Roegelein Provision Co.

830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ROEGELEIN PROVISION COMPANY and NATIONAL BROTHERHOOD OF PACKINGHOUSE WORKERS, CUA. Case No. 39-CA-183. June 20, 1952 Decision and Order On December 4, 1951, Trial Examiner Reeves R. Hilton issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in unfair labor practices, and recom- mending that the complaint be dismissed, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Union filed exceptions to the Intermediate Report and a supporting brief. No exceptions were received from the General Counsel. 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 Inter- mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner with the modifications noted below. We agree with the Trial Examiner's conclusion that the Respondent did not commit an unfair labor practice by entering into a contract with the AFL Meat Cutters while the representation petition of the Packinghouse Workers, CUA, was under investigation. For the rea- sons stated in William Penn Broadcasting Company 2 we hold, as did the Trial Examiner, that the same criteria normally applied by the Board in a representation proceeding determine the appropriateness of the unit sought by a union seeking to displace an incumbent as the bargaining representative, and that, absent an affirmative showing of the appropriateness of the new unit sought, an employer does not violate the Act by continuing to recognize the incumbent union. In this case, not only has the General Counsel failed to prove the appro- priateness of the unit sought by the Packinghouse Workers, but the evidence affirmatively establishes, as the Trial Examiner properly found, the appropriateness of the existing multiemployer unit repre- sented by the Meat Cutters. As the William Penn decision is decisive of the issues presented here, we find it unnecessary to pass upon, and therefore do not adopt, those portions of the Intermediate Report that discuss the history of the "Midwest Piping doctrine" 3 and comment upon other Board and court decisions concerning that doctrine. 1 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [ Chairman Herzog and Members Houston and Murdock]. 93 NLRB 1104. Midwest Piping and Supply Company, Inc., 63 NLRB 1060. 99 NLRB No. 130. ROEGELEIN PROVISION COMPANY Order 831 Upon the entire record in this case and pursuant to Section 10 (c) of the National Labor Relations Act, .as amended, the National Labor Relations Board hereby orders that the complaint issued herein against Roegelein Provision Company, San Antonio, Texas, be, and it hereby is, dismissed. Intermediate Report STATEMENT OF THE CASE Upon a charge, as amended, duly filed by National Brotherhood of Packing- house Workers, CUA, herein called the Packinghouse' Workers, the General Counsel of the National Labor Relations Board,' by the Regional Director for the Sixteenth Region (Fort Worth, Texas), issued a complaint dated April 20,4951, against Roegelein Provision Company, herein called the Respondent or the Com- pany, alleging that the Respondent has engaged in and is 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 Act, as amended, 61 Stat. 136, herein called the Act. Copies of the complaint, with copies of the charges and notice of hearing, as rescheduled,, were duly served upon the Respondent and Packinghouse Workers. In substance, the complaint alleges that on or about October 30, 1950, the Packinghouse Workers filed a petition with the Board for certification as the exclusive bargaining representative of all production and maintenance employees of the Company, excluding office and clerical employees, guards, watchmen, pro- fessional employees, and all supervisors as defined in the Act, as amended, and while the petition was pending the Company about December 7, 1950, entered into an agreement with the Amalgamated Meat Cutters and Butcher Workmen of North America and Local No. 171, AFL, herein called the Meat Cutters, cover- ing the above-mentioned employees. The complaint further alleges the foregoing unit to be appropriate for the purposes of collective bargaining, that a question of representation concerning the employees existed, that the Meat Cutters did not represent an uncoerced majority of, the employees and, therefore, the Company by executing the contract with the Meat Cutters under these circumstances con- tributed support to a labor organization and interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed under the Act, in violation of Section 8 (a) (1) and (2) thereof. About April 26, 1951, the Company filed'a motion to strike and dismiss the complaint, which is discussed below. On the same date the Company filed its answer to the complaint wherein it admitted certain allegations of the com- plaint but denied the commission of any unfair labor practices. Affirmatively, the Company avers that the unit set forth in the complaint is inappropriate since the Company for years has conducted its bargaining negotiations with the Meat Cutters oil the basis of a multiemployer unit, and in any event the Meat Cutters duly represented a majority of its employees in either a single or multi- employer unit. ' The General Counsel and his representative at the hearing are herein referred to as the General Counsel ; the National Labor Relations Board as the Board. 832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to notice, a hearing was held at San Antonio, Texas, September 5 and 6, 1951, before the undersigned Trial Examiner, duly designated by the Chief Trial Examiner. The General Counsel and the Respondent were represented by counsel and the Packinghouse Workers by its president and regional director. At the commencement of the hearing counsel for the Respondent moved to strike and dismiss'the complaint principally on the grounds that the Meat Cutters, being a party to the contract, is a necessary and indispensable part to the proceeding and that the unit set forth in the complaint is inappropriate for the purposes of collective bargaining. The motion was denied by the undersigned. However, it is noted that it was not necessary for the undersigned to specifically rule upon the first ground since the Meat Cutters moved for leave to intervene which was granted, and thereafter participated fully in the hearing. All parties participated in the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence pertinent to the issues involved. At the conclusion of the case counsel presented oral argument to the undersigned and were advised of their right to file briefs in the matter. Thereafter, the Respondent and Packinghouse Workers filed briefs which have been duly considered by the undersigned. Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The parties stipulated that the Respondent is a Texas corporation and main- tains its office and place of business at San Antonio, Texas, where it is engaged in the business of slaughtering, processing, packing, and distributing meat and meat products. Its annual sales are in excess of $1,000,000, of which a substantial amount represents shipments to customers outside the State of Texas. The Respondent admits that it is engaged in commerce as defined in the Act, and the undersigned so finds. H. THE LABOR ORGANIZATIONS National Brotherhood of Packinghouse Workers, CUA, and Amalgamated Meat Cutters and Butcher Workmen of North America, and Local Union No. 171, AFL, respectively, are labor organizations admitting to membership em- ployees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. The history of collective bargaining at the Company's plant, William M. Roegelein, president of the company, testified that during 1941 the Meat Cutters, after organizing the employees of the Company as well as those of Mission Provision Company of San Antonio (herein called Mission), made simultaneous demands for recognition upon both the Company and Mission.' Roegelein and his attorney thereupon conferred with officials of Mission, "dis- cussed the problem jointly," and then met in joint conference with the Meat Cutters. Each of the companies recognized the Meat Cutters as the exclusive representative of all of the production and maintenance employees of both 2 On August 12, 1941, the Meat Cutters filed separate representation petitions against the Company and Mission, cases numbered 16-R-303 and 304, respectively The petitions were withdrawn on August 18, 1941, because the companies voluntarily granted recognition. ROEGELEIN PROV ION COMPANY 833 companies , excluding office employees, guards, salesmen, and supervisory em- ployees. In the course of the meetings the Meat Cutters submitted a proposed agreement the terms of which were discussed and considered by representatives of the companies, who thereafter engaged in joint negotiations with the Meat Cutters. ltoegelein stated that during the negotiations tht Meat Cutters resorted to strike action at the plants of the respective companies which extended over a period of several months and terminated upon the companies executing sepa- rate, but identical, collective bargaining agreements with it. From 1941 to 1946, the Company and' 1llission have had successive and continuous agreements with the Meat Cutters, each of which was negotiated and executed in the manner set forth above In December 1946, the Company and Mission executed identical agreements with the Meat Cutters effective to December 15, 1948, and thereafter from year to year, subject to the right of either party to terminate the same upon the giving of a 30-day notice prior to the expiration date thereof. During the summer of 1048, the Meat Cutters had separate agreements with two other packing firms in San Antonio, Berry Packing Company and Alamo Dressed Beef Company (herein called Berry and Alamo, respectively), which had expired, or were about to expire. At the same time, the 1946 agreements be- tween the Meat Cutters and the Company and Mission , which were then in effect, were reopened for further negotiations. Representatives of the four packers, namely, the Company, Mission, Berry, and Alamo, thereupon participated in joint negotiations with the Meat Cutters and as a consequence the parties reached agreement on identical terms and conditions of employment covering the production and maintenance employees at all of the plants. On July 14, 1948, the Company and Mission executed separate supplemental agreements to the 1946 contracts and Berry and Alamo signed separate new agreements. Each of the above agreements was to remain in effect until December 15, 1949, and thereafter from year to year, subject to the right of either party to ter- minate the same upon 30 days' notice in writing prior to the expiration date. Neither the companies nor the Meat Cutters exercised their right to terminate the agreement in 1949, so the contract was automatically renewed for a period of 1 year. However, in 1950, the Meat Cutters served timely notice of their intention to terminate the agreements. George G. Clifton, attorney, testified that he has represented Mission since its inception and that in the late summer or fall of 1941, the Meat Cutters conducted a successful organizational campaign among the employees of the Company and Mission and subsequently requested recognition by the companies. Clifton and Theo. F. Weiss, attorney for the Company, from the beginning met jointly with representatives of the Meat Cutters and after several meetings recogmz2d it as the exclusive bargaining agent for the employees of the companies. Clifton and Weiss engaged in joint negotiations with the Meat Cutters and while these nego- tiations were in progress the Meat Cutters simultaneously struck the plants of each company. The strike lasted about 6 weeks and was terminated when the companies executed separate but identical agreements with the Meat Cutters. During the period 1942 to 1945, Weiss was serving with the Armed Forces and, in his absence, Clifton represented both the Company and Mission in their negotia- tions and dealings with the Meat Cutters. In the spring of 1948, the contracts between Berry and Alamo and the ?seat Cutters expired and the attorneys representing those companies requested advice from Clifton and Weiss in respect to their contracts. At the same time the Meat Cutters asked that its contracts with the Company and Mission be reopened, which. was acceptable to these companies. Representatives of the four companies orally agreed "to bargain together as a unit and sign identical contracts," whereupon 834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD joint negotiations were conducted with the Meat Cutters and thereafter on July 14, 1948, each of the companies executed separate but identical contracts with the Union. C. D. Berry, president of Berry Packing Company , stated that his Company had an agreement with the Meat Cutters which it alone negotiated , and which expired in 1948. Upon the expiration thereof Berry met with the other packers "because we were mutually discussing our problem and I wanted to get in there with them and negotiate jointly where we could all be on a comparable basis." Berry was a party to the joint negotiations that terminated in the agreement signed in July 1948, and since that date the company has had continuous agreements which were negotiated on the same basis. Russell I. Oppenheim, president of Alamo, said that about April 1946 his ,company, as a result of separate negotiations , entered into an agreement with the Meat Cutters which agreement remained in effect until 1948, In the latter period, Alamo with the Company, Mission, and Berry engaged in joint collective bargain- ing negotiations with the Meat Cutters and on July 16, 1948, each of the com- panies signed separate but identical agreements with the Union . Since that date the Alamo has conducted its negotiations with Meat Cutters in like manner. Allen Williams, international representative of the Meat Cutters , stated that he first came to San Antonio in 1943, at which time his union had agreements with only two plants in the city , namely, the Company and Mission. Williams further stated that he had been informed that these companies had been organ- ized simultaneously in 1941, and had jointly negotiated agreements with his organization. From 1943 to 1948, Williams conducted joint negotiations with the companies except for a period of several years, when he was out of the area. Williams also engaged in separate negotiations with Berry and Alamo, appar- ently in 1946, and had agreements with these companies which expired in the summer or fall of 1948. About the time of the expiration of these agreements, Williams notified the Company and Mission that he desired to reopen the current contracts with them in order to obtain a uniform agreement with all four of the companies. Representatives of the companies conferred jointly with Williams and in July 1948, the Meat Cutters signed supplementary agreements with the Company and Mission, and executed new agreements with Berry and Alamo. While separate contracts were executed the terms thereof were identical. Admittedly , no formal association or organization has ever existed among the companies . At the commencement of bargaining negotiations in 1941. represent atives of the Company and Mission , according to Clifton, orally agreed to "bargain together as a unit" and "upon their positions with reference to the various elements of the contract ." In the spring of 1948, representatives of Berry and Alamo "agreed that they would stand by the joint agreement of the four packers as to terms " of any contract with the Meat Cutters. Clifton de- clared that the oral understanding , while "a firm binding agreement," embraced no penalties for failure to abide by the same and that the individual companies were free to accept or reject the contract as negotiated with the Meat Cutters. The four companies are all located in San Antonio and are the principal inde- pendent packers in the area . Together they employ approximately 700 employees who apparently confine their work activities to these particular employers, altliough there is no real "interchange" of employees in that the companies maintain or operate any transfer system. There are several other plants engaged in the processing or distributing of meat products in the area , whose operations are substantially different, according to the companies , but they have not partici- pated in the joint negotiations , nor is any attempt made to include them in the ROEGELEIN PROVISION COMPANY 835 group unit. The four companies as well as the Meat Cutters expressly declared they desired to continue their bargaining negotiations on the basis of a multi- employer unit. B. The demand for recognition by the Packinghouse Workers On October 20, 1950,' Thomas Lillard, regional director for the Packinghouse Workers, sent a letter to the Company stating that it had been designated by a majority of the Company's production and maintenance employees as their bargaining representative and requested that an early meeting be held for the purpose of negotiating an agreement. Lillard also advised the Company that the execution of an agreement with any other labor organization pending the resolution of the question concerning representation would be considered an unfair labor practice. The letter was acknowledged by Weiss, who said that the Company was willing to meet with the Packinghouse Workers, and asked Lillard to submit a proposed date, or dates, for such a meeting. On October 30, Lillard, prior to responding to Weiss' communication, filed a petition for certification with the Board,4 alleging that the Company had declined to grant recognition to the Packinghouse Workers on October 26, in a unit composed of production and maintenance employees exclusive of office and clerical employees, guards, watchmen, professional employees, and all super- visors as defined in the Act. The petition further discloses that another labor organization, the Meat Cutters, was recognized by the Company on "December 15, 1950." The Regional Director promptly notified the Company and the Meat Cutters, in writing, of the filing of the petition. In turn both the Company and the Meat Cutters acknowledged receipt of the notice on November 3 and 4, respectively. In addition, the Meat Cutters moved for leave to intervene in the proceeding and submitted proof of interest therein. The request for interven- tion was granted on November 6. Lillard, by letter dated November 5, informed Weiss that he could meet with the Company, on 48 hours' notice, at any time within the next 2 weeks. How- ever, Lillard declared that it was "necessary" that the Company grant written recognition to the Packinghouse Workers as the exclusive representative of its production and maintenance employees, otherwise he would "go through with the petition," which had already been filed. On November 8, Weiss wrote Lillard to the effect that the Company was willing to meet with the Packinghouse Workers but refused to grant recognition in view of the Company's existing contract with the Meat Cutters as well as its doubt concerning the appropriateness of the bargaining unit. C. The Company's renewal of its agreement with the Meat Cutters As appears above, the Company, and the three other packers, had separate agreements with the Meat Cutters, which expired on December 15. Prior to that date Williams had given timely notice of the Union 's intention to terminate these agreements.5 Williams said that before the expiration date of the agreements , apparently about October , he learned that the Packinghouse Workers had signed up some 3 All dates refer to 1950, unless otherwise stated. Case No. 39-RC-260. ° Williams did not state precisely when the notice was given, nor was a copy of the same introduced at the hearing. However, he stated that in 1949 he gave the com- panies a 60-day notice to reopen the agreements. The companies did not question the validity of the notice at the hearing 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the employees of the Company, so he contacted his members and, over a period of approximately 2 weeks, obtained signed authorization cards from about 125 employees. In order to convince the Company that he represented a majority of the employees Williams, during October, presented the authorization cards to Roegeleinv and. G. L. Childress, vice president and general manager of the Com- pany. Childress said the cards were voluntarily presented about the middle of October and he recognized the signatures of many of the employees thereon. Childress-hastily checked the cards and, while he did not count the same, esti- mated that Williams had between 125 and 130 cards. At that time the Company had bei;ween 150 and 175 production and maintenance employees, so the Company determined to continue to recognize the Meat Cutters as the exclusive repre- sentative 'of all such employees. In November Cliton, acting on behalf of all four companies, negotiated with Williams•over•a period of 2 or 3 weeks and on December 7 each of the companies signed identical contracts. These agreements, which provided for wage increases and checkoff of union dues, are effective until December 15, 1952, and thereafter from year to year, unless terminated on 60-day notice by either party and subject to the right of either party to reopen the agreements in respect to wages on December 15, 1951, on 60-day notice. On January 16, 1951, the Packinghouse Workers filed a charge against the Company alleging violation of Section 8 (a) (1) and (3) of the Act, which was amended on February 2, 1951, to include a violation of Section 8 (a) (2) thereof. Contentions of the Parties •q The General Counsel asserts that at least on November 8, as evidenced by Weiss' letter of that date, a question concerning representation had arisen and that thek Company was fully aware of the demands made by the Packinghouse Workers and the fact that it had filed a petition for certification with the Board. Accordingly, the Company by executing the renewal agreement with the Meat Cutters, covering the employees in the bargaining unit sought by the Packing- house Workers, while the petition was pending thereby engaged in a violation of the Act under the Midwest Piping doctrine.' The General Counsel further asserts that when the contract was executed the Meat Cutters did not represent an uncoerced majority of the employees in the bargaining unit. The Company contends that the petition raised no real question of representa- tion since the single-employer unit described therein was inappropriate in the light of the prior history of collective bargaining with the Meat Cutters on the basis of a multiemployer unit. The Company also contends that the General Counsel failed to adduce any evidence in support of the allegations in his com- plaint as to the appropriateness of the single-employer unit and that the Meat Cutters did not represent an uncoerced majority of the employees therein. Under the circumstances, the Company argues that, in accordance with the principles established in the Willwam Peon Bi oadcastrng G'oinpany case,' the mere filing of the petition did not preclude the Company from renewing its agreement with the Meat Cutters. Conclusions Primarily, then, the question involved is whether the Midwest Piping rule, properly interpreted and applied, requires the conclusion that the Company in pursuing the course of action set forth above thereby committed unfair labor practices as alleged in the complaint. e Midwest Piping and Supply Company, lime., 63 NLRB 1060. a 93 NLRB 1104. ROEGELEIN PROVISION COMPANY 837 In the llttdwcest Piping case, supra, the Board held that an employer by exe- cuting a "union shop" agreement with a union in the face of representation proceedings initiated by a rival organization which was pending before the Board constituted unlawful assistance to the contracting union in violation of the rights guaranteed to his employees under the Act. Essentially , the rule is simply a specific application of the principle requiring employer neutrality in situations where one of the rival unions files a petition with the Board, which action establishes the existence of a question concerning representation and puts the employer on notice thereof Subsequently , the rule was extended to include within the prohibition the signing of nonclosed -sl1op contracts with unassisted labor organizations ( Radio Corporation of America, 74 NLRB,1729 ; National Labor Relations Board, Twelfth Annual Repoit ( 1947), p 26 ) However, in Ensher, Alexander & Barsoom , Inc,' the Board decided that where the company executed an agreement with an affiliate of the AFL shortly after it had defeated a rival independent union in a Board -conducted election , and the independent union became defunct, "in actual fact no real question concerning representation " was involved . The Board also pointed out that the company's bargaining history with the AFL had been continuous for approximately 5 years and under the circumstances the execution of the contract should not be re- garded as unlawful, "even though it be technically true that the representation proceeding was still pending before the Board ." In holding that the contract did not come within the condemnation of the Midwest Piping case, the Board stated : "That doctrine , necessary through it is to protect freedom of choice in certain situations, can easily operate in derogation of the practice of continuous collective bargaining , and should , therefore , be strictly construed and sparingly applied." Further limitations upon the rule have been recognized by the Board. Thus, when the union filing the petition prevented a prompt determination of the representation question by submitting groundless and frivolous unfair labor pi actice charges , the Board ruled that the execution of a contract between the employer and the rival union prior to the resolution of the representation question was not an unfair labor practice . ( Eaton Manufacturing Company, 76 NLRB 261 ; Thirteenth Annual Report ( 1948 ) pp. 52-53 ) Similarly, a rival claim, made during the certification years, does not raise a question of representa- tion within the meaning of the rule. ( Lift Trucks, Inc., 75 NLRB 998.) On December 7, 1948, the Board entered its decision in The Standard Steel Spring Company case ( 80 NLRB 1082 ). There the company constructed or remodeled its plant and in the course of this operation various unions of the AFL and CIO agreed to refrain from raiding one another so that the former were to have a free hand in representing the employees engaged in the con- structing work and when this work was completed and production commenced the latter would be free to organize the production and maintenance workers. About April 1, 1947, the company hired its full complement of nine employees for its powerhouse, but at that time it was not ready for production and had not commenced hiring production employees . Shortly after the above date the Inter- national Union of Operating Engineers , AFL, requested recognition for the power- house employees , which request was refused by the company because it preferred a single plant-wide unit of all production and maintenance workers. The Engi- neers thereupon filed a petition for certification , upon which a hearing was held on May 28, 1947 , and on December 11, 1947, the Board issued its decision wherein it found the unit claimed to be appropriate and directed that an election be held. In the meantime , the company commenced production during July 1947, and the United Steelworkers of America , CIO, after conducting an organizational drive, 8 74 NLRB 1443. 215233-53--54 838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD requested recognition , about August 8, as the exclusive representative of all the production and maintenance employees including those in the powerhouse. The Steelworkers, at the company 's demand, presented signed authorization cards showing that it represented a substantial majority of the employees in the pro- posed unit including the nine powerhouse employees , each of whom signed cards subsequent to the date of their designation of the Engineers as their bargaining representative. The company checked the cards against its payroll and there- after recognized the Steelworkers as the exclusive bargaining agent for all the production and maintenance employees including powerhouse workers and on August 19 signed an agreement with the union covering all the employees in that unit. The Board held that the case was governed by the Midwest Piping rule and ordered the company to cease recognizing the Steelworkers as the representatives of any of the powerhouse employees and from giving effect to the agreement of August 19; affirmatively it directed the company to withdraw and withhold recog- nition from the Steelworkers until certified by the Board. The Court of Appeals for the Sixth Circuit in denying the Board's petition for enforcement of its order, N. L. R. B. v. Standard Steel Spring Company, 180 F. 2d 942, 945-946, stated : Whatever may have been the situation six months before the company recognized the Steelworkers union as the bargaining representative of its employees, is here irrelevant. There can be no question, from the record, that at the time respondent company recognized the Steelworkers, that union represented the great majority of all respondent's employees, as well as all of the powerhouse employees . . . The mere circumstance that there is pending an undisposed proceeding before the Board for the determination of the employees' choice of representative, based on a petition brought by one union, does not convict an employer of unfair labor practices for recog- nizing another union as the employees' representative on clear proof of such majority representation, submitted several months after the inception of the representation proceedings. In August 1950, the Board issued its decision in the Hoover Company case (90 NLRB 1614). There the company upon the expiration of its agreement with- drew recognition from the union because of its failure to comply with the non- Communist affidavit provisions of the Act and on June 10, 1948, the union re- sorted to strike action and also instituted a boycott of the company's products. On July 30, the strike was abandoned and the union took no further overt action in support of its boycott after August 2. While the strike and boycott were in effect, a rival independent union, on July 7, filed a representation petition with the Board and on August 24, the union was certified following an election held pursuant to a consent-election agreement. In support of its action in dis- charging union members for failure to terminate the boycott, the company argued that the objective of the boycott was illegal because it was instituted after the rival union had filed a representation petition and under the Midwest Piping doctrine the company was precluded from recognizing and bargaining with the union. The Board stated that under the rule the employer 's exclusive recogni- tion of one of two rival organizations violates the Act only if at the time recog- nition is granted the question concerning representation raised by the petition is still pending. However, the Board declared that circumstances might occur which would remove the representation question such as withdrawal of the petition or dismissal by the Board, or the granting of recognition to each of the claimants on a members-only basis. The Board refused to apply the Midwest Piping rule and held that the boycott to compel recognition, during the period ROEGELEIN PROVISION COMPANY 839 prior to August 24, was protected under Section 7 of the Act a Chairman Herzog pointed out that he was reluctant to apply the Midwest Piping doctrine for the further reason that recent decisions in N. L. R. B. v. Flotill Products, Inc. (180 F. 2d (C. A. 9)) and Standard Steel Spring Company, supra, indicate that the doctrine "is far from being accepted as unimpeachable authority," and in the Flotill case the court cautioned against the "indiscriminate application" of the rule. In the William Penn Broadcasting Company case, supra, the charging union, International Brotherhood 'ofElectrical Workers, filed a representation petition with the Board for certification as the bargaining representative of the com- pany's "broadcast technicians and engineers." On February 13, 1950, while the petition was pending, the company renewed its contractual relations with an- other union which for 12 years had been representing a unit of the company's production employees that included the technicians claimed in the petition. The Trial Examiner found that by entering into the agreement in the face of the pending petition the employer violated the Act under the Midwest Piping rule. He did not, however pass upon the company's contention that at the time of the execution of the agreement no valid question concerning representation existed because the unit sought in the petition was inappropriate. The Board in revers- ing the Trial Examiner said : The construction placed upon the Midwest Piping doctrine by the Trial Examiner tinder the circumstances of this case, would, in our opinion, operate in derogation of the practice of continuous collective bargaining which the Act was designed to encourage in the interest of industrial stability. Moreover, such a broad application of the doctrine as here proposed by the Trial Examiner would serve only to deprive employees of the benefits of an uninterrupted bargaining relationship whenever a clearly unsupportable or specious rival claim is made upon an employer. In conformity with these views, we conclude that the pendency of a petition for certification imposes no duty upon an employer, to refrain from continuing exclusively to recognize and deal with an incumbent bargaining representative, such as we have here, unless the petition has a character and timeliness which create it real question concerning representation. The Board further stated that the existence of a representation question is determinable by the same criteria normally applied by the Board in finding such .a question to be present before proceeding to an election and one of the essential elements is that the petitioning union , seeking to displace an incumbent, must assert its claim as to an appropriate unit of employees. Concluding, the Board stated that it was the duty of the General Counsel to prove that a real question concerning representation existed when the contract was executed and to pro- ^duce evidence as to the appropriateness of the unit sought in the petition. Since the General Counsel failed to carry this burden of proof, the complaint was dismissed by the Board. This case «as subsequently reviewed by the Sixth Circuit in The Hoover Company v. N L R B., 191 F 2d 380 The court held that the objective of the boycott was illegal, -therefore the company had the right to discharge certain employees who had engaged in such action while in the employ of the company However, it seems clear that the decision -does not conflict with the court's prior decision in the Standard Steel Spring case, Supra, where it held that the mere pendency of a representation petition did not render recogni- tion of at rival union unlawtul While the Standard Steel Spring case was extensively considered in the briefs before the court, in the Hooter case the court in no way limited or restricted its holding in the prior case It follows therefore that the court simply held that the critical determination in a Midwest Piping situation is not the pendency of a petition but the existence of a real question concerning representation. 840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In consideration of the foregoing authorities the undersigned has no difficulty reaching the conclusion that the mere filing of a representation petition by the Packinghouse Workers did not preclude the company from continuing to recog- nize and negotiate with the Meat Cutters as the exclusive representative of the employees in question. As plainly stated in the William Penn Broadcasting case, supra, the petition, in an incumbent union situation, must raise a real question concerning repre- sentation and one of the factors to be established by the General Counsel is the appropriateness of the unit sought by the petitioning union. Here, neither the General Counsel nor the Packinghouse Workers adduced any evidence in sup- port of the unit allegation in the complaint. On the other hand, the Respondent and the Intervenor produced evidence, which is uncontradicted and credited by the undersigned, showing that since 1941 the Company and Mission have en- gaged in joint negotiations with the Meat Cutters and have continuously had, separate, but identical, contracts with the Union. In 1948, at a time when these companies were under current agreements, contracts between Berry and Alamo- and the Meat Cutters expired or were about to expire. Thereupon officials of Berry and Alamo met with those of the Company and Mission to discuss their "mutual problems" and for the purpose of engaging in joint negotiations in re- spect to contract terms. Williams likewise was anxious to conduct negotiations in this manner so he served notice upon the Company and Mission to reopen their- contracts. Joint conferences were then held between the parties with Williams representing the Meat Cutters and Clifton acting as principal representative for the four companies. As a consequence of these negotiations the Company and Mission signed supplemental agreements, while Berry and Alamo executed new contracts, each of which was identical in terms and effective until Decem- ber 15, 1949, subject to the provisions of an automatic renewal clause. Although Williams gave notice of his intention to reopen the agreements in 1949," appar- ently no negotiations were conducted, but in any event the agreements, in ac- cordance with the automatic renewal clause, were extended to December 15, 1950. As appears above, the Packinghouse Workers filed a representation petition against the Company on October 30, and while the petition was pending, the- Company together with the other three packers renewed its agreement with the- Meat Cutters. Of course, the Board has for many years recognized the right of independent employers to engage in joint collective bargaining negotiations, either as mem- bers of an association or by individual designations of a joint bargaining agent and where requested will establish a multiemployer unit. Speaking upon this- subject the Board, in its Fourteenth Annual Report (1949) (pp. 35-37) stated: The Board has continued to protect multiplant and multiemployer units which have stood the test of time... . In determining whether or not a proposed unit consisting of several inde- pendent and competing employers is appropriate the Board gives special weight to the history of collective bargaining. It has been the Board's policy for several years to find a multiemployer unit appropriate where all the employers in the group, either as members of an association or otherwise,- Williams conceded be filed separate petitions against the companies in order to expedite- the resolution of the question that the companies, in addition to the 60-day notice given, by him, were also entitled to 30 days under the provisions of the agreements The records of the Board disclose that petitions, numbered 39-RC-150, 151, 152, 153, were filed against the respective companies on December 12, 1949, and were withdrawn on January- 12, 1950, for the reason that no question concerning representation, existed. ROEGELEIN PROVISION COMPANY 841 have jointly engaged in collective bargaining with a single union repre- senting all their employees. In accordance with this policy the Board in Johnson Optical Company, at al.,ll found a multiemployer unit appropriate despite the fact that the employers concurred in the petitioning union's request for separate units, where the em- ployers had bargained for 13 years as a group and their agreement with the union for separate units was unaccompanied by any indication they intended to abandon their concerted course of action on labor relations. Further, in Associated Shoe Industries of Southeastern Mass., Inc., at al.,12 the Board held that the "essential element" for establishing a multiemployer unit "is partici- pation by a group of employers whether members or nonmembers of an associ- ation, either personally or through an authorized representative, in joint negoti- ations." However, the Board cautioned that participation in joint negotiations resulting in the employers signing "significantly divergent contracts" would not support a finding of an appropriate multiemployer unit. The foregoing principles were plainly restated by the Board in Bunker Hill and Sullivan Mining and Concentrating Company, et al. (89 NLRB 243). In this case the electricians petitioned for a craft unit on a multiemployer basis em- bracing about 22 employers . Prior thereto the companies had separate agree- ments with a rival industrial union which included the electricians, and the employers urged that the unit sought by the electricians was inappropriate as to the particular craft as well as the scope thereof. The Board found the elec- trical employees to be "a readily identifiable group" and a proper unit for the purposes of collective bargaining. The Board further found that the unit should be on a multiemployer basis in the light of the prior history of collective bar- gaining between the employers and the rival union. The history reveals that "no Employer association as such" existed, but for 7 years representatives of the employers and the rival union met at the same time and place and engaged in negotiations which resulted in the signing of separate but identical contracts between the various employers and the union. The companies contended these negotiations were "concurrent" rather than "joint" since no employer authorized anyone to bind him, except his own representative; each employer reserved the right to insist on different provisions during the negotiations, and to determine whether he would sign any agreement reached. Similarly, after the execution of the contracts, all grievances arising thereunder were processed on an indi- vidual-employer rather than a multiemployer basis. The Board, after rejecting the contention that the employers had engaged in "concurrent" as distinguished from "joint" bargaining stated held that the essential element for establishing n nmltiemployer unit is participation by a group of employers in joint bargain- ing negotiations. Under all the circumstances the Board stated that the par- ticipating employers,13 "manifested a desire to be bound in collective bargaining by group rather than by individual action" and, without combining into a formal association, conducted negotiations on a joint basis "accordingly, we find therefore that there exits an established pattern of multiemployer bargaining which controls the type of unit appropriate. . . . The facts in this case clearly establish, and the undersigned finds, that the Company and Mission, for approximately 10 years, have conducted their collec- tive bargaining relations with the Meat Cutters on the basis of joint negotiations. 1185 NLRB 895. See also, Fifteenth Annual Report ( 1950), pp. 47-48. 12 81 NLRB 224 13 The case was dismissed as to one employer who did not participate in the joint nego- tiations 842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD About 2 years ago Berry and Alamo abandoned individual bargaining with the Meat Cutters and joined with the Company and Mission in negotiations with the union. Obviously these negotiations have been successful for the latter companies have had continuous identical agreements with the Union since 1941, and all four companies have had like agreements from 1948 to the present time. Further, not only is there a complete absence of any evidence indicating a desire on the part of the companies , or the union , to discontinue group bargaining but, on the contrary , their representatives uniformly expressed their preference to continue negotiations on that basis. Under all the circumstances , the under- signed finds that a multiemployer unit consisting of all production and mainte- nance employees of the four companies, with the customary and statutory exclusions, is, and was at all times material herein, appropriate for the purposes of collective bargaining and, therefore , the single-employer unit alleged in the representation petition and the complaint is inappropriate for such purposes. Consequently, at the time the Company and the Meat Cutters renewed their contract no real question concerning representation existed, hence the Company in executing the same did not engage in any unfair labor practice. The General Counsel also argues that the Meat Cutters did not represent an uncoerced majority of the employees and much time was devoted at the hearing to the fact that Williams presented authorization cards to the Company prior to the signing of the contract . It is undisputed that when Williams learned some of his members had signed authorizations for the Packinghouse Workers he contacted the members and obtained current authorizations and these cards he exhibited to the Company in order to demonstrate his present majority. There is no evidence whatsoever to indicate that the Company gave any assistance to Williams in this respect or that the Union resorted to any coercive tactics in obtaining the same. The evidence therefore not only fails to support the con- tention of the General Counsel but , on the contrary , convinces the undersigned that the Meat Cutters did in fact represent a majority of the employees at that time. Finally, the General Counsel seemingly urges that the Company by granting an increase in wages and a checkoff of union dues thereby rendered illegal support to the Meat Cutters . Under the circumstances the bare granting of these benefits to the Meat Cutters is wholly insufficient to warrant the conclusion that the Company in doing so was prompted by any ulterior motives. (Of. The William Penn Broadcasting case, supra.) Upon the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAW 1. The operations of the Respondent , Roegelein Provision Company, at its plant located in San Antonio, Texas, occur in commerce , within the meaning of Section 2 (6) and (7) of the Act. 2. National Brotherhood of Packinghouse Workers, CUA, and Amalgamated Meat Cutters and Butcher Workmen of North America and Local Union No. 171, AFL, are labor organizations within the meaning of'Section 2 (5) of the Act. 3. The Respondent , Roegelein Provision Company, has not engaged in unfair labor practices as alleged in the complaint, within the meaning of Section 8 ( a) (1) and (2) of the Act. 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