Traub's Market, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1973

205 N.L.R.B. 787 (N.L.R.B. 1973)

TRAUB'S MARKET 787
Traub's Market, Inc. and Local 1361 , Retail Clerks
International Association , AFL-CIO and Traub's
Market Independent Employees Union Party to the
Contract.
Traub's Market, Inc. and Local 1361 , Retail Clerks
International Association , AFL-CIO, Petitioner.
Cases 4-CA-6133 and 4-RC-9757
August 27, 1973
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On April 19, 1973, Administrative Law Judge Max
Rosenberg issued the attached Decision in this pro-
ceeding. Thereafter, the General Counsel and the Re-
tail Clerks each filed exceptions and supporting briefs,
and Respondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The Unfair Labor Practice Case
The Administrative Law Judge concluded in es-
sence that because Respondent Company had agreed
with the incumbent Independent Union on the sub-
stance of a new collective-bargaining agreement be-
fore the then current agreement had expired,
Respondent did not assist the Independent in viola-
tion of Section 8(a)(2) of the Act when, subsequent to
the filing of a representation petition by the Retail
Clerks and the scheduling of a hearing on the petition
by the Board in Case 4-RC-9757, Respondent execu-
ted a collective-bargaining agreement with the incum-
bent Independent Union. We do not adopt this
conclusion inasmuch as it is clearly inconsistent with
the Board's existing decisions.
Respondent and the Independent Union were par-
ties to a collective-bargaining agreement due to expire
on April 23, 1972. Bargaining for a new contract com-
menced in January and continued at least until April
6 when, the Administrative Law Judge found, agree-
ment was reached on the substance of a new contract,
but which was not then executed.
In the first week of April the Retail Clerks began an
organizational campaign among Respondent's em-
ployees and made contact with a substantial number
of the employees by means of house calls, leaflet dis-
tribution, and small group meetings. Indeed, George
Koma, a business agent of the Retail Clerks, testified
that on one occasion the Retail Clerks agents ad-
dressed the employees at a meeting of the Indepen-
dent Union. On April 21, 2 days prior to the
expiration of the contract, the Retail Clerks advised
Respondent by telegram that the Retail Clerks repre-
sented a substantial portion of the employees and that
the Independent no longer represented a majority of
the employees; it also advised Respondent to refrain
from bargaining with the Independent. On April 24,
1 day after the expiration of the contract, the Retail
Clerks filed a petition with the Board, and on May 4
the Regional Director of the Board notified all parties
that a hearing had been scheduled for May 11 on the
representation petition. Nevertheless, on May 9 or 10,
Respondent executed a new collective-bargaining
agreement with the Independent.'
We think it quite clear that Respondent's execution
of the May 10 contract when it was presented with the
competing claim of the Retail Clerks evidenced by the
April 21 telegram and the April 24 petition was an
unlawful abnegation of the strict neutrality required
of it by the Board's Midwest Piping doctrine 2 There
is no doubt that a real question concerning represen-
tation existed at the time Respondent executed the
contract. In this regard we note first that the Retail
Clerks' petition was filed after the prior contract had
expired at a time when no subsequent agreement had
yet been executed by Respondent and the Indepen-
dent Union, and the petition was therefore timely.
Deluxe Metal Furniture Company, 121 NLRB 995.
Secondly, the sole requirement necessary to raise a
question concerning representation within the mean-
ing of the Midwest Piping doctrine, as modified by the
Board, is that the claim of the rival union must not be
clearly unsupportable and lacking in substance.
Playskool, Inc., 195 NLRB No. 89. That the Retail
Clerks claim met the Midwest Piping criteria is shown
by the fact that at the time the contract was executed
there was on file with the Board a petition supported
by a showing of interest. Thereafter, following a rep-
resentation hearing, the Regional Director adminis-
tratively found that the showing of interest of the
Retail Clerks was sufficient to justify the holding of
an election, which administrative determination is not
subject to direct or collateral attack. On this basis we
conclude, in the absence of evidence to the contrary,
that a real question concerning representation did ex-
The agreement contained a union-security clause.
z Midwest Piping and Supply Co, 63 NLRB 1060
205 NLRB No. 124
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1st at the time Respondent executed the contract with
the Independent Union on May 10. Kona Surf Hotel,
201 NLRB No. 1.'
Such being the case, we find that Respondent has
rendered unlawful assistance and support to the Inde-
pendent Union by signing a collective-bargaining
agreement with it at a time when a real question con-
cerning representation existed, in violation of Section
8(a)(2) and (1) of the Act, and we shall issue our usual
order to remedy this violation.
CONCLUSIONS OF LAW
1. Traub' s Market , Inc., is an employer engaged in
commerce within the meaning of Section 2 (6) and (7)
of the Act.
2. Traub' s Market Independent Employees Union
and Local 1361 , Retail Clerks International Associa-
tion , AFL-CIO, are labor organizations within the
meaning of Section 2 (5) of the Act.
3. By executing , maintaining , and giving effect to
a collective-bargaining agreement containing a union-
security clause , at a time when a question concerning
the representation of its employees existed , Respon-
dent has rendered and is rendering unlawful assis-
tance and support to Traub 's Market Independent
Employees Union , and has interfered with , coerced,
restrained , and is interfering with , coercing, and re-
straining, its employees in the exercise of Section 7
rights in violation of Section 8(a)(1) and (2) of the Act.
4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
THE REMEDY
Having found the unfair labor practices set forth
above, in order to dissipate the effect of Respondent's
unfair labor practices, we shall order Respondent to
withdraw and withhold all recognition from Traub's
Market Independent Employees Union and to cease
giving effect to the aforementioned agreement, or to
any renewal, modification, or extension thereof, un-
less and until the Independent Union shall have been
certified by the Board as the exclusive representative
of the employees in question. We shall also order
Respondent to reimburse all present and former em-
ployees for all initiation fees, dues, or other moneys
paid or withheld from employees' wages pursuant to
7 We find inappropriate the Administrative Law Judge's citation of N L R
B v Swift and Company, 294 F 2d 285 (C A 3), because we have previously
noted our respectful disagreement with the general position on this issue of
that and other courts of appeals Moreover , in Suburban Transit Corp, 203
NLRB No 69, we adopted without change the Decision of another Adminsi-
trative Law Judge which set forth in full reasons for declining in particular
to follow the Swift decision
the unlawful union-security agreement,4 or any exten-
sions, renewals, modifications, or supplements there-
of, or any superseding agreement.
The Representation Case
Following the June 30, 1972, board-conducted elec-
tion in which the Retail Clerks received 46 and the
Independent Union received 78 of the 126 valid votes
cast, the Retail Clerks filed two objections to conduct
affecting the outcome of the election, one of which
was later withdrawn. On January 19, 1973, the Re-
gional Director for Region 4 issued his Supplemental
Decision in which he recommended that the remain-
ing objection be consolidated with the unfair labor
practice case herein.
Essentially, by its objection, the Retail Clerks main-
tain that Respondent interfered with the election by
unlawfully assisting and supporting Traub's Market
Independent Employees Union.
Since we have found that Respondent violated Sec-
tion 8(a)(1) and (2) of the Act by the conduct set forth
above, we further find that such conduct interfered
with the election, and we shall order that the election
be set aside and that a new election be directed.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that Respondent, Traub's
Market, Inc., Allentown, Pennsylvania, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Assisting or contributing support to the Traub's
Market Independent Employees Union, by recogniz-
ing or contracting with such labor organization as the
exclusive representative of any of its employees for
the purpose of collective-bargaining at a time when
there exists a real question concerning representation.
(b) Giving effect to, performing, or in any way en-
forcing the collective-bargaining agreement executed
with the Independent Union on May 10, 1972, cover-
ing its employees, or to any modification, extension,
renewal, or supplement thereto, or to any checkoff
authorization cards executed pursuant to said agree-
ment, unless and until the Independent Union has
been certified by the National Labor Relations Board
as the exclusive bargaining representative of such em-
ployees; provided, however, that nothing herein shall
require Respondent to vary or abandon any wage,
hour, seniority, or other substantive feature of its rela-
4 Interest at the rate of 6 percent per annum shall be added to such
initiation fees, dues , or other moneys so paid or withheld, to be computed
in the manner set forth in Seafarers International Union of North America,
Great Lakes District, AFL-CIO, 138 NLRB 1142, fn 3
TRAUB'S MARKET 789
tions with said employees which have been estab-
lished in the performance of any such agreement or to
prejudice the assertion by such employees of any
rights they may have thereunder.
(c) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of the right to self-organization, to form labor organi-
zations, to join or assist Local 1361, Retail Clerks
International Association, AFL-CIO, or any other
labor organization, to bargain collectively through
representatives of their own choosing, and to engage
in other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection as
guaranteed in Section 7 of the Act, or to refrain from
any and all such activities, except to the extent that
such rights 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 Report-
ing and Disclosure Act of 1959.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Withdraw and withhold all recognition from
Traub's Market Independent Employees Union as the
representative of its employees for the purpose of col-
lective bargaining unless and until the said labor orga-
nization has been duly certified by the National
Labor Relations Board as the exclusive representative
of such employees.
(b) Reimburse all present and former employees
for all initiation fees, dues, and other moneys, if any,
paid by or withheld from them pursuant to the terms
of the aforesaid collective-bargaining agreement exe-
cuted on May 10, 1972, or pursuant to any union
checkoff authorizations executed before the date of
compliance with the Order, in the manner provided in
"The Remedy" section of this Decision.
(c) Post at its premises in Allentown, Pennsylvania,
copies of the attached notice marked "Appendix." 5
Copies of said notice, on forms provided by the Re-
gional Director for Region 4, after being duly signed
by Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices
to its 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.
(d) Notify the Regional Director for Region 4, in
5 In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
writing, within 20 days from the date of this Order,
what steps the Respondent Employer has taken to
comply herein.
IT IS FURTHER ORDERED that the first election in Case
4-RC-9757 be, and it hereby is, set aside and that a
second election be conducted pursuant to the direc-
tion below.
[Direction of Election and Excelsior footnote omit-
ted from publication.]
CHAIRMAN MILLER, concurring:
I concur in the result, but wish to note that I might
well have been inclined to have here applied the
rationale of the Third Circuit's decision in N. L. R. B. v.
Swift & Company, 294 F.2d 285, had we not since
issued our decision in Telautograph Corporation, 199
NLRB No. 117.
Prior to our decision in Telautograph we had some-
times been accused-and perhaps rightly accused-of
a "damned if you do, damned if you don't" approach
to employer conduct in situations where an employer
had been dealing with an incumbent union and then,
during negotiations, was confronted with conflicting
recognitional claims from the incumbent and from a
union which had recently appeared on the scene. In
the Swift case, the court noted (286):
In opposing enforcement, respondent con-
tends that it cannot be found guilty of an unfair
labor practice for executing a collective-bargain-
ing agreement with a certified union, as the
brotherhood was, since refusal to do so would
itself have constituted an unfair labor practice
under the Act.
In Telautograph, in my view, we laid that matter to
rest, and made clear that for all purposes, an election
petition-"supported by an adequate showing of in-
terest . . . raised a question concerning representa-
tion." We went on to say that when such a petition is
filed, any subsequent 8(a)(5) charge based on an em-
ployer refusal to continue negotiations with the in-
cumbent should "be promptly dismissed as
nonmeritorious unless, of course, the charge contains
allegations that the Respondent has committed some
act (other than its mere refusal to bargain) which may
be a proper basis for finding a violation of our Act."
That holding, of course, was consistent with our earli-
er decision in Shea Chemical Corporation, 121 NLRB
1027.
Thus it seems to me that an employer can no longer
claim that he is caught on the horns of a dilemma
when faced with a timely filed and adequately sup-
ported election petition at a time when he is in the
process of negotiating with an incumbent. His privi-
lege-as set forth in Telautograph-and his duty-as
set forth in Shea Chemical-is now clear and unmis-
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
takable. He may-and must-discontinue negotiat-
ing until the question concerning representation is
resolved through our orderly election processes. He
need fear no harassment through any 8(a)(5) proceed-
ing, nor will prompt action on the election petition be
delayed by any such charges, because we have now
made clear that our Regional Offices should promptly
dismiss, as unmeritorious, any such charges and pro-
ceed promptly to process the election petition.
The decision in this case, and others like it, merely
completes the circle. We here hold-and correctly, I
think-that the employer, now clearly free from any
duty to negotiate once a timely and adequately sup-
ported election petition is filed, must honor his em-
ployees' free choice options, and may not lawfully
foreclose their effective exercise by signing a binding
contract granting exclusive recognition to one of the
two competing labor organizations.
I cannot conceive that the courts of appeal would
wish to disrupt what I firmly believe now to be a
clearly defined, sound, and even-handed administra-
tion of this Act. For these reasons I concur fully in the
result reached here by my colleagues.
bargain collectively through representatives of
their own choosing, to engage in concerted activi-
ties for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from
engaging in any or all such activities, except to
the extent that such right may be affected by an
agreement requiring membership in a labor orga-
nization as a condition of employment as author-
ized in Section 8(a)(3) of the Act, as modified by
the Labor-Management Reporting and Disclo-
sure Act of 1959.
WE WILL withdraw and withhold all recogni-
tion from Traub's Market Independent Employ-
ees Union as the collective-bargaining
representative of our employees unless and until
said labor organization has been certified as such
by the National Labor Relations Board.
WE WILL reimburse all present and former em-
ployees for any initiation fees, dues, or other
moneys paid or withheld from our employees
wages pursuant to the aforesaid agreement with
said Independent Union or pursuant to any
agreement superseding it.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT assist or contribute support to
Traub's Market Independent Employees Union
by recognizing or contracting with such labor
organization as the exclusive representative of
our employees for the purpose of collective bar-
gaining, at a time when there exists a real ques-
tion concerning representation.
WE WILL NOT give effect to our May 10, 1972,
agreement with Traub's Market Independent
Employees Union covering our employees, or to
any renewal, extension, modification, or supple-
ment thereof, unless and until said labor organi-
zation has been duly certified by the National
Labor Relations Board as the exclusive represen-
tative of such employees, but nothing herein shall
be construed to require that we vary or abandon
any existing term or condition of employment.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of their rights to self-organization, to
form labor organizations, to join or assist Local
1361, Retail Clerks International Association,
AFL-CIO, or any other labor organization, to
TRAUB'S MARKET, INC
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced , or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office , 600 Arch Street, Philadelphia, Penn-
sylvania 19106, Telephone 215-597-7601.
DECISION
STATEMENT OF THE CASE
MAX ROSENBERG, Administrative Law Judge: With all par-
ties represented, this case was tried before me on March 6
and 7, 1973, in Allentown, Pennsylvania, pursuant to a com-
plaint filed by the General Counsel of the National Labor
Relations Board and answers filed thereto by Traub's Mar-
ket, Inc., herein called the Respondent, and Traub's Market
Independent Union, Party to the Contract, herein called the
Independent.' Joined with the complaint are objections to
an election conducted by the Board among Respondent's
1 The complaint , which issued on January 30, 1973, is based upon charges
which were filed and served on August 24, 1972
TRAUB'S MARKET
employees on June 30, 1972, which were lodged by Local
1361, Retail Clerks International Association, AFL-CIO,
herein called the Clerks, and which the Regional Director
for Region 4 consolidated for hearing by order dated Janu-
ary 30, 1973. At issue is whether Respondent violated Sec-
tion 8(a)(2) of the National Labor Relations Act, as
amended, by rendering unlawful assistance and support to
the Independent. In his Supplemental Decision on Objec-
tions to Election, which issued on January 19, 1973, the
Regional Director also referred for decision the question of
whether the foregoing alleged acts of misconduct by Re-
spondent which antedated the June 20, 1972, election, so
interfered with the employees' freedom of choice as to re-
quire the holding of a second election. All parties were
afforded full opportunity to present evidence, to examine
and cross-examine witnesses, to argue orally at the close of
the hearing, and to file briefs. Briefs have been received
from the General Counsel, the Respondent, and the Clerks,
which have been duly considered.
Upon consideration of the entire record, including the
briefs submitted to me, and upon my observation of the
demeanor of each witness while testifying, I hereby make
the following:
FINDINGS OF FACT AND CONCLUSIONS
I THE BUSINESS OF RESPONDENT
Respondent, a Pennsylvania corporation, is engaged in
the retail sale of meats, produce, and groceries at its store
in Allentown, Pennsylvania. During the annual period ma-
tenal to this proceeding Respondent purchased supplies val-
ued in excess of $50,000 directly from suppliers located
outside Pennsylvania and, during the same period,
Respondent's gross volume of sales exceeded $500,000. The
complaint alleges, the answer admits, and I find that Re-
spondent is an employer within the meaning of Section 2(6)
and (7) of the Act.
11 THE LABOR ORGANIZATIONS INVOLVED
I find that the Independent and the Clerks are labor
organizations within the meaning of Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges that Respondent violated Section
8(a)(2) of the Act by rendering unlawful assistance and
support to the Independent when on May 9, 1972,2 it execu-
ted a collective-bargaining agreement with that Union at a
time when a "real question concerning representation" had
arisen by virtue of a petition for an election which the Clerks
had filed in Case no. 4-RC-9757 on April 24. Both the
Respondent and the Independent deny the commission by
Respondent of any labor practices proscribed by the Act.
It is undisputed and I find that, in 1967, the Independent
lawfully obtained the status of exclusive bargaining repre-
sentative for an appropriate unit of Respondent's employ-
2 Unless otherwise indicated , all dates hereinafter fall in 1972
791
ees. Thereafter, the parties entered into contractual rela-
tions. The initial labor agreement expired on April 23, 1970.
The parties then negotiated another labor compact pro-
grammed to run from April 24, 1970, and to terminate on
April 23. Commencing in January, the Respondent and the
Independent met in negotiations for a renewal agreement.
The participants during these sessions on behalf of Respon-
dent were Herman and Dick Traub. Attorney Harry Crevel-
ing acted as their chief spokesman. The Independent's
bargaining committee was staffed by Charles Arduim, its
president and two other Independent officials. Attorney
Fred Nabhan assumed the role of chief negotiator for that
organization. Numerous bargaining sessions were conduct-
ed during the months of January, February, March, and
April, with the final meeting occurring on April 6. It is
uncontroverted and I find that, at this meeting , all terms
and conditions of the new labor contract were agreed upon,
except the manner in which the wage increases should be
paid. Because the 5.5 percent increase allowed under the
Federal Pay Board regulations might create a bookkeeping
problem for Respondent, the parties turned the issue over
to their respective attorneys for further exploration. By let-
ter of April 10, Attorney Creveling wrote to Attorney Nab-
han that:
As you know, at the interview on Thursday [April 6,
1972], Mr. Dick Traub thought that a percentage raise
would create a bookkeeping problem. Since then, he
has reviewed the matter and the corporation has now
decided that they are willing to give a 5.5 increase on
their present wages for two consecutive years to all
regular, part-time and temporary employees. This
would be in conformity with the maximum permitted
under the Federal regulations.
Of course, the hourly rate would have to be rounded
out. Anything 1 /2 cent or more would be considered a
full cent and anything less than a half cent would be
forgotten.
On April 21, Creveling again wrote to Nabhan advising
that:
I have conferred with the Traubs following our discus-
sion on the phone and they have authorized me to agree
that any increases negotiated will be retroactive to the
date of termination of the old contract which I under-
stand to be April 24th.
It is undisputed and I find that the contract would have
been formally executed on April 21, but was not signed on
that date due to the absence of Nabhan from the State of
Pennsylvania because of an emergency.
Meanwhile, during the first week in April, the Clerks
embarked upon a campaign designed to wean away the
support of the employees for the Independent.3 By telegram
dated, coincidentally, April 21, the Clerks, for the first time,
apprised Respondent and the Independent of their organi-
3 George Koma, business agent and organizer for the Clerks, testimonially
related that he had contacted in excess of 40 unit employees to explain the
purposes and objectives of the Clerks' campaign
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
zational designs. In the telegram, the Clerks advised Re-
spondent to refrain from bargaining with the Independent
because the latter no longer represented a majority of the
employees involved. On April 24, the day after the 1970-72
contract had run its course, the Clerks filed a petition with
the Board in Case 4-RC-9757 seeking an election in the unit
represented by the Independent. On May 1, the Board wrote
to Charles Arduini, the Independent's president, informing
him that he had been selected to receive official communi-
cations in connection with that election proceeding. On
May 3 or 4, the employees voted by secret ballot to de-
termine whether they desired to ratify the negotiated con-
tract. A favorable ratification vote resulted 4 On May 4, the
Board notified all concerned parties that a hearing on the
representation petition was scheduled for May 11 at its
Philadelphia offices. In the meantime, on either May 9 or
10, the Respondent and the Independent formally executed
the agreement . The pay increments were made retroactive
to April 24. Following the board hearing, and on June 8, the
Regional Director issued his Decision and Direction of
Election. The balloting took place on June 30, with the
following results. 133 approximate number of eligible vot-
ers; no void ballots; 46 votes cast for the Clerks; 78 votes
cast for the Independent; 2 votes cast against participating
unions; 126 valid votes counted; and 5 challenged ballots.
Thereafter, the Clerks filed objections to the election, claim-
ing that the formal execution of the contract by Respondent
and the Independent on May 9 or 10, in the face of its
pending election petition, interfered with the employees'
right of free choice. As indicated heretofore, these objec-
tions have been consolidated for hearing and decision with
the alleged unfair labor practices charged against Respon-
dent herein.
In support of his complaint, the General Counsel relies
squarely upon the Midwest Piping doctrine.5 In that case, the
Board ruled that it is generally an unfair labor practice for
an employer to recognize and bargain with one of two or
more unions as the collective-bargaining agent of its em-
ployees during the pendency of a rival union's petition for
certification where a "real question of representation ex-
ists." As the Board noted in Ensher, Alexander & Barsoom,
Inc.,6 however, "That doctrine, necessary though it is to
protect freedom of choice in certain situations, can easily
operate in derogation of the practice of continuous collec-
tive bargaining, and should, therefore, be strictly construed
and sparingly applied." Moreover, the Board observed in
William Penn Broadcasting Co,7 that, when the doctrine is
invoked by the General Counsel, it is his responsibility to
establish that a real question of representation has arisen.
The Board also added that, "Necessarily , it is for the Board,
within the prescribed procedures of the Act, ultimately to
determine after full litigation of the issue , whether a real
question concerning representation existed under particular
circumstances." 8
Independent President Arduini testified without contradiction and I find
that he was totally unaware that the Clerks had filed an election petition
when the ratification vote was taken
5 Midwest Piping and Supply Co, 63 NLRB 1060
674 NLRB 1443, 1445
'93 NLRB 1104, 1106
8 Id at 1105, In 5
After a careful review of this record, I am not convinced
that the General Counsel has sustained his burden of show-
ing by preponderant proof that a real question concerning
representation had been provoked by the filing of the
Clerks' petition which thereafter barred Respondent from
dealing contractually with the Independent. In 1967, the
Independent obtained exclusive representational rights and
successive collective-bargaining agreements were negotiat-
ed and signed with Respondent. There is nothing in the
record which even remotely suggests , and, indeed, the Gen-
eral Counsel does not contend, that the bargaining relation-
ship between Respondent and the Independent was not at
"arm's length" at all material times. In January, the parties
sat down to hammer out a new agreement to replace the one
which was due to expire on April 23. I have found that, at
a final meeting of the negotiators on April 6, a consensus
was reached regarding every contractual item with the ex-
ception of the manner in which the negotiated wage increase
was to be paid. Concurrent with this final bargaining ses-
sion, the Clerks, for the first time, launched an organiza-
tional campaign among Respondent's employees. It is
uncontroverted and I find that the negotiators were com-
pletely ignorant of the fact that the Clerks had undertaken
an organizational campaign until April 21, when that labor
organization dispatched a telegram to Respondent indicat-
ing a claim of employee support. On the same day, the
Independent and Respondent consummated an agreement
on the only outstanding issue, namely, the manner of pay-
ment of the wage increase and, as I have heretofore found,
the contract would have been executed on that date but for
the absence of the Independent's attorney from the State.
In my opinion, that the Clerks' petition of April 24 did not
raise a "real question concerning representation" within the
contemplation of Midwest Piping is exemplified by the
events which transpired following the filing. On May 3 or
4, a secret ballot was conducted among Respondent's em-
ployees to ascertain whether they approved of the contract
that had been negotiated. That approval was overwhelm-
ingly forthcoming, despite the fact that Arduini testified
that he was totally unaware of the filing of the Clerks'
petition when this vote was held. If Arduini, the president
of the Independent who had been designated by the Board
to receive official communications regarding the impending
representation election, was in the dark as to the petition,
it is not unreasonable to infer, as I do, that the rank-and-file
employees were similarly uninformed about the matter
when they cast their vote. Yet, in the ensuing Board election
conducted on June 30, the employees rejected the Clerks as
their bargaining representative by a vote of almost 2 to 1.
Confronted with an opportunity to take a second look at the
pitch, Respondent's employees nonetheless elected to stand
by the Independent and the contract which it had garnered
from their employer, in preference to the Clerks and the
entreaties which that union had made to them in the course
of the earlier organizational drive.
This is not a case in which an employer has, in any man-
ner, coerced his employees, by threats or otherwise, to ac-
cept contractual terms which he has dictated to a chosen
collective representative in forfeiture of the neutrality which
is demanded when competing unions vie for the favor of his
employees. Nor is this a case where an employer set out to
TRAUB'S MARKET
disparage a rival union in order to foster one, more to his
liking, by surreptitiously conducting negotiations with a
"sweetheart." No such conduct is alleged in the General
Counsel's complaint as offensive to the statute.
The filing of a petition with the Board by a rival union,
prior to the execution of a contract between an employer
and an incumbent labor organization, does not, under the
teachings of Midwest Piping and companion decisions, auto-
matically trigger a violation of Section 8(a)(2) of the Act by
the subsequent signing of the agreement by that employer.
It is the substantiality and continuing cogency of the rival's
claim, not the mere filing of the petition, which determines
the legitimacy of the employer's actions." If, at all, the Re-
spondent intruded upon the peripheral strictures of Midwest
Piping by contracting with the Independent, that over-step
was too technical to warrant remedial relief in this proceed-
ing.
9 See Pittsburgh Valve Co, 114 NLRB 193, 195
793
Under the circumstances here presented , I am not con-
vinced that the General Counsel has spelled out a violation
of Section 8(a)(2) of the Act by Respondent . 10 I shall there-
fore order that the complaint filed herein be dismissed. As
a consequence thereof , I shall also recommend that the
petition filed in Case 4-RC-9757 be dismissed.
ORDER I1
It is hereby ordered that the complaint in this proceeding
be, and it hereby is, dismissed in its entirety.
IT IS FURTHER ORDERED that the petition filed in Case 4-
RC-9757 be, and it hereby is, dismissed.
10 Cf NLRB v Swift & Company, 294 F 2d 285 (C A 3, 1961).
11 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions and recommended Order herein shall, as provided in Sec 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions , and order , and all objections thereto shall be deemed
waived for all purposes