The Wheland Co.

National Labor Relations Board - Board Decisions

May 7, 1958

120 N.L.R.B. 814 (N.L.R.B. 1958)

814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Wheland Company and United Steelworkers of America,
AFL-CIO and Local 176, Allied Industrial Workers of America,
AFL-CIO, Party to the Contract . Case No. 10-CA-2734. May 7,
1958
DECISION AND ORDER
On May 17, 1957, Trial Examiner Louis Plost issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent 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
Contracting Party, and the General Counsel filed exceptions to the
Intermediate Report and supporting briefs. The General Counsel
also filed a reply brief.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are 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 recommenda-
tions of the Trial Examiner only to the extent that they are consistent
with the findings, conclusions, and order hereinafter set forth.
1. For the reasons hereinafter discussed, we agree with the Trial
Examiner's conclusion that the Respondent, by recognizing and con-
tracting with Allied, gave unlawful assistance to that organization
in violation of Section 8 (a) (2) and (1) of the Act. We also find
that the Respondent, in violation of the same provisions of the Act,
gave further unlawful assistance to Allied by granting preferential
seniority to Allied's members in derogation of the rights of other em-
ployees in the bargaining unit.
The relevant facts in the record are not substantially in dispute, and
are as follows :
On August 31, 1956, when the Respondent decided to institute
changes, the Respondent's operations in Chattanooga, Tennessee, com-
prised three divisions : an ordnance division, located at a plant on
Signal Mountain Road, where the Respondent manufactured cannon
under contracts with the United States Government; a manufacturing
division, at a plant on Broad Street, for the machine fabrication of
castings and sawmill and oil-drilling equipment; and a foundry divi-
sion, also located on Broad Street in a plant adjacent to that of the
manufacturing division. The foundry, not directly involved herein,
employed 600 to 900 employees, who were and still are represented by
the Steelworkers, the Charging Party herein. Manufacturing divi-
sion employees, numbering about 160, are in 2 bargaining units : a pro-
duction and maintenance unit of about 135 employees represented by
120 NLRB No. 105.
THE WHELAND COMPANY 815
International Association of Machinists, and a residual unit of about
25 employees represented by the Steelworkers. Ordnance division
employees, 212 or 213 in number, were represented by Allied.'
Allied's contract for ordnance division employees was scheduled to
expire September 15, 1956, and negotiations for a new agreement were
in progress. The contracts of the IAM and the Steelworkers covering
their respective units of manufacturing division employees had expira-
tion dates falling in November 1956.
On August 31, 1956, the Respondent decided to abolish the ordnance
and manufacturing divisions and consolidate their operations in a
new Wheland Products Division to be located at the Signal Mountain
Road plant. The reasons expressed at the hearing for such decision
were that the Respondent needed space for its expanding foundry
operation, that the Respondent was finishing up existing cannon con-
tracts in the already curtailed ordnance operation, and that, by
effecting such changes, the Respondent would make space available
for the foundry, utilize more fully the space at Signal Mountain
Road, and provide an opportunity for improvement in methods and
procedures and for expansion of the types of products to be manufac-
tured in the consolidated operation. Allied was informed of the
decision to consolidate on September 4. On September 5, the
Respondent sent letters to all affected employees and, on the same date,
conferred with the IAM and the Steelworkers local committee repre-
sentatives of the two manufacturing division units to apprise them of
its decision. At that conference, according to the uncontradicted
testimony of Rector, a Steelworkers committee representative, the
Respondent informed the representatives that : The consolidation was
a fact; the move of the machine shop (manufacturing division opera-
tion) to the Signal Mountain Road plant would begin in a few days;
the speed of the move would depend upon how quickly the Govern-
ment moved out some of its machinery from the gun plant; as the
machines were moved from Broad Street, the men operating them
would also move; the employees covered by the IAM's contract would
remain under it until completion of the move; and "up until we
complete the move, we will call in the Board and have an election to
determine what Local will represent you fellows." [Emphasis
supplied.] As to the effect the move would have on seniority, the
Respondent stated that it would try to protect the seniority of
machine-shop employees but that it was a matter for the union which
would represent them.
On September 10, Allied demanded recognition from the Respond-
ent for a unit of all employees of the new WTheland Products Division
1 About a year earlier, bet seen 200 and 250 employees had been laid off by the ordnance
division Although these laid-off employees had recall rights under Allied's then existing
contract, few had been recalled at the time of the healing
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the ground that the addition of former manufacturing division
employees to the group it then represented constituted merely an
accretion. The Respondent contacted the Steelworkers' Interna-
tional representatives the following day and informed them of Allied's
demand and of the Respondent's intention to reject it. The
Respondent also urged them to ignore any possible picketing of the
foundry in the event Allied struck to enforce its demand, and stated
that it intended to notify Allied that the Respondent was not going
to sign an agreement with it until an election was held to determine
the bargaining agent. The Respondent also told the Steelworkers
representatives that it hoped some union would petition for an elec-
tion, because the Respondent was in some doubt as to its own right to
do so under the circumstances 2 The Steelworkers representatives
replied that they were leaving town the next day to go to a CIO
convention in California and would consult with their regional
director concerning the matter. They stated, however, that they
intended to "protect their members." The next day, September 12,
the Respondent met with Allied and rejected the demand for recog-
nition based upon an accretion theory. Whereupon Allied asked the
Respondent whether it would grant recognition if Allied obtained
newly signed authorization cards from a majority of all employees
designated as part of the new division. The Respondent agreed that
it would do so. The next day, Allied submitted cards newly signed by
206 employees who were formerly employed by the ordnance division.
It is conceded that no cards were solicited or received from former
manufacturing division employees. After checking the cards against
the payroll and conducting interviews of 10 percent of the signatories,
taken at random, for assurance that they were not coerced into
signing, the Respondent accorded recognition to Allied.
On September 18, the Respondent and Allied entered into an interim
agreement which recognized Allied as the bargaining representative
of the Wheland Products Division at the Signal Mountain Road plant
and adopted, insofar as practicable, the prior agreement between Allied
and the ordnance division. The interim agreement also provided that
the Respondent may move employees then working in its former
manufacturing division on Broad Street to the Signal Mountain Road
plant without regard to seniority, and that employees so moved would
not replace employees then working in that plant. It also provided
for reopening of the contract in 90 days for the negotiation of new
substantive terms.
On September 28, the IAM filed a petition in Case No. 10-RC-3660
for an election in a unit of all employees of the new division working
-It is clear, however, that under Section 9 (c) (1) (B) of the Act, an employer may
file a representation petition when presented with a union 's claim for recognition.
THE WHELAND COMPANY 817
at the Signal Mountain Road plant. However, the processing of such
petition was suspended by the Regional Director because of the
pendency of the charges in the instant case.'
By November 15, 1956, the movement of the former manufacturing
division operation to the Signal Mountain Road plant was completed.
Pursuant to the terms of the interim agreement, negotiations for new
substantive provisions were instituted in October, and on January 3,
1957, a new contract was executed. Prior to execution of such contract,
the Respondent agreed orally with Allied to establish a new seniority
roster under which employees formerly part of the manufacturing
division would be given credit of 1 year's seniority for each 2.6623
years actually worked in the old division, while employees formerly
with the ordnance division would receive full credit for their past
service in that division. It appears that by the time of the hearing
in this case, the total number of employees in the new division was
reduced from 375 to a little over 300.
The Respondent contends, in substance, that, as Allied produced
proof that it represented a majority of all employees in the new
Wheland Products Division unit, and as no conflicting claim existed
for such unit, the Respondent was obligated under the Act to recognize
and bargain with Allied. We do not agree.
In the recent Novak case,' the Board reaffirmed its adherence to its
Midwest Piping doctrine,' stating that "an employer faced with
conflicting claims of two or more rival unions which give rise to a
real question concerning representation may not recognize one of
these unions until its right to be recognized has been finally determined
under the special procedures provided in the Act." The Board there
pointed out the unreliability of membership cards as evidence of
majority representation in the face of conflicting claims.
In the present case, the facts related above show, contrary to the
Respondent's contention, that the Respondent granted recognition
to Allied with full knowledge of the claims of the IAM and the
Steelworkers to represent employees in the newly created unit. This
is plainly indicated by the statements of the Respondent to repre-
sentatives of the IAM and the Steelworkers apprising them of the
consolidation and assuring them that the question as to which of the
three unions involved would represent the consolidated unit would
be resolved by a Board election. The Respondent later reiterated to
the Steelworkers representatives that it would not sign an agreement
with Allied until the representative of the consolidated unit was de-
termined by an election. In these circumstances, the fact that the
8 Pursuant to Section 7 (d) of the Administrative Procedures Act, the Board takes
official notice of the pendency and status of the representation proceeding instituted by
the IAM. J. S. Abea crombie Company, 83 NLRB 524.
A Novak Logging Company, 119 NLRB 1573.
®bfidaoest Piping and Supply Company, Inc., 03 NLRB 1060, 1070.
483142-59-vol . 120-53
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TAM and the Steelworkers did not specifically state their claims to
representation in the new unit is of no significance. It was clearly
unnecessary and the Respondent so understood it. Moreover, shortly
after the Respondent recognized Allied, the TAM filed the representa-
tion petit on mentioned above for the employees in the Wheland
Products Division.
It thus appears from the foregoing that the Respondent recognized
and entered into a contract with Allied in disregard of the conflicting
claims of the TAM and the Steelworkers, the former of which, at least,
was clearly sufficient to raise a real question concerning representation
in the unit of Wheland Products Division employees. In view of
these conflicting claims, the fact that Allied submitted to the Respond-
ent authorization cards purportedly signed by a majority of the em-
ployees in the new division did not require the Respondent to recognize
Allied as the exclusive representative of these employees or justify its
action. As previously indicated, membership cards in such circum-
stances are not reliable evidence of majority status.
Accordingly, we find that the Respondent, by recognizing and con-
tracting with Allied as the representative of its employees in the
Wheland Products Division, gave unlawful assistance to that organiza-
tion within the meaning of Section 8 (a) (2) of the Act and thereby
interfered with, restrained, and coerced employees within the meaning
of Section 8 (a) (1) of the Act.'
2. Apart from our finding that the Respondent unlawfully recog-
nized and bargained with Allied for the unit of Wheland Products
Division employees, we further find that the Respondent violated Sec-
tion 8 (a) (2) and (1) of the Act by granting preferential seniority
to former ordnance division employees upon the basis of their member-
ship in, and past representation by, Allied. The General Counsel ex-
cep*ed to the Trial Examiner's failure to make any findings concern-
ing the allegations of such preferential seniority.
The record reveals that the consolidation of the manufacturing and
ordnance divisions into the new Wheland Products Division brought
with it the question of seniority rights of the employees involved At
such time, there was also a real problem of a possible layoff of former
ordnance division employees because the Respondent was finishing up
its Government contracts for cannon production. Although fully
aware of these problems and of the interest of the TAM and the Steel-
workers in protecting the job security of former manufacturing divi-
sion employees, the Respondent, without discussing the matter with
these unions, included in its interim agreement with Allied a provi-
sion that former manufacturing division employees who moved to the
Signal Mountain Road plant would not replace the former ordnance
division employees working there. Implementing this agreement, and
6 Novak Logging Company, supra, and cases cited therein.
THE WHELAND COMPANY 819
again without the participation of the IAM and the Steelworkers, the
Respondent and Allied thereafter agreed to a formula whereby the
former manufacturing division employees were only given credit of
1 year's seniority for each 2.6623 years of service, while the former
ordnance division employees received full credit for their service.
The Respondent advanced no cogent reason why greater job security
was given to the one group over the other.' It is significant, however,
that the employees in the preferred group were in the greatest danger
of being laid off, that their past representative was Allied, and that
virtually all of them had signed new authorization cards for Allied-
upon which basis the Respondent recognized Allied for the new unit,
whereas no former manufacturing division employee had signed such
cards.'
The foregoing evidence persuades us that the General Counsel
established at least a prima facie case that the Respondent gave un-
lawful assistance and support to Allied by granting preferential sen-
iority to Allied's members. This evidence the Respondent made no
effort to rebut with a reasonable explanation for the disparity of
treatment.
Accordingly, we find that the Respondent violated Section 8 (a) (2)
and (1) of the Act by granting preferential seniority rights to former
ordnance division employees over the former manufacturing division
employees.
THE REMEDY
Having found that the Respondent has engaged in certain unfair
labor practices, we shall order it to cease and desist therefrom and
take affirmative action necessary to effectuate the policies of the Act.
We have found, as did the Trial Examiner, that the Respondent, in
violation of Section 8 (a) (2) and (1) of the Act, gave unlawful
assistance to Allied by recognizing and contracting with it and by
granting the former ordnance division employees preferential senior-
ity. Accordingly, we shall order the Respondent to withdraw and
withhold all recognition from Allied and to cease giving effect to -the
interim agreement of September 18, 1956, the contract of January 3,
1957, and any other agreements made pursuant thereto, until such
time as that labor organization may be certified by the Board as the
exclusive representative of employees in the Wheland Products Divi-
sion. Moreover, to dissipate the effects of the preferential seniority,
we shall also order the Respondent to abrogate such preferential
seniority rights. Except as so indicated, nothing herein shall, how-
7Indeed, if Allied were truly the bargaining representative of both groups in the unit,
as it purported to be, it was obligated to represent all employees in the unit equally
and without discrimination.
8 As previously indicated, Allied presented authorization cards from 206 of the 212 or
213 former ordnance division employees .
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ever, be construed to require the Respondent to vary or abandon any
of the terms and conditions of employment established under the
aforesaid agreements.
ORDER
Upon the entire record in the 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, The Wheland
Company, Chattanooga, Tennessee, its officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Assisting or supporting Local 176, Allied Industrial Workers
of America, AFL-CIO, or any other labor organization, except as
authorized by Section 8 (a) (3) of the Act.
(b) Recognizing Local 176, Allied Industrial Workers of America,
AFL-CIO, as the exclusive representative of the employees of the
Respondent in its Wheland Products Division, Signal Mountain Road
plant, unless and until said organization shall have been duly certified
by the Board as the representative of such employees.
(c) Giving effect to any agreements or arrangements with the
above-named union granting preferential seniority rights to former
ordnance division employees.
(d) Giving any effect to its collective-bargaining contracts with
Local 176, Allied Industrial Workers of America, AFL-CIO, dated
September 18, 1956, and January 3, 1957, or to any extensions, re-
newals, modifications, or supplements thereof, unless and until said
labor organization has been duly certified by the Board as the rep-
resentative of said employees of the Respondent. The Respondent,
however, shall not be required to vary or abandon the wages, hours,
and conditions of employment now in effect in its relationship with
said employees, or to prejudice the assertion by said employees of
any rights or privileges they may have acquired by reason of the
application of the aforesaid contract or contracts, except with respect
to the preferential seniority rights which we hereby order abrogated.
(e) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of their right to self-organ-
ization, to form, join, or assist any labor organization, to bargain col-
lectively through representatives of their own choosing, and to engage
in concerted activities for the purpose of collective 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 con-
dition 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 :
THE WHELAND COMPANY 821
(a) Withdraw and withhold all recognition from Local 176, Allied
Industrial Workers of America, AFL-CIO, as the representative
of the employees of the Respondent in the Wheland Products Division
for the purpose of dealing with the Respondent concerning griev-
ances, labor disputes, wages, rates of pay, hours of employment, or
other conditions of employment, unless and until said labor organ-
ization is duly certified as such representative by the Board.
(b) Abrogate the preferential seniority unlawfully granted to
former ordnance division employees by agreement or other arrange-
ment with Local 176, Allied Industrial Workers of America,
AFL-CIO.
(c) Post in its plants in Chattanooga, Tennessee, copies of the
notice attached hereto marked "Appendix." I Copies of said notice,
to be furnished by the Regional Director for the Tenth Region, shall,
after being duly signed by the Respondent's representative, be posted
by the Respondent immediately upon receipt thereof, and maintained
by it for sixty (60) consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that
said notices are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Tenth Region in writing,
within ten (10) days from the date of this Order, as to what steps
the Respondent has taken to comply herewith.
CHAIRMAN LEEDOM, dissenting :
The record, in my opinion, does not sustain the allegation of the
complaint.
There is no dispute as to the basic facts. The Trial Examiner
concluded that the Respondent, by recognizing and dealing with
Allied as the majority representative of a new unit created by con-
solidation of two previously separate operations, gave unlawful assist-
ance to Allied in violation of Section 8 (a) (1) and (2) of the Act.
Essentially, the Trial Examiner's theory to support this conclusion
is that the employees of 1 of the 2 operations, represented in 2 units
by the IAM and the Steelworkers prior to the consolidation, were
entitled to self-determination on the question of inclusion in the new
unit. However, the General Counsel made no attempt to prove that
such self-determination rights would survive the consolidation and,
indeed, virtually concedes the contrary. Moreover, the record facts
do not substantiate the Trial Examiner's theory. I would therefore
reject it.
The majority nevertheless agrees with the conclusion reached by
the Trial Examiner, on the theory that recognition and the contract
9In the event that this Order is enforced by a decree of a United States Court of Ap-
peals, 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."
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
occurred in the context of rival claims and for that reason ran afoul
of the Midwest Piping 10 doctrine, recently reaffirmed in the Novak
case ." To bring the instant case within that doctrine, the majority
must overcome the fact that neither the IAM nor the Steelworkers
evidenced their interest in the new unit created by the decision to
consolidate by specifically claiming to represent or by filing a petition
with the Board for such unit, either or both of which steps could have
been taken by them. This fact the majority attempts to overcome by
construing the Respondent's conduct as a recognition of at least the
IAM's claim to representation in the new unit. In my opinion, the
majority has failed in this attempt. Inference cannot supplant evi-
dence. The most that I can infer from all the facts in the record
concerning the Respondent's conduct towards the IAM and the Steel-
workers is that the Respondent-whose good faith in effecting the
consolidation is not questioned-knew that these 2 unions had some
interest in the new unit because of their interest in 1 of the 2 opera-
tions to be consolidated, but it did not know, and had no way of know-
ing, in the absence of recognition claims made upon it, that they
asserted majority interests in such unit. While it is true that initially
the Respondent stated that it would seek a Board election as a means
of determining the representative of the new unit, it was under no
obligation to use that method, absent a rival claim which would itself
raise a real question concerning representation in the unit. As I am
unable to conclude that a rival claim had been made in the new unit
such as would have required the Respondent to maintain a strictly
neutral position under our Midwest Piping doctrine, I would find that
the Respondent was free to and did recognize and deal with Allied
upon clear proof of its majority status in such unit."
The majority also finds that the Respondent's agreement to seniority
arrangements, under which former ordnance division employees
received greater seniority credit than former manufacturing division
employees, was in fact intended to give seniority preference to Allied's
members and was therefore unlawful assistance. I do not believe that
the General Counsel has made a prima facie case upon this allegation
of the complaint. Whatever the motivation of Allied may have been-
and there is no allegation that Allied violated Section 8 (b) (1) (A)
and 8 (b) (2) of the Act-for entering into such an agreement as to
seniority, it seems clear to me that the Respondent may have had a
legitimate motive for agreeing to cut down the seniority of former
manufacturing division employees coming into the Signal Mountain
Road plant. Yet the majority draws inferences from a number of
facts indicating that the Respondent could have intended to prefer
Allied's members, in order of reach the conclusion that it miurst have
'.Midwest Piping and Supply Company, Inc., 63 NLRB 1060.
ss Novak Logging Company, 119 NLRB 1573.
12 See SiZer Mill Company, 92 NLRB 1680, 1683.
THE WHELAND COMPANY 823
been so. As I see it, it is just as reasonable to infer that a legitimate
basis existed for the preferential seniority granted to former ordnance
,division employees over the former manufacturing division employees.
I would therefore find no merit in the General Counsel's exceptions
relating to preferential seniority.
For the foregoing reasons, I would dismiss the complaint in its
entirety.
MEMBER BEAN, dissenting in part :
While I agree with my colleagues in the majority that the record
contains substantial evidence to support a finding of unlawful assist-
ance through the seniority preferences given to former ordnance divi-
sion employees on the basis of their membership in Allied, I am in
disagreement with the majority as to the disposition of the principal
allegation of the complaint and join with Chairman Leedom in that
part of his dissenting opinion relating to this issue.
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 support Local 176, Allied Industrial
Workers of America, AFL-CIO, or any other labor organiza-
tion, except as authorized by Section 8 (a) (3) of the Act.
WE WILL NOT recognize Local 176, Allied Industrial Workers
of, America, AFL-CIO, as the exclusive representative of the
employees in our Wheland Products Division, Signal Mountain
Road plant, Chattanooga, Tennessee, for the purpose of dealing
with us concerning terms and conditions of employment, unless
and until said union is duly certified by the Board as the repre-
sentative of such employees.
WE WILL NOT give effect to any agreements or arrangements
With Local 176, Allied Industrial Workers of America, AFL-CIO,
granting preferential seniority rights to our former ordnance
division employees.
WE WILL NOT give effect to the collective-bargaining contracts
dated September 18, 1956, and January 3, 1957, between us and
Local 176, Allied Industrial Workers of America, AFL-CIO,
or to any extensions, renewals, modifications, or supplements
thereof, insofar as such agreements apply to the employees of
Wheland Products Division, unless and until the said union is
duly certified by the Board as the representative of said em-
ployees. The Respondent, however, shall not be required to vary
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or abandon the wages, hours, and conditions of employment now
in effect in our relationship with said employees, or to prejudice
the assertion by said employees of any rights or privileges they
may have acquired by reason of the application of the aforesaid
agreements, except with respect to the preferential seniority
rights which we here order abrogated.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the right to
self-organization, to form, join, or assist any labor organization,
to bargain collectively through representatives of their own choos-
ing, and to engage in concerted activities for the purpose of
collective 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 mem-
bership 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 Local
176, Allied Industrial Workers of America, AFL-CIO, as the
representative of our Wheland Products Division employees for
the purpose of dealing with us concerning grievances, labor dis-
putes, wages, rates of pay, hours of employment, or other condi-
tions of employment, unless and until said union is duly certified
as such representative by the Board.
WE WILL abrogate the preferential seniority unlawfully
granted to former ordnance division employees by agreement or
other arrangement with Local 176, Allied Industrial Workers of
America, AFL-CIO.
All our employees are free to become, remain, or refrain from becom-
ing or remaining, members of any labor organization, except to
the extent that such right is affected by an agreement, as authorized
in Section 8 (a) (3) of the Act.
THE WHELAND 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.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon charges filed by United Steelworkers of America, AFL-CIO, herein called
the Steelworkers , the General Counsel of the National Labor Relations Board,
herein called the Board , by the Regional Director for the Tenth Region ( Atlanta,
Georgia ), issued a complaint dated January 9, 1957 , against The Wheland Company,
Chattanooga , Tennessee , herein called the Respondent, alleging that the Respondent
had engaged in and was engaging in unfair labor practices within the meaning of
Section 8 ( a) (1) and ( 2) and Section 2 (6) and (7) of the National Labor Relations
THE WHELAND COMPANY , 825
Act, as amended, 61 Stat. 136, herein called the Act. Copies of the complaint and
the answer together with a notice of hearing were duly served upon the Respondent,
the Steelworkers, and the Party to the Contract.
With respect to the unfair labor practices the complaint alleged that the
Respondent engaged in conduct violative of Section 8 (a) (1) and (2) of the Act by:
Recognizing Allied Workers [Local 176, Allied Industrial Workers of
America, AFL-CIO, herein called Allied] as the collective bargaining repre-
sentative of all production and maintenance employees at the Respondent's
Products Division, Signal Mountain Road Plant.
Entering into a written bargaining agreement with Allied Workers relative
to the employees described above.
Providing in the agreement that employees employed at the Respondent's
Broad Street Plant moved to Signal Mountain will not replace employees
"working in that plant."
On January 21, 1957, the Respondent filed an answer in which it admitted the
jurisdiction of the Board and denied that it had engaged in any of the alleged unfair
labor practices.
Pursuant to notice a hearing was held before Louis Plost, the duly designated
Trial Examiner, at Chattanooga, Tennessee, February 27, 1957. The General
Counsel, the Respondent, the Charging Party, and the Party to the Contract were
represented by counsel, who are hereinafter referred to in the names of their prin-
cipals. The parties participated in the hearing, were afforded full opportunity to
be heard, to examine and cross-examine witnesses, to introduce evidence bearing on
the issues, to argue orally on the record, and to file briefs, proposed findings of
fact, and conclusions of law with the Trial Examiner.
At the conclusion of the evidence in the General Counsel's case-in-chief and
again at the close of the hearing the Respondent moved to dismiss the complaint.
The Trial Examiner reserved ruling on the motions. The motions are disposed of
by the ultimate finding herein.
The Trial Examiner granted an unopposed motion by the General Counsel to
conform the pleadings to the proof with respect to spellings, names, dates, and
similar matters not substantive.
The parties waived oral argument. Permission was granted to file briefs, findings
of fact, and/or conclusions of law, with the Trial Examiner. Briefs have been
received from the Respondent and the General Counsel.'
Upon the entire record in the case and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Wheland Company is a Tennessee corporation having its principal place of
business in Chattanooga, Tennessee, where it is engaged in the manufacture of
castings, oilfield and sawmill equipment, and materials for the United States Govern-
ment. During the past year (which is representative) the Respondent sold and
shipped various products valued at more than $1,000,000, directly to customers
located outside the State of Tennessee.
H. THE ORGANIZATIONS INVOLVED
United Steelworkers of America , AFL-CIO ( the Charging Party ) and Local 176,
Allied Industrial Workers of America, AFL-CIO (Party to the Contract ), respec-
tively called Steelworkers and Allied, are labor organizations within the meaning of
Section 2 (5) of the Act and admit employees of the Respondent to membership.
III. THE UNFAIR LABOR PRACTICES
The Respondent and the General Counsel stipulated in effect that until August 31,
1956, the Respondent operated at two locations in Chattanooga, Tennessee. One
location, known as the Broad Street plant (herein called Broad Street) included a
foundry division and a manufacturing division. At the second location, known as
the Signal Mountain Road plant (herein called Signal Mountain ), the Respondent
exclusively manufactured cannons, under Government contract.
" This report was delayed because the transcript was not received until April 12, 1957,
due to the illness of Mr. Gary Wight, the reporter.
826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At Broad Street the production and maintenance employees of the manufacturing
division were represented under a collective-bargaining contract by the Interna-
tional Association of Machinists, AFL-CIO (herein called IAM) except for a
residual unit which was represented by the United Steelworkers of America,
AFL-CIO, which also represented the foundry employees in the Broad Street plant.
W. B. Frazier, representative of the Steelworkers, testified that the Steelworkers
represented from 600 to 900 employees at the Broad Street foundry division,
"depending on the extent of operations," and 20 to 30 employees in the manufac-
turing division at Broad Street, there being but 1 Steelworkers local. There were
also 133 employees at Broad Street represented by the IAM.
The Steelworkers' contract with the Respondent covering the residual production
and maintenance employees in the Broad Street production department expired
November 19, 1956, subject to reopening annually on wage negotiations. On
September 4, 1956, the Steelworkers gave notice to terminate the agreement as to
wages and its desire to negotiate new wage rates.
At Signal Mountain the Respondent and Local 176, Allied Industrial Workers of
America, AFL-CIO (herein called Allied) were under contract covering all produc-
tion and maintenance employees in that division. This contract expired September
14, 1956.
The General Counsel and the Respondent further stipulated that as of August 31,
1956, the foundry division and the manufacturing division at Broad Street were
operating "about normal capacity," but that at Signal Mountain operations were
"roughly one half normal capacity," the plant "finishing up" a Government cannon
contract.
Under date of September 5, 1956, the Respondent sent all its manufacturing
division and Signal Mountain employees the following letter:
To All Employees of the Manufacturing and Ordnance Divisions:
I am pleased to announce that the Board of Directors of our company at a
special meeting held on August 31, decided that the company would continue
to maintain all of its operations in the Chattanooga area rather than moving a
portion of them to some other city as has been seriously considered for some
months.
The contemplated plans for the expansion of the Foundry makes it necessary
that the Foundry use all of the South Broad Street property.
The change in the demand for our products and the pressures of general
competitive conditions have made it necessary that the company re-examine
its Manufacturing and Ordnance operations. As they are presently operating,
these divisions will not be able to meet competition or provide steady work
to all employees.
The Board at their meeting decided to abolish the Manufacturing and Ord-
nance divisions and to create a new division which will be known as the
Wheland Products Division. The new division will occupy the Signal Mountain
plant. This move will begin to take place immediately and steps are being
made to put the new division into operation at once. This involves a great
many changes in methods, techniques, and operation and will take some time
to complete. I believe, however, that it does clearly provide the best oppor-
tunity for us to continue to provide steady work to all present employees of
the Ordnance and Manufacturing divisions, and to possibly recall some laid-off
employees.
I am sure that you will be pleased to know that there are no further plans
to move part of the company's jobs to some other location. There will neces-
sarily be a certain amount of confusion while these changes are taking place,
but with your full cooperation and assistance we believe you as well as the
company will be benefited.
As further developments occur, you will be kept advised.
Sincerely yours,
(Signed) G. P. Street,
GORDON P. STREET, President.
James E. Black, the Respondent's personnel director, testified that on September 5,
1956, he called a meeting of the committees representing IAM and Steelworkers
at the Broad Street plant. He testified:
The purpose for-one of the basic purposes for having the meeting was to
give these people this letter in advance of it being received by the employees
at home in the mail.
THE WHELAND COMPANY 827
Black further testified that the above letter was distributed to those present and was
discussed; and that one of those present was George Rector, the president of the
Steelworkers local, who arrived after the meeting began.
Black's account of the meeting was corroborated by Jack D. Raper, the Respond-
ent's assistant personnel director.
George P. Rector, the president of the Steelworkers local, testified that: He at-
tended the meeting called by Black at Broad Street; he came late and did not receive
a copy of the letter above referred to at the meeting; and that Black announced the
Respondent 's plans, telling the assemblage that:
It's going to start around this weekend, a-consolidating Machine Shop and
the gun plant on Signal Mountain Road, and told us that-says, "I don't know
exactly how long it will take to complete this move; it'll be determined by how
quick the Government moves out some of their machinery over there," and
said, "As we move the machinery from the Machine Shop to the gun plant,
with-the men that are operating that machine will also move with the ma-
chinery; and up until we complete the move, the men that are under the IAM
contract will remain under the contract that they are under now until we have
completed the move. Up until we complete the move, we will call in the Board
and have an election to determine what Local will represent you fellows, .. .
Rector put the date of the meeting as September 11 or 12. Inasmuch as Raper
fixed the date of the meeting from notes taken at the time and upon all the evidence
considered as a whole the Trial Examiner is persuaded that Rector is in error as
to the date and therefore finds that at a meeting held September 5, 1956, the
Respondent disclosed its plan of consolidation of certain divisions of its operations
to the representatives of the unions representing its employees at Broad Street.
John P. Gaither, a member of the Respondent's board of directors and one of
the attorneys of record representing it at the hearing, testified that: Following the
notice given by Allied that it desired to open its contract with the Respondent for
wage and other negotiations, a series of meetings had been held between the
Respondent and Allied; on September 4, 1956, the Respondent notified Allied
that it had been determined "to consolidate the old Ordnance Division [Signal
Mountain cannon plant] and Manufacturing Division, forming an entirely new
division"; thereafter at a meeting with Allied:
On September 10th we told them that we couldn't negotiate with them as the
representative of the new Products Division because they-the employees in
that Division-had not selected a bargaining representative.
According to Gaither, at this meeting Allied advanced the theory that the con-
solidation was merely an expanded unit of those employees Allied already repre-
sented at Signal Mountain. A meeting for further discussion was set for
September 12.
Gaither further testified that on September 11, wishing to notify the Steel-
workers of the claim advanced by Allied and having been told by the Steelworkers'
local office that W. B. Frazier, its representative, was at a certain restaurant at
lunch, he went to the restaurant, located Frazier who was with R. E. Starnes and
Mr. Goddard, also Steelworkers representatives. Gaither testified he told them:
that we feared that if there was a strike [by Allied], that they might
picket the Foundry, that we did not feel that it was any concern of the-of
the Foundry Division Union and hoped that they would pay no attention to
pickets if they appeared there. The reason we feared the strike, I told them,
was that the next morning I was going to tell them that we would not recognize
them as an expanded unit of the Ordnance Division.
I-I also told them that we hoped that some union would petition for an
election, that we felt that the Company was in the middle on this thing; it
had had three unions representing three groups of employees, all of whom
were now completely integrated into a new division, that we didn't know
what union the employees in that new division would select as their represent-
ative, and that it seemed to me that the best solution would be for either,
first, the three Unions to get together, which seemed impossible, or second,
for some Union to petition for an election; that I had investigated the right
of the Company to petition for an election under these circumstances and was
in some doubt as to whether we had that authority.
Frazier told Gaither that the union officials were leaving the next day for the
CIO convention, and could not do anything until their return.
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Frazier, with respect to the above-related restaurant conversation, testified that
Gaither told him of the formation of the Wheland Products Company and that
Gaither stated that:
They were not going to sign an agreement with the Allied Industrial Workers
until such time as an election had been held to determine the bargaining
agency, and that-Mr. Gaither said, "We are meeting with the Allied Industrial
Workers tomorrow, and we are going to notify them to that effect."
He asked us what we thought about an election. We told him that we
didn't have time-hadn't had time-to think it over; it was news to us; that-
Q. What was news to you?-A. That the Company had consolidated the
Ord- the Manufacturing Division and the Ordnance Division and that the
question had arisen as to the bargaining agency for this new division of the
Company.
Frazier told Gaither he would be at the convention, where he would consult with
his director on the matter.
Frazier's testimony was corroborated by R. E. Starnes, field representative of
the Steelworkers present at the restaurant conversation.
Gaither testified that on September 12, he again met with the representatives of
Allied whom he told that "we would not recognize them as an expanded unit nor
would we recognize them as the representatives of the expanded unit"; that Allied
then asked:
If we present you with brand-new cards signed up by a clear majority of the
people in the new Products Division, will you then negotiate with us?
Gaither testified that after a recess he agreed to check authorization cards of
employees of the new unit which consisted of men already at Signal Mountain
and men to be moved from Broad Street who were represented there by the Steel-
workers. Gaither testified:
If-if they presented us with a clear majority of-of cards for all people
who would ultimately be there,-
TRIAL EXAMINER: Who would ultimately be there.
The WITNESS: -we could continue to negotiate on receipt and verification
of such cards.
TRIAL EXAMINER: And it made no difference, then, to you or to them
whether the people had already arrived and were working at Signal Mountain
or whether they were merely tagged to go to Signal Mountain?
The WITNESS: That's correct except for one thing:-
TRIAL EXAMINER: Yes?
The WITNESS: -we did say that "We-we will-this-the contract that we
negotiate will be applicable only to those people as they come into this plant,-"
However, Gaither testified, at the time cards were presented to the Respondent by
Allied to prove their majority in the "rew Products Division" all bore signatures
of employees actualy working at Signal Mountain. According to Gaither "They
[Allied] did not attempt, as far as I know, to get any cards except in that plant . .
because having gotten those, they had a clear majority of all who would ultimately
be there." [Emphasis supplied.]
On the same day, September 12, and on the day following Allied presented the
Respondent with 206 cards signed by employees at Signal Mountain.
Gaither testified that at the time the cards were presented operations at Signal
Mountain were curtailed to about 50 percent of normal; 2 that at the time Allied
presented its cards for recognition there were 212 or 213 production and maintenance
employees working in the Signal Mountain plant and that at the time "approximately
200 employees [were] on laid off "status" at Signal Mountain. The Signal Moun-
tain employees had been represented by Allied for 6 years.
Gaither also testified that few if any employees had been physically transferred
from Broad Street to Signal Mountain at the time the cards were submitted. In
answer to the General Counsel's question as to such transfers having been made
before the cards were submitted, Gaither answered:
I-if-I believe that-no, I don't know; I feel-I think they were, but I don't
know positively. The cards were submitted on the 12th, and I can't say for sure
whether any were over there on the 12th, but I believe there were.
2 This was also stipulated as herein found.
THE WHELAND COMPANY 829
Seth C. Smith, assistant personnel director for the Respondent, testified that he
received the signed authorization cards from Allied on September 12 and 13, that
he compared the signatures on the cards with endorsement signatures on paychecks
of the same individuals, and that under instructions from his superiors he segregated
10 percent of the cards at random and then questioned the signer of each of such
card regarding the circumstances under which he signed, reporting thereafter to the
personnel manager. Smith testified that in each case he asked: 3
-"Were you coerced in any way in signing this card?" and his answer in each
case was, "No"; second, "Were you promised anything to sign this card in the
way of benefits?" and his answer was, "No"; then, "Were you-is it your desire
to be represented by the Allied Industrial Workers in the Products Division?"
and that answer was, "Yes."
Smith further testified that: At the time he made the check some "300-35" em-
ployees were "covered by the Products division," this figure including those at Broad
Street yet to be transferred; at the time of the hearing 300 were employed at Signal
Mountain; and "four or five" employees in laid-off status at Signal Mountain at the
time of the card check have since been recalled.
Gaither testified that on September 18, 1956, the Respondent signed a collective-
bargaining contract with Allied covering the Signal Mountain employees for the
Products Division, but that matters relating to "seniority, job classification, wages
and fringe benefits" continued as subjects for final negotiation which were not com-
pleted until December 24, 1956.
Both of the Steelworkers representatives, Frazier and Starnes, testified they had
no knowledge of the contemplated changes at Broad Street and Signal Mountain
before Gaither talked with them at the restaurant. Starnes testified that he did not
learn of the contract between Allied and the Respondent until his return from the
convention on September 26, he then called James E. Black, the Respondent's per-
sonnel director with whom he held the following conversation:
I told-told him that we had heard that the Wheland Company had signed a
contract with the Allied Industrial Workers while we was gone, and I wanted
to know from him whether that was true or not or just what happened, and he
said, "Yes, that's true." He says, "I don't know whether we did right or wrong,
but we did sign a contract with them," and that "We asked them to furnish us
with cards showing that they represented the people," and he said that "They
furnished us with 206 cards, of which we believe to be valid cards and signa-
tures of our employees," and he said, "Based on that, we signed a contract with
the Allied Industrial Workers."
An interesting feature of the evidence in the instant matter is the absence of any
serious contradiction. With the exception of the one error as to a date the Trial
Examiner found in Rector's testimony, the Trial Examiner finds all the testimony
offered to be virtually undisputed.
Resume
As found herein, the Ordnance Division (Signal Mountain) employees were
represented by Allied; the employees of the Manufacturing Division (Broad Street)
were represented by Steelworkers and IAM.
On September 4, 1956, the Respondent notified Allied that it had determined to
consolidate the ordnance and manufacturing divisions into "an entirely new division."
On September 5 the Respondent notified the employees of the manufacturing and
ordnance divisions of its contemplated plan to create the new Wheland Products
Division, to be housed at Signal Mountain.
On September 10 the Respondent told Allied it would not recognize it as the rep-
resentative of the employees of the new Products Division, and rejected Allied's con-
tention that any new employees moved from Broad Street to Signal Mountain were
merely an accretion to the existing unit represented by Allied.
On September 11 the Respondent notified the Steelworkers representative of the
claim made by Allied, stated it feared a strike, said it "hoped some union would peti-
tion for an election," and assured the Steelworkers representatives that it would recog-
nize no union as representative of the new unit without an election.
On September 12 the Respondent again refused to recognize Allied as the rep-
resentative of Wheland Products Division but agreed to deal with Allied for the new
unit if Allied presented "brand new cards signed by a majority of the people in the
new division."
8 It is not alleged that this poll of employees was violative of the Act.
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As the new division had not yet been formed and the employees from Broad Street
not yet moved to Signal Mountain , it was agreed that authorization cards could be
taken from employees already working at Signal Mountain and from employees to be
transferred from Broad Street.
On the same day and the following day (September 12 and 13), Allied presented
to the Respondent 206 authorization cards. All these cards were signed by em-
ployees working at Signal Mountain.
Allied had represented the employees at Signal Mountain for some 6 years.
No cards were presented from any employees at Broad Street.
At the time there were "212 or 213" production and maintenance employees at
Signal Mountain ; there were also "approximately 200 employees on laid -off status"
in that plant.
On September 18, the Respondent entered into a contract with Allied for the
Wheland Products Division , covering employees then at Signal Mountain and
all those who were slated to be transferred from Broad Street. The contract was
not completed in all details until December 24.
The Respondent gave no notice to the Steelworkers or the IAM.
Conclusion
The Trial Examiner is convinced that this record does not show that the Respondent,
in setting up the Wheland Products Division to be staffed by employees at the
time represented by three various unions, was ab initio seeking a way to bypass
any of these unions; however, it seems clear to the Trial Examiner that having
once embarked on its new enterprise the Respondent quickly thought itself in
serious difficulty with Allied . This is clearly evidenced by the Respondent's
request to the representatives of Steelworkers that in the event of a strike by Allied,
the Steelworkers ignore any picket line . One must not lose sight of the fact that
in the discussion in which this request was made, the status of employees not yet
in a unit comprising a new organization itself hardly, or not yet, in existence,
was being discussed.
On all the circumstances herein , including the fear of a strike by Allied, it seems
to the Trial Examiner that by agreeing to recognize Allied on a check of authoriza-
tion cards, following statements that no recognition would be afforded without an
election ; that by first stating that such authorization cards should be from both
employees then working at Signal Mountain (and presumably represented by
Allied ) and employees at Broad Street who would be transferred to Signal Mountain
in due course, and then accepting cards signed exclusively by those then working
at the Signal Mountain location, treated as a new unit of a new enterprise ( ignoring
those in laid -off status ), it being clear to the Respondent that those being counted
had been members of Allied through a 6-year period, the Respondent not only
cleared the road for Allied's recognition but made for easy traveling . Likewise,
when the Respondent announced that employees to be transferred into the unit
from Broad Street would come under the contract to be negotiated with Allied
"as they came into the plant," the Respondent deprived these employees, so
blanketed into Allied , of their right to choose a bargaining representative and
thereby contributed support to Allied and encouraged membership therein.
By entering into a contract with Allied, clearly before the new manufacturing
organization had really begun to function and before it had its full complement of
designated employees , the Respondent closed out the contractual rights of men
slated for a new enterprise and as above found put them under the control of a
union clearly favored by the Respondent in the method used to show its right of
representation.
The Court of Appeals for the Sixth Circuit has held that "an employer cannot,
by dealing with a union , constitute it the lawful representative of employees who
have not chosen it to represent them." 4
It is axiomatic that, the purpose of the Act being to insure certain rights to
employees in relationship with their employer, the chief benefit guaranteed is the
right of employees to bargain through a union of their own choosing . In protecting
this basic right , the Board has held that a group of employees , previously outside
a bargaining unit in which they might appropriately be included , should not be
placed in a bargaining unit where they would be a minority without being given
the opportunity to express their preference in an election.5
4 Dickey V. N. L. R. B, 217 F 2d 652 (C. A 6).
5 The Zia Company , 108 NLRB 1134.
THE WHELAND COMPANY 831
On all the evidence considered as a whole, the Trial Examiner is persuaded that
by recognizing Allied on the card check as herein found and by thereafter entering
into a contract with Allied as herein found, the Respondent rendered support to
Allied contrary to the intent of Section 8 (a) (2) of the Act.
Concluding Findings
On the entire record the Trial Examiner finds that by its conduct with respect to
the card check, its recognition of, and its contract with , Allied, all as herein above
found, the Respondent had engaged in conduct violative of Section 8 (a) (1) and
( 2) and Section 2 (6) and (7) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in section III, above, occurring in
connection with the operations of the 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 burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the Respondent has engaged in and is engaging in
certain unfair labor practices affecting commerce, it shall be recommended that
it cease and desist therefrom and take certain affirmative action in order to effectuate
the purposes of the Act.
Having found that by contributing support to Allied by agreeing to, and recognizing
Allied by reason of a card check conducted in such a way as to insure Allied showing
a majority of employees within a contemplated unit and by entering into a collective-
bargaining agreement with Allied whereby certain prospective members of the
said unit were to become subject to its provisions "as they came into the plant,"
they having already been designated as being among those who ultimately would
be selected to work in said unit so covered by the contract, and in order to insure
to such employees the full and free exercise of their rights to unions of their own
choice as guaranteed in Section 7 of the Act, the Trial Examiner will recommend
that the Respondent withdraw all recognition from Allied as the representative of
all of the employees of the Respondent in its Wheland Products Division for the
purposes of dealing with the Respondent concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or other conditions of employment
until such time as it may be certified by the Board as the proper representative of
said employees. The Trial Examiner further recommends that the Respondent
cease and desist from giving effect to the contract entered into by the Respondent
and Allied, dated September 18, 1956, however, the Trial Examiner further recom-
mends that nothing herein shall be deemed to require the Respondent to vary any
of the wages, hours, seniority, or other substantial features of its relations with its
employees now established under the aforesaid agreement.
Upon the foregoing findings of fact and upon the entire record in the case, the
Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. United Steelworkers of America, AFL-CIO (Charging Party) and Local
176, Allied Industrial Workers of America, AFL-CIO (Party to the Contract)
are labor organizations within the meaning of the Act.
2. The Wheland Company is engaged in commerce within the meaning of the Act.
3. By engaging in the conduct as set out in section III, above, with respect to the
recognition of Local 176, Allied Industrial Workers of America, AFL-CIO, and
entering into a contract with said organization, the Respondent has rendered unlawful
assistance to said Local 176, Allied Industrial Workers of America, AFL-CIO, in
yiolation of Section 8 (a) (2) of the Act.
4. The foregoing conduct constitutes unfair labor practices which are unfair
labor practices affecting commerce within the meaning of Section 2 (6) and (7)
of the Act.
[Recommendations omitted from publication.]