such authorizations; and that a decisive majority voted for NBPW
in the election on September 23, 1959. The short answer to this contention, of
course, is that the Board in the representative proceeding herein found that a ques-
tion of representation did exist and administrative regularity warrants the pre-
sumption that Amalgamated made the prerequisite showing of a substantial interest.
Moreover, Respondent's argument based on the checkoff authorizations is patently
without merit These authorizations would indicate that at most 3 percent of the
employees were dissatisfied with NBPW when as a matter of fact the election re-
vealed that approximately 27 percent of the employees who voted and almost 24
percent of all the employees eligible to vote cast their ballots for Amalgamated.
How many of the remainder might also have voted for Amalgamated had not Re-
spondent cast its weight in favor of NBPW is conjectural. At the very least how-
ever, it is manifest that a real question concerning representation was presented
and that the prerequisites for application of the Midwest Piping rule were satisfied.
But even assuming the applicability of the Midwest Piping rule, Respondent and
NBPW nevertheless argue that because of the special circumstances of this case
that rule should not be applied here. The considerations here advanced will be
considered seriaitim.
1. Preliminarily, Respondent contends that General Counsel is precluded from
relying on conduct which occurred before September 23, the date of the election,
and that its conduct thereafter was free of illegality. In support of this contention,
B Courts have on occasion rejected the Board's application of the 1T,dwc't Pin'nq rule
in particular cases because on their view of the facts in those cases no real nuestion con-
cerning representation was presented See for example Cleaver-Rrooks Aff0 Corpora-
tion v N L.R B , 264 F 2d 037 (CA 7), cert denied 861 II S, 817. setting aside 120
NLRB 1135 , N L R B v The Wheland Company et al , 271 F 2d 122 (C A 6), setting
aside 120 NLRB 814; Stewart Warner Corp v N L R R , 194 F 2d 207 (C A 4) setting
aside 94 NLRB 607 No rejection of the DTidwest Pzpinq rule was here involved how-
ever As already indicated, the Board, ton, regards the cvistence of a real nuestion con-
cerning representation as a prerequisite to application of that rule See 1V0iam Penn
Broadcast,,ny Company, 93 NLRB 1104.
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent notes that its preelection conduct was known to Amalgamated and that
Amalgamated,,by proceeding to an election notwithstanding that knowledge, waived
its right to rely on such conduct as a basis for a later unfair labor practice proceed-
ing. The argument has a deceptive appeal. The Board has held in representation
proceedings, as distinguished from unfair labor practice proceedings, that it will
not, generally speaking, entertain objections to an election based upon preelection
conduct of which the aggrieved party had knowledge but did not file charges or
otherwise protest such conduct to the Board until after the election was concluded.
F. W. Woolworth Co., 109 NLRB 1446. But the cutoff date even in these circum-
stances is not the date of the election; as Respondent urges, but rather the date of
the decision and direction of election-here August 26, 1959.10 Improper conduct
thereafter may be utilized as the basis for objections. In addition, with respect to
unfair labor practice proceedings as such, the Board has held in Aiello Dairy Farms,
110 NLRB 1365, that once a party has resorted to a representation election despite
its knowledge of prior unfair labor practices, it will not permit such party later to
resort to a Section 8(a) (5) (refusal to bargain) proceeding as an alternate means
of establishing its representative status. But see N.L.R.B. v. Howell Chevrolet Com-
pany, 204 F 2d 79, 86 (C.A. 9), affd. 346 U S. 482. The Aiello holding was based
in substantial part on the Board's view that sound administrative practice militates
against its "being compelled to diffuse its energy and expend time and public funds
in useless and repetitive proceedings." 110 NLRB 1365 at 1368 On the other
hand , the Board in the same case emphasized that it did not intend by this ruling to
let unfair labor practices go unremedied and accordingly entered a remedial order in
the Aiello case itself . Id. at 1369. The situation in the instant case is comparable.
Here no Section 8(a) (5) allegation was even made nor would the Board entertain
such an allegation under its Aiello holding. But nothing in the Act or in sound ad-
ministrative practice dictates that allegations of other unfair labor practices, if sub-
stantiated, should go unremedied and that the fruits of such unfair labor practices
be retained. To preclude such a result, all relevant conduct of Respondent within
the 6-month limitations penod prescribed by Section 10(b) may properly be con-
sidered.ll Even on Respondent's view however, it merits mention that, the agree-
ments of August 21 and September 18 and the attendant publicity aside, Respond-
ent's execution of a new master agreement on October 22, 1959, and its followup
letter of October 23, 1959, both of which occurred after the election and while ob-
jections to the election were pending, would themselves warrant a finding of unfair
labor practices under the Midwest Piping and Shea Chemical holdings
2. Respondent and NBPW argue further that Midwest Piping and Shea Chemical
precedent should not be applied here because Respondent's 1959 negotiations and its
new master agreement covered not only the St Louis production and maintenance
employees but also numerous groups of employees in other plants where no question
concerning representation was involved. To disrupt such overall bargaining, the
argument runs, because such a question is raised as to one group would not serve
the policies of the Act to encourage stability in bargaining relationships The fact
remains, however, that the St Louis production and maintenance employees con-
stituted a separate appropriate bargaining unit ,12 and neither in logic nor in law are
their statutory rights, including their right to change bargaining representatives,
diminished because Respondent and NBPW chose for reasons of their own to bunch
them for purposes of collective bargaining with employees in other bargaining, units
Cr'ntino'itol Can Company, Inc. 110 NLRR 1042. Amv'rican Can Co, 109 NT_RB
1284; Hvgrade Food Products Corn , 85 NLRB 841. This may. of course, add to
the complexities of Respondent's bargaining negotiations, but "economic interests
of an emnlover are not valid reasons for violation of the Act." Ai L R R v tihiek
Rr"wine Company, et al . 144 F. 2d 847, 853 (C.A. 8). Accord- N L.R B v Union
Manufacturing Compann', 200 F 2d 656, 659 (C A. 5) Moreover, the difficulties
Respondent envisages are more apparent than real. Respondent could have con-
tinued bargaining for all the units represented by NBPW and merely excluded the
St. Louis production and maintenance employees pending resolution of the question
1o As demonstrated by the record herein, the Regional Director's report on objections,
subsequently adopted by the Board, applied this rule in the representation proceeding
n In view of the foregoing, it seems unnecessary to stress that Respondent's argument
here is in the nature of an estoppel contention based on conduct of Amalgamated This
proceeding, however, is being pressed by General Counsel, a Government representative, in
the public interest, and authority need not be cited to demonstrate the inefficacy of an
estoppel defense in that regard
is Indeed. Respondent in the representation proceeding herein described urged the Board
to so find.
ST. LOUIS INDEPENDENT PACKING COMPANY, ETC. 631
concerning their representation . 13 Indeed , nothing in the Act would require or even
condone a suspension of Respondent 's bargaining obligation with respect to any
plants or units where the representation of its employees was not in issue.
3. Respondent likewise cannot rely on its "supplemental agreements " which pro-
vided that in the event a different bargaining representative was ultimately designated
or certified for a particular bargaining unit, any master agreement insofar as it related
to that unit would terminate and be of no effect. Respondent 's offense here arises
out of conduct which precedes in point of time such designation or certification and
Respondent cannot retroactively exonerate itself from liability for that past conduct.
More to the point , the gravamen of Respondent 's offense lies in the fact that its con-
duct tends to preclude the very designation or certification which it would utilize as
a shield for its prior conduct.
4. Similarly, Respondent 's statement to the St. Louis employees on September 22,
the day before the election , that they were free to vote for the Union of their choice
and that Respondent would bargain with such union does not erase the impact of its
earlier and later grants of concrete benefits to NBPW. Respondent 's willingness to
grant benefits to the St. Louis production and maintenance employees under the aegis
of NBPW had already been demonstrated by the actual grant of such benefits. Its
willingness to do so under the aegis of Amalgamated , so far as the St. Louis em-
ployees were concerned, was only a matter of verbal assurance.
5. Respondent contends that the essential element of discrimination essential in
this case to a finding of unlawful assistance and support or of unlawful interference
with employee rights is lacking . In that connection Respondent offered to prove that
similar or substantially equivalent benefits to those offered NBPW were likewise
being offered to its employees in other appropriate units represented by Amalga-
mated or by United Packinghouse Workers of America , AFL-CIO. The issue here,
however, is not the propriety of Respondent's overall labor relations policy. It is
merely whether Respondent unlawfully interfered with the statutory freedom of the
St Louis production and maintenance employees to change their bargaining repre-
sentative and whether Respondent gave unlawful assistance and support to NBPW
in that regard. So far as these employees were concerned , they had been represented
by NBPW and Respondent .had manifested its continued willingness to grant and had
in fact granted them benefits through NBPW. Moreover, in letters signed by their
own superintendent , Respondent had congratulated the St. Louis employees on the
"constructive and reasonable attitude" of NBPW and had made clear its desire "for
a continuing sound relationship ." 14 Under these circumstances the St. Louis produc-
tion and maintenance employees would have an understandable reluctance to risk a
change of representation even assuming they were aware that Respondent in other
plants and areas did not discriminate as between unions.
I conclude therefore that Respondent 's several defenses are without merit and that
a finding of violation of Section 8(a)(1) and (2) of the Act, as alleged in the com-
plaint, is warranted.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The unfair labor practices of the Respondent set forth in section III, above , occur-
ring in connection with the operations of Respondent described in section I, above,
have a close , intimate , and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes affecting commerce and the free
flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices , Section 10(c)
of the Act directs that an order issue requiring Respondent to cease and desist from
such practices and to take such affirmative action as will effectuate the policies of the
Act. I shall recommend such an order.
Inasmuch as Respondent improperly resolved the question concerning the repre-
sentation of its St. Louis production and maintenance employees by according NBPW
"For reasons set forth in Shea Chemical Corporation , supra , 121 NLRB at 1029, there
is no merit to the contention that such a course of action would in effect amount to un-
lawful assistance to Amalgamated. A similar contention was long ago rejected by the
Supreme Court in May Department Stores v. N L R B , 326 U S. 376, 385-386
1+ Respondent urges that its letters to the employees were free of threats of reprisal or
force or promises of benefit and hence were protected by Section 8(c) of the Act. Re-
spondent misconceives the issue No claim is made that the letters were in and of them-
selves coercive or unlawful. Their illegality lay rather in the fact that they published
and thereby impressed upon the employees the preference which Respondent had for
dealing with NBPW and Respondent 's concrete implementation of that preference
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and its Local 20 continued recognition as their collective -bargaining representative, I
shall direct that Respondent withdraw and withhold such recognition unless and until
the said labor organization or organizations shall have demonstrated exclusive ma-
jority representative status pursuant to a Board-conducted election. I shall further
direct that Respondent cease giving effect to any agreements, contracts, or under-
standings between itself and NBPW or Local 20 respecting its St. Louis production
and maintenance employees , or to any modifications or extensions thereof subject to
the same condition. Nothing in this recommended order, however, shall be construed
as requiring Respondent to vary the wages, hours, or other terms and conditions of
employment which Respondent has heretofore established in that regard. Finally, I
shall recommend that Respondent post appropriate notices to dissipate the effect of
its unfair labor practices.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of Section 2 ( 6) and (7)
of the Act.
2. Amalgamated, NBPW, and Local 20 are labor organizations within the meaning
of Section 2(5) of the Act.
3. By granting unlawful assistance and support to NBPW and Local 20, Respond-
ent has violated Section 8(a) (2) of the Act.
4. By frustrating the Section 7 rights of its employees to self-organization and col-
lective bargaining, Respondent has violated Section 8 (a) (1) of the Act.
[Recommendations omitted from publication.]
International Ladies Garment Workers Union [Home Manu-
facturing Company] and B. Pauline Anderson Baldwin. Case
No. 13-CB-858. November 3, 1960
DECISION AND ORDER
On July 15, 1960, Trial Examiner William Seagle issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in and was not engaging in the unfair
labor practices alleged in the complaint and recommending that the
complaint be dismissed in its entirety, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report, and a supporting brief.
The Board i 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 brief, and the entire record in the case,
and hereby adopts the Trial Examiner's findings,' conclusions, and
recommendations.'
[The Board dismissed the complaint.]
'Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [Members Rodgers, Jenkins,
and Fanning].
2 We have carefully reviewed each of Respondent's exceptions and we find them to be
without merit. We deem it unnecessary to discuss them further herein in light of our
ultimate disposition of this matter
3 We have adopted the Trial Examiner's finding that Respondent did not engage in
unfair labor practices within the meaning of Section 8(b) (1) (A) and (2) of the Act
pro forma in the absence of exceptions to such finding by any of the parties
129 NLRB No. 75.