U and I, Inc.

National Labor Relations Board - Board Decisions

Dec 6, 1976

227 N.L.R.B. 1 (N.L.R.B. 1976)

U AND I, INC.
U and I, Inc. and American Federation of Grain
Millers, and its affiliated Local No. 288 , AFL-CIO
and International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca, and its affiliated Locals 983,524 ,976,222, 148,
839, and 556, Parties in Interest . Case 19-CA-
81-94
December 6, 1976
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
Upon a charge duly filed on November 26, 1975, by
American Federation of Grain Millers, and its
affiliated Local No. 288, AFL-CIO, hereinafter
called the Grain Millers, the General Counsel of the
National Labor Relations Board, by the Regional
Director for Region 19, issued a complaint and notice
of hearing on January 15, 1976, against U and I, Inc.,
hereinafter called Respondent. The complaint alleged
that Respondent had engaged in and was engaging in
unfair labor practices affecting commerce within the
meaning of Sections 8(a)(1) and (2) and 2(6) and (7)
of the National Labor Relations Act, as amended, by
recognizing and entering into a contract with the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, and its
affiliated Locals 983, 524, 976, 222,' 148, 839, and 556,
hereinafter called the Teamsters.
On March 26, 1976, the parties executed a stipula-
tion of facts by which the parties waived a hearing
before an Administrative Law Judge and the issuance
of an Administrative Law Judge's Decision, and
agreed' to submit the case to the Board for findings of
fact, conclusions of law, and an order, based on a
record consisting of the stipulation and the exhibits
attached thereto.
On April 22, 1976, the Board approved the stipula-
tion of the parties and ordered the case transferred to
the Board, granting permission for the filing of briefs.
Thereafter, the General Counsel, the Respondent,
and the Teamsters as Parties in Interest filed briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the basis of the stipulation, the -briefs, and the
entire record in this case, the Board makes the
following:
, All dates mentioned are in 1975 unless specifically indicated to be
otherwise.
FINDINGS OF FACT
1. JURISDICTION
I
Respondent is and at all times material has been a
Utah corporation , having its general offices in Salt
Lake City , and is engaged in agriculturally based
diversified operations encompassing five subsidiary
corporations-a trucking division , four sugar beet
processing plants, and a seed plant . During the past
calendar year , a representative period , Respondent
sold and shipped from its Toppenish , Washington,
location, a facility with which we are concerned
herein, finished products valued in excess of $50,000
to points outside the State of Washington.
Respondent admits, and we find, that it is, and at
all times material herein has been , an employer as
defined in Section 2(2) of the Act engaged in
commerce and in operations affecting commerce as
defined in Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Respondent admits , and we find, that American
Federation of Grain Millers , and its affiliated Local
No. 288 , AFL-CIO, and International Brotherhood
of Teamsters , Chauffeurs, Warehousemen and Hel-
pers of America, and its affiliated Locals 983, 524,
976, 222, 148, 839, and 556 , are labor organizations
within the meaning of Section 2(5) of the, Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
Prior to September 1975,1 most of Respondent's
trucking services for its facilities were provided by
independent haulers and common carriers. However,
Respondent also employed 22 drivers, 11 of whom
were represented by the Teamsters, 4-6 of whom
were unrepresented, and 7 of whom were represented
by the Grain Millers in a unit of production and
maintenance employees at Respondent's West Jor-
dan, Idaho Falls, Toppenish, Moses Lake; and
Garland facilities.
Respondent then decided to create its own trucking
division. Subsequent to this decision, James Rand,
director of industrial relations for Respondent, met
on August 1 with Lloyd Ott of the-Grain Millers to
discuss the possibility of entering into an addendum
to the master agreement between Respondent and the
Grain Millers which would cover the drivers to be
employed by the proposed division. On August 7, Ott
notified Respondent that the proposed addendum
was unacceptable. He offered to include the drivers
under the terms of the master agreement without any
changes. No other proposals were exchanged, nor did
227 NLRB No. 21
2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Grain Millers indicate that it wished to pursue the
matter any further. There were no other meetings
held between Respondent and the Grain Millers
regarding representation of the employees of the
proposed trucking division.
On September 5, Respondent began hiring employ-
ees for the division and, on September 22, it began its
trucking division operations. On September 23,
Respondent met with representatives of Teamsters
Locals 983, 524, 976, 222, 148, 839, and 556, at which
time the Teamsters notified Respondent that it had
obtained authorization cards from 90 percent of the
drivers in the new division. Discussions were then
commenced concerning an agreement between Re-
spondent and the Teamsters.
Respondent and the Teamsters representatives met
again on October 20 and reached agreement on a
master contract, which was signed early in Novem-
ber.2 At no time had the Grain Millers claimed that it
represented any employees in the newly formed
trucking division. Thereafter, however, on November
17, the Grain Millers filed a representation petition
seeking an election among "all the over-the-road
truck drivers including local and line hauls" em-
ployed by Respondent.
The parties have stipulated that the drivers em-
ployed by Respondent's trucking division have at all
times constituted a separate and appropriate unit and
are not an accretion to any unit represented by the
Grain Millers. Moreover, absent the August 1 and 7
contacts with the Grain Millers, it is conceded
Respondent's subsequent recognition of the Team-
sters could not be held unlawful.
A. Contentions of the Parties
Invoking Midwest Piping and Supply Co., Inc.,3 the
General Counsel contends that Respondent violated
Section 8(a)(2) and (1) of the Act by recognizing the
Teamsters. He argues in this connection that there
was prior recognition and bargaining with the Grain
Millers over trucking division employees which was
sufficient to raise a claim by the Grain Millers which
is "fully supportable and not lacking in substance."
On the other hand, Respondent and the Teamsters
assert that no teal question concerning representation
existed at the time recognition was extended to the
Teamsters which would render that recognition
unlawful under Midwest Piping.
B. Analysis and Conclusions
The Midwest Piping doctrine which the General
Counsel would invoke in this case requires strict
neutrality of an employer when faced with the
conflicting claims of two or more rival unions which
give rise to a real question concerning representation
in a unit appropriate for collective bargaining.
Implicit in this concept of neutrality is the existence
of a real representation question. Thus, an employer
does not violate the Act by extending recognition to
one of the competing unions where the rival union's
representation claim is clearly unsupportable or
specious or otherwise not colorable.4
The sole issue raised by the stipulation in this case
is whether, when Respondent extended recognition to
the Teamsters, there was an outstanding claim by the
Grain Millers which raised, a question concerning
representation so that, under Midwest Piping, the
Teamsters recognition would be unlawful. We agree
with Respondent and the Teamsters that there was
not such a claim.
In the first place, on the basis of the stipulated facts,
it can hardly be found that there was any outstanding
claim by the Grain Millers for recognition of the
trucking division employees when Respondent met
with the Teamsters. Prior thereto, there had been only
a single meeting between Respondent and the Grain
Millers, which had been initiated by Respondent and
not the Grain Millers. Following this meeting, with
the exception of the notification by the Grain Millers
to Respondent that the proposed addendum was
unacceptable, there was no further exchange of
proposals and no indication by the Grain Millers that
it wished to pursue the matter any further. In the
circumstances, it would be difficult to find that there
were conflicting claims at the critical time herein.
In any event, even assuming that there were such
rival claims, it is plain that any claim by the Grain
Millers could not have given rise to a real, question
concerning representation for, by its own admission,
the Grain Millers never had any representation in the
appropriate unit herein composed of Respondent's
trucking division.
Thus, no question concerning representation exist-
ing when Respondent extended recognition to the
Teamsters on the basis of the latter's claim of 90-
percent representation in the trucking division, we
find, consistent with the stipulation of the parties,
that Respondent's recognition of, and contract with,
2 The contract excluded all employees covered by an agreement with 4 Playskool, Inc., a Division of Milton Bradley Company, 195 NLRB 560
another union. (1972).
3 63 NLRB 1060 (1945)
UANDI,INC. 3
the Teamsters did not violate the Act, and we shall
dismiss the complaint.5
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
MEMBER WALTHER, concurring:
I concur with my colleagues in dismissing the
complaint herein, but in so doing I find it necessary
to reject the application of Midwest Piping and Supply
Co., Inc.6 For the reasons which I will state below, I
will find a violation of Section 8(a)(2) of the Act in
cases of this nature only where the General Counsel
has sustained his burden of proving that the union
which has achieved representative status by means of
an employer's voluntary recognition has done so
either without securing majority status in fact, or
union has secured that majority support with the
active aid and assistance of the employer. In my view,
the Act's purposes are fulfilled, not violated, where
the employer recognizes and bargains with the union
which enjoys majority status?.
My colleagues may decide what is for them an
appropriate occasion for the expression of their views
of legal principles. I shall do likewise and consider
this case appropriate for further expression of my
views. In my opinion, this case is, most appropriate for
a full and complete analysis of the law and its
application or what it should be in so-called Midwest
Piping situations.
The scenario is virtually redundant. In August
1975, Respondent attempted to interest the Grain
Millers in representing Respondent's drivers in a new
division of its business. However, in two contacts, on
August 1 and 7, 1975, the parties failed to agree on
the Grain Millers representing these drivers. Subse-
quently, about 6 weeks later, on September 23, 1975,
the Teamsters claimed majority status among the
drivers in the new division and demanded recognition
by Respondent. Respondent recognized and began
negotiations with the Teamsters. The parties thereaf-
ter reached agreement on a contract in early Novem-
ber- 1975. Some 2, weeks later, on November 17, 1975,
the Grain Millers filed a representation petition,
seeking an election in the recently established drivers'
unit.
5 Because this case does not present a true Midwest Piping situation and
inasmuch as Member Walther concurs in our dismissal of the complaint, we
do not believe that it would serve any real purpose to debate the merits of the
Midwest Piping doctrine with Member Walther herein.
6 63 NLRB 1060 (1945)
r International Ladies' Garment Workers' Union, AFL-CIO [Bernhard-
Altman Texas Corp.] v N L.R.B., 366 U.S. 731 (1961).
The complaint is based on the contention that a
violation exists under the auspices of the Board's
Decision in Midwest Piping and Supply, Inc., supra.
For reasons I note below, I will dismiss the complaint
but, more fundamentally, I renounce the so-called
Midwest Piping doctrine.
Section 8(a)(2) of the Act provides in part that it is
an unfair labor practice for an employer to "domi-
nate or interfere with the formation or administration
of any labor organization . . . ." As the Seventh
Circuit noted in Playskool, Inc. v. N. L R. B., s a
"significant application of this statutory language" is
involved in the Board's Midwest Piping doctrine.
Under that doctrine, an employer who is confronted
with conflicting representation claims by two rival
unions may not recognize one of the two competing
unions until its right to be recognized has been
determined finally by a Board-conducted election.
The Board concluded in Midwest Piping that, in such
rival union situations, "Congress has clothed the
Board with the exclusive power to investigate and
determine representatives for the purposes of collec-
tive bargaining." 9 For an employer to recognize one
of two competing unions, in such a situation, would,
the Board concluded, indicate the employer's approv-
al of that union; accord that union unwarranted
prestige; encourage membership in if; discourage
membership in the other union; and thereby render
"unlawful assistance" to the recognized union in
derogation of the Act.'° Ironically, it is clear that all
of these "horribles" are the natural, foreseeable, and
mandatory result of either a Section 9 certification, or
of a remedial bargaining order, points which the
courts of appeals have had no difficulty recognizing.
For reasons I will make apparent hereafter, the
specific language of the Board's holding in Midwest
Piping should be noted. In particular, the Board
stated:
Under such circumstances, the Congress has
clothed the Board with the exclusive power to
investigate and determine representatives for the
purposes of collective bargaining.' In the exercise
of this power, the Board usually makes such
determination, after a proper hearing and at a
proper time, by permitting employees freely to
select their bargaining representatives, by secret
ballot. In this case, however, the respondent
elected to disregard the orderly representative
procedure set up by the Board under the Act, for
which both unions had theretofore petitioned the
8 477 F.2d 66, 69 (CA. 7, 1973), denying enforcement 195 NLRB 560
(1972)
9 63 NLRB 1060, 1070
10 63 NLRB at 1071
4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board, and to arrogate to itself the resolution of
the representation dispute against the Steelwork-
ers and in favor of the Steamfitters.
Of particular significance, although it may have
passed relatively unnoted at the time, was footnote 13
of the Board's opinion. There the Board said:
13 Respondent relied on signed membership cards as proof of the
Steamfitters ' claim of majority status . Under the circumstances, we do
not regard such proof as conclusive Among other things , it is well
known that membership cards obtained during the heat of rival
organizing campaigns like those of the respondent 's plants, do not
necessarily reflect the ultimate choice of a bargaining representative,
indeed, the extent of dual membership among the employees during
periods of intense organizing activity is an important unknown factor
affecting a determination of majority status, which can best be resolved
by a secret ballot among the employees.
Since Midwest Plumbing, the Board has consistently
held that an employer is precluded from recognizing
any union when a competing union has raised a
"question concerning representation." In Midwest
Piping itself, the requirement of a "question concern-
ing representation" was met because the rival union
had filed a representation petition. And, although in
an early Board decision involving the Midwest Piping
doctrine the Board noted that the doctrine should be
"strictly construed and sparingly applied,"" the
Board has , over the years, progressively lowered this
requirement and accepted less of a showing of
support to raise a "question concerning representa-
tion" under the Midwest Piping doctrine. Presently,
the Board's position is that all that is needed to raise a
question concerning representation is that the claim
of the rival union must not be "clearly unsupportable
or specious, or otherwise not a colorable claim." 12
This explains how, in American Bread Company, 13 the
Board could stretch the doctrine so far as to conclude
that a question concerning representation had been
established where an employer knew of a rival
union's organizational campaign; the union had
participated in an election at the employer the year
before; and the union presented a single authoriza-
tion card in a unit of 92 employees before recognition
was extended to the other union. To find 'a violation
here, we would have to extend this idea to its outer
fantasies by asserting that a question concerning
representation was raised by the Employer itself
because Respondent had on its own initiative briefly
discussed a contract with the Grain Millers some I-
1/2 months before it recognized the Teamsters.
According to the Charging Party, this brief encounter
11 Ensher, Alexander & Barsoom, Inc., 74 NLRB 1443, 1445 (1947).
12 Buck Knives, Inc, 223 NLRB 983, sec. III ,B, first par (fn omitted)
( 1976); see also Playskool, Inc., 195 NLRB 560 (1972).
13 170 NLRB 85 (1968 ), enforcement denied 411 F.2d 147 (C A. 6, 1969)
14 See, e.g., Traub 's Market, Inc., 205 NLRB 787 (1973), enforcement
denied 505 F.2d 730 (CA. 3, 1974); Cleaver-Brooks Mfg Corporation, 120
NLRB 1135 ( 1958), enforcement denied 264 F.2d 637 (C A 7, 1959); Modine
gave the Grain Millers "a claim which is fully
supportable and not lacking in substance" and which
has now triggered the Midwest Piping requirement
that an election be held. Reductio ad absurdum.
I note that as the Board has steadily eroded the
requirement of a clearly supportable claim to exclu-
sive representative status in a competing union
situation, the courts have just as consistently refused
to enforce Board orders founded on Midwest Pip-
ing.14 Not only do I agree with the courts' criticism of
the Board's Midwest Piping doctrine, but I find it
necessary to simply abandon that decision to the very
graveyard in which it has buried so many of our
orders over the past 31 years.
The correct analysis of this part of the Act is
succinctly expressed in the Seventh Circuit's decision
in Playskool, Inc. v. N.L.R.B., supra.15 There, the
court commented that "the Board looks first to the
support held by the minority union and finds a
`question concerning representation' if the claim of
that union is `not clearly unsupportable'; [while] the
courts look first to the support held'by the majority
union and find that no `question concerning repre-
sentation' exists if that union has the validly-obtained
support of an employee majority and the rival union
is thus shown to be `no genuine contender.' " One
commentator has indicated that, "This difference in
definition between the Board and the courts stems
from differing views as to the function of the Midwest
Piping doctrine... [T ]he Board views the doctrine in
part as a way of insuring the integrity of its election
machinery. -It thus holds the doctrine applicable
whenever an election is appropriate, and the Board
will go ahead with an election despite a ' prior
expression of majority sentiment. The courts on the
other hand have thought of the Midwest Piping
doctrine solely as a technique for ' preventing the
employer from imposing his own choice of a bargain-
ing representative upon his employees." 16 If the
commentator had written this 6 years later, after our
decision in American Bread, supra, he would have had
to expound on the phrase "whenever an election is
appropriate," inasmuch as the union there had
obtained only one card from among 92 employees.
Indeed, by refusing to allow an employer to resolve
the conflict created by two'competing unions in any
way other than through a Board-conducted election,
the Board, to preserve what it conceives to be the
integrity of its election machinery, eradicates the
Manufacturing Company, 186 NLRB 629 (1970), enforcement denied 453
F.2d 292 (C.A. 8, 1971 ); Inter-Island Resorts, Ltd, d/b/a Kona Surf Hotel,
201 NLRB 139 (1973), enforcement denied 507 F.2d 411 (C.A 9, 1974)
15 477 F.2d at 70, fn. 3
16 Getman, The Midwest Piping Doctrine An Example of the Need for
Reappraisal of Labor Board Dogma, 31 U Chi. L Rev 292, 297 (1964)
U AND I, INC. - - 5
employees' right to select their chosen representative
without undue delay.17 Further, by so exalting the
necessity for a Board-held election in a rival union
situation, the Board ignores the fact that the election
process is only one means, though admittedly the
preferable means, for -determining employee choice.
For, as the court noted in N.L.R.B. v. Air Master
Corporation, Air Master Manufacturing Company,
Inc., etal.:18
It is interference with the employees' choice, not
frustration of the Board's design to hold an
election, which the statute proscribes as an unfair
labor practice.
I think it clear that it is now the Board which is
arrogating unto itself powers which it-does not in fact
have, and I believe that the Supreme Court so
instructed- us, at our -own request, in its landmark
opinion in N.L.RB. v. Gissel Packing Co., Inc.19 In
that.opinion the.Supreme Court resolved the issue
"whether a ,union can establish a bargaining obliga-
tion by means other than a Board election and
whether the- validity of. alternate routes to majority
status, such as cards, was affected by the 1947 Taft-
Hartley amendments." After a lengthy analysis, in
which the Court reaffirmed its holding in Garment
Workers' Union v. N_L.RB., supra, that an employer
may not even in good faith recognize a minority
union, the Court held that the Act
did not restrict an employer's duty to bargain
under § 8(a)(5) solely to those unions whose
representative status is certified after a Board
election.17
17 As aptly stated in Lesmck, Establishment of Bargauung Rights
Without an NLRB Election, 65 Mich L. Rev 851, 861-862 (1967),
"Cards have been used under the act for thirty years; [this ] Court has
repeatedly held that certification is not the only route to representative
status; and the 1947 attempt in the House-passed Hartley Bill to amend
section 8(a)(5) . . was rejected by the conference committee that
produced the Taft-Hartley Act. No amount of drum beating should be
permitted to overcome, without legislation, this history."
As we all know by now, the Court held that, subject
to certain restrictions designed to protect the validity
of authorization cards, cards are fully as adequate a
means to determination of majority representation as
a Board-conducted election. In that case the Court
also noted, with approval, that the Board had finally
abandoned the morass of Joy Silk's requirements of
"good faith" by an employer when the employer
17 Early on in the development of the Midwest Piping doctrine, the Board
itself noted this fact . In Ensher, Alexander & Barsoom, Inc., supra, the Board,
in commenting that the Midwest Piping doctrine should be applied "spang-
ly," noted that "necessary though [the doctrine] is to protect freedom of
choice in certain situations [it ] can easily operate in derogation of the
practice of continuous collective bargaining .. " 74 NLRB at 1445, What
the Board then cautioned against, it has now brought to pass
18 339 F.2d 553,556 (C A 3, 1964).
refuses a demand for recognition. This principle is in
harmony with the Garment Workers'`holding. Good
or bad faith is irrelevant; only a union possessing
majority status in fact may be recognized by an
employer as the exclusive representative. Of course, if
the employer somehow errs in his factual judgment of
the situation and recognizes a union that does not in
fact have majority support, he will be guilty of an
unfair labor practice in accord with the Supreme
Court's decision in International Ladies' Garment
Workers'-v. N.L.RB.20 But also is it the law that a
correct factual determination by the, employer is as
valid as a Board certification for ascertaining majori-
ty status.21
There are, of course, ..exceptions to the right and
duty of an employer to recognize one of two
competing unions which has, demonstrated its sup-
port among a majority of the employees. Among such
situations are those where the union's majority
support is due- to coercion or deception by the
employer.22 But, no such claim is made in this case.
Further, there is no allegation in the complaint
herein, and no evidence presented that the Teamsters
did not represent a majority of Respondent's employ-
ees at the time recognition was extended, to the
Teamsters 23
I approve the views expressed by the Third Circuit
in N.L.R.B. v. Air Master Corporation,. Air Master
Manufacturing Company, Inc., et al., supra, 24 Which
coincide with my own. Specifically, I conclude that:
For an employer to recognize a union that enjoys
only minority support, is an unfair labor practice
under the explicit holding of the Supreme Court in
the International Ladies' Garment Workers case
[cited supra]. To recognize one of two competing
unions while the employees' choice between them
is demonstrably in doubt, is [also] an unfair labor
practice . . . . And in principle the same result
follows when majority support for the recognized
union exists, but has been achieved by coercion or
some other unfair labor practice. But where a
clear majority of the employees, without subjec-
tion to coercion or other unlawful influence, have
made manifest their desire to be represented by a
particular union, there is no factual basis for a
contention that the employer's action thereafter in
recognizing the union or contracting with it is an
19 395 U.S. 575 (1969).
20 366 U.S. 731(1961).
21 See 366 U.S. at 739-740.
22 See, e.g., Iowa Beef Packers, Inc v NLRB, 331 F 2d 176 (C.A. 8,
1964), enfg. 144 NLRB 615 (1963).
23 Cf. International Ladles' Garment Workers'v. NLRB, supra
24 339 F 2d 553, 557.
6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
interference with their freedom of choice. [Em-
phasis supplied.]
Indeed, I further conclude along with the Third
Circuit that, in the latter circumstance, such recogni-
tion by the employer and the negotiation and
execution of a collective-bargaining agreement are
"precisely the sort of cooperation that- it is the policy
of the Act to foster." 25
A complete investigation of the development of the
Midwest Piping doctrine since its inception some 31
years ago convinces me that the doctrine has been
overextended, and ultimately in my view superseded
by the development of the law defining the parame-
ters of an employer's duty to bargain and the
appropriateness of Board-imposed bargaining orders
supported entirely by authorization cards. As I stated
in my concurring opinion in Buck Knives, Inc., 223
NLRB 983 (1976),26 an employer who recognizes and
bargains with a union which it itself has given the
means and aid which enabled the union to secure a
majority of authorization cards, cannot rely on those
tainted cards in defending itself against an 8(a)(2)
charge. On the other hand, regardless of the weight of
interest demonstrated by one or more unions in
representing the employer's employees, where the
employer recognizes a union which in fact represents
an uncoerced majority of those employees, then there
is no violation of the Act; on the contrary, I believe
that the ,purposes of the Act have been fulfilled as the
court so stated in the International Ladies' Garment
Workers', supra, case.
Accordingly, to establish a violation of the Act,
General Counsel carries the burden of proving,
unaided by such fictions of proof as we customarily
have attributed to incumbency status or the existence
of a petition filed with us that the union is in fact a
minority union . This is so regardless of whether the
employer examines the, cards of the union or even
permits competing unions to submit their cards.
However, I recognize that General Counsel will have
made a prima facie showing sufficient to require the
charged employer to come forward with the proof of
majority support which would 'exonerate him, where,
e.g., in Buck Knives, supra, General Counsel-demons-
trates that the employer has aided the union of its
choice in securing cards or other indicia'of support by
any benefit not accorded on an impartial basis to all
competing labor organizations. Among those matters
of proof which I would deem sufficient to make out a
prima facie case would be the situation where the
employer has not accorded the competing union the
opportunity to submit its evidence of support con-
temporaneously with that submitted-by the ultimately
victorious union.27
Accordingly, I join my colleagues in dismissing the
complaint in its entirety.
25 Suburban Transit Corp andH.A M I Corporation v. N.L.R.B, 499 F.2d 27 This is all that is required to dispose of the fear of dual membership
78,86 (C.A. 3,1974), denying enforcement 203 NLRB 465 (1973) expressed by the Board in fn. 13 of its Midwest Piping opinion. See my
26 See also my concurring opinion in Newport Division of Wintex Knitting concurring opinion in Newport Division of Wintex Knitting Mill, Inc, 223
Mill, Inc., 223 NLRB 1293 (1976). NLRB 1293 (1976).