Union Carbide and Carbon Corp.

National Labor Relations Board - Board Decisions

Apr 27, 1953

104 N.L.R.B. 416 (N.L.R.B. 1953)

416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cated their desire to be represented by such Unions, and if a
majority in group (d) likewise vote for such Unions, the Regional
Director is instructed to issue a certification of representatives
to the Joint Petitioners for a plantwide production and mainte-
nance unit, including therein the employees in any one or more
of groups (a) to (c ) in which a majority has voted for such Union,
which unit the Board, under such circumstances, finds to be
appropriate for purposes of collective bargaining.
ORDER
IT IS HEREBY ORDERED that the petitions in Cases Nos.
10-RCS 2207, 10-RC-2208, 10-RC-2209, and 10-RC-2210be, and
they hereby are, dismissed.
[Text of Direction of Elections omitted from publication. I
NATIONAL CARBON DIVISION, UNION CARBIDE AND CARBON
CORPORATION AND NATIONAL CARBON COMPANY, INC.
and LOCAL 85, UNITED GAS, COKE AND CHEMICAL
WORKERS, CIO. Case No. 3-CA-177.
NOTICE TO SHOW CAUSE
On August 22, 1952, the Board issued its Decision and Order
in the above-entitled case.' Upon reconsideration on its own
motion, it appears to the Board that said Decision and Order
should be amended in the manner set forth in the proposed
Amendment to Decision and Order, attached hereto.
Please take notice that unless on or before May 11, 1953,
proper cause to the contrary is shown, the National Labor Re-
lations Board will issue as an Amendment to Decision and
Order, the proposed amendment attached hereto.
1100 NLRB 689.
PROPOSED AMENDMENT TO DECISION AND ORDER
The second paragraph of the Decision and Order herein (100
NLRB 689), is hereby deleted.
In place thereof the following is hereby substituted:
The Board has reviewed the rulings for the Trial Ex-
aminer made at the hearing and finds that no prejudicial
error was committed. The rulings are hereby affirmed.'
1 As noted in the Intermediate Report, the Respondent moved , at the outset of the hear-
ing, that the complaint be dismissed This motion, which the Trial Examiner denied, was
predicated upon the fact that the initial charges were filed by the Union at a time when its
parent organization , the CIO, was not in compliance with the provisions of Section 9 (i),
(g), and (h) of the Act However , the CIO was in compliance at the time the complaint
issued . See Dant & Russell , Ltd., 73 S. Ct. 375.
104 NLRB No. 80.
NATIONAL CARBON DIVISION 417
The Board has considered the Intermediate Report, the
exceptions and briefs, and the entire record in the case
and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner only to the extent that
they are consistent with our dismissal herein of the com-
plaint in its entirety.
The entire balance of the Decision and Order herein com-
mencing with the subsection captioned "Refusal to bargain after
August 25, 1949," appearing on page 698 and ending with
"Appendix A," inclusive, is hereby deleted.
In place thereof the following is hereby substituted:
(4) Refusal to bargain after August 25, 1949
The Trial Examiner found that at various times after
August 25, 1949, the Respondent violated Section 8 (a) (5)
and (1) of the Act, by refusing to resume negotiations with
the Union and by unilaterally increasing wages and em-
ployee benefit plans. We do not agree.
On August 25, the Respondent informed the Union that it
had just received a representation claim from the Inde-
pendent Union and that it had not had time to determine
what its "proper position" should be, but that until the
situation could be "clarified" it nevertheless intended to
continue to bargain with the Union. On September 12, the
Independent filed a representation petition with the Board,
whereupon the Respondent refused, on request, to continue
negotiations with the Union. On March 30, 1950, the Re-
gional Director dismissed the petition because of the
pending unfair labor practice charges.16 On April 21, this
dismissal was sustained by the Board. Thereafter, the
Respondent again refused upon request to resume bar-
gaining with the Union and unilaterally made certain change s
as to wages and employee benefit plans.
We agree with the Respondent that the filing of the peti-
tion raised a prima facie question concerning representa-
tion which, under the "Midwest Piping" doctrine," pre-
cluded it from bargaining further with the incumbent union
during the pendency of the petition. The Board has held
that the mere filing of a petition by a rival union seeking to
dislodge an incumbent union, such as that here, does not
itself require an employer to refrain from continuing to
recognize the incumbent statutory representative.18 But
we also pointed out that, in continuing the established
relationship with an incumbent union, an employer runs
the risk of an unfair labor practice finding if the Board
later determines that the petition raised a "real question
16 These charges were litigated in the instant proceeding and, as herein found, were
without merit.
17 The doctrine derived its name from the-case entitled Midwest Piping and Supply Co ,
Inc., 63 NLRB 1060.
18 William Penn Broadcasting Company, 93 NLRB 1104.
418 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concerning representation." It would therefore be mani-
festly unfair to require an employer who has engaged in no
antecedent unfair labor practice to bargain at his peril
during the pendency of a timely petition.
Nor do we believe, as does our dissenting colleague,
Member Houston, that Respondent unlawfully refused to
bargain after the Board had affirmed the dismissal of the-
petition. True, after such dismissal, the Respondent was
no longer under possible legal jeopardy within the meaning
of the Midwest Piping doctrine. However, that fact is not
necessarily dispositive of another aspect of the Respond-
ent's defense involving application of the Board's settled
rule that after the end of the certification year, an em-
ployer may with impunity refuse to continue recognition of
a certified union where there exists a good-faith doubt as to
its continued majority status.19
We are convinced by the record as a whole that during
the pendency of the petition and after its dismissal by the
Board there was a reasonable basis for the Respondent to
have believed that the Union no longer represented a
-majority of the employees. Thus, the Union's certification
was about 5 years old. It had just terminated an unsuc-
cessful strike which resulted in the replacement of a large
number of union adherents. The Independent had made a
rival claim of representation upon the Respondent, and
implemented it by filing a representation petition. As
stated above, the Independent's petition was administra-
tively dismissed by the Board, not because its claim was
unfounded, but because of the pendency of certain charges
filed by the Union which have beenfoundherein to be with-
out merit. We are convinced that the dismissal of the
petition in these circumstances did not alleviate the Re-
spondent's otherwise reasonable and preexisting doubt as
to the Union's majority status but only delayed its resolu-
tion.
Any other view would, in our opinion, permit an incum-
bent union to perpetuate its majority status by filing charges
which after litigation were found to be groundless.
We accordingly find, contrary to the Trial Examiner,
that after August 25, 1949, the Respondent was justified in
refusing to resume negotiations with the Union as the ex-
clusive bargaining agent and that its subsequent unilateral
action with respect to insurance, pensions, and wage rates
was not violative of section 8 (a) (5) and (1) of the Act.
As we have adopted that portion of the Intermediate Re-
port dismissing certain allegations of the complaintandas
we have reversed all unfair labor practice findings made
by the Trial Examiner, we shall dismiss the complaint in
its entirety.
ORDER
Upon the entire record in the case and pursuant to Section
10 (c) of the National Labor Relations Act, as amended, the
19Celanese Corporation of America . 95 NLRB 664, 671-2.
NATIONAL CARBON DIVLSION 419
National Labor Relations Board hereby orders that the com-
plaint herein against the Respondent, National Carbon
Division, Union Carbide and Carbon Corporation, and Na-
tional Carbon Company, Inc., Niagara Falls,NewYork,be,
and it hereby is, dismissed.
Member Houston, dissenting in part and concurring in
part:
I agree with the opinion of Chairman Herzog and Mem-
ber Murdock that there was no refusal to bargain before
the representation petition was dismissed . But I cannot
agree insofar as it fails to find that the Respondent did not
unlawfully refuse to bargain after April 21, 1950, the date
on which the Board dismissed the Independent's petition.
In my opinion that dismissal was tantamount to a holding
that there was then no question concerning the represen-
tation of the Respondent's employees. Consequently, the
Respondent could not rely on any asserted doubt of the
Union's majority so as to excuse its admitted refusal to
resume bargaining . The Union ' s majority status, estab-
lished by Board certification in 1945, must be presumed
under these circumstances to have continued unaffected.
Member Peterson, concurring specially:
Although I agree with the dissenting view of Member
Styles, that the Respondent unlawfully refused to bargain
at the outset of negotiations , such view cannot here prevail,
as a majority of the Board (Chairman Herzog and Mem-
bers Houston and Murdock) hold to the contrary. There-
fore, and in order to obtain a majority determination of all
issues raised by the complaint, I shall regard the majority
holding on the above point to be the law of the case. This
leaves for my consideration the separate issue on which
there is a divergence of opinion , i.e., whether there was
an independent unlawful refusal to bargain after the dis-
missal of the petition. On that issue, I am in accord with
the view of Chairman Herzog and Member Murdock that
there was no such violation, and therefore join them in dis-
missing the complaint in its entirety.
Member Styles, dissenting:
For the reasons set forth by the Trial Examiner, I would
find, contrary to the majority, that the Respondent failed
and refused to bargain in good faith on the subject of
pensions and employee benefits from the outset of the ne-
gotiations which began March 28, 1949. It follows therefore
that the strike of May 8, 1949, was an unfair labor practice
strike, and that, to the extent found by the Trial Examiner,
the Respondent' s refusal to reinstate the strikers upon re-
quest was discriminatory.
Because of the occurrence of these unfair labor prac-
tices, I would find, further, that the Respondent was not
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
privileged to refuse to bargain with the Union at any time
following the strike despite the pendency of the rival union's
petition. For, under well-established principles, no valid
question concerning representation could exist while the
Respondent's unfair labor practices remained un-
remedied,m and any loss of majority which might have
occurred could be attributed to the Respondent's unlawful
conduct. In the light of this holding as to the continuing
duty of the Respondent to bargain, I would also find, in
accord with the conclusion of the Trial Examiner, that the
Respondent's unilateral increases in rates of pay and in
employee benefits, constitute per se violations of Section
8 (a) (5) and (1) of the Act.
In view of the foregoing, I need not and do not pass
upon the other unfair labor practice issues considered
by my colleagues.
20 See N. L. R. B. v. Franks Bros., 321 U.S. 702; John Deere Plow Company, 82NLRB
69; Pacific-Gamble Robinson Co., 88NLRB 482; Metropolitan Life Insurance Co., 91NLRB
473.
ARMSTRONG & HAND, INC. and DISTRICT LODGE 37,
INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL.
Case No. 39-CA-272. April 28. 1953
DECISION AND ORDER
On February 25, 1953, Trial Examiner James A. Shaw
issued his Intermediate Report in the above-entitled pro-
ceeding, 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 affirma-
tive action, as set forth in the copy of the Intermediate Re-
port attached hereto. Thereafter, the Respondent filed excep-
tions to the Intermediate Report and a supporting brief.
The Board 1 has reviewed the rulings made by the Trial
Examiner at the hearing and finds that no prejudicial error
was committed. The rulings are hereby affirmed. The Board
has considered the Intermediate Report, the Respondent's
exceptions and brief, and the entire record in the case, and
hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner, with the following corrections, additions,
and modifications.
1. We agree with the Trial Examiner's finding that the
Respondent refused to bargain with the Union on December
19, 1951, and at all times thereafter, in violation of Section
8 (a) (5) and (1) of the Act. However, as the Intermediate
Report omits some, and does not discuss fully other, factors
we deem material to this finding, we set forth below some of
the crucial facts and the basis for our concurrence.
1 Pursuant to the provisions of Section 3 (b) of the Act , the Board delegated its powers in
connection with this case to a three - member panel [Members Houston, Styles, and Peterson].
104 NLRB No. 70.