Associated Spring Corp.

660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. International Union, United Automobile Workers of America, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the employment of Harold L. Mobley, the Re- spondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed by Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] WILLIAM D. GIBSON CO ., DIVISION OF ASSOCIATED SPRING CORPORATION and DIE AND TOOL MAKERS LODGE No. 113, INTERNATIONAL ASSOCIA- TION OF MACHINISTS, AFL and UNITED STEELWORKERS OF AMERICA, CIO, AND UNITED STEELWORKERS OF AMERICA , CIO, LOCAL UNION No. 3485. Case No. 13-CA-1256. October 29,195.4 Decision and Order On September 15, 1953, Trial Examiner Robert E. Mullin issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint, except for two minor instances of interrogation not warranting a remedial order, and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel and the Ma- chinists filed exceptions to the Intermediate Report and supporting briefs. The Respondents and the Steelworkers filed briefs in support of the Intermediate Report.' The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner insofar as they are consistent with this Decision 2 I In addition, the Respondent also filed a brief in {eply to the General Counsel's and the Machinists' exceptions and briefs. The reply brief is hereby accepted. 3 The Intermediate Report contains certain minor misstatements or inadvertencies, none of which affects the Trial Examiner's ultimate conclusions . Accordingly, we note the following corrections : The Board held a hearing on the petition in the representation case involved herein •on September 22 and 23, 1952. After receiving the Steelworkers' telegram dated September 19, 1952, the Respondent's general manager, Goff, called a meeting of the employees named in the said telegram on September 23, not on September 21. 110 NLRB No. 88. WILLIAM D. GIBSON CO. 661 1. We agree with the Trial Examiner that the Respondent did not violate Section 8 (a) (1), (2), or (3) of the Act by executing the collective-bargaining agreement with the Steelworkers on July 28 covering the Respondent's production and maintenance workers, af- ter the Machinists had requested recognition for the Respondent's toolroom employees and had filed a representation petition with thi, Board. For the reasons stated below, the majority believes that the Midwest Piping doctrine,' relied upon by the General Counsel and the Machinists to establish that the Act has been violated, should not be applied to the situation here presented 4 As noted in the Intermediate Report, the Steelworkers, since Board certification in January 1945, has been the exclusive bargaining repre- sentative of the Respondent's approximately 500 production and main- tenance employees, including the toolroom employees whom the Ma- chinists desires to represent. Before expiration of the Steelworkers' contract on April 1, 1952, and several months before the Machinists began organizational activities at the Respondent's plant, the Re- spondent and the Steelworkers instituted negotiations for a new agreement and reached accord on all provisions of a new contract except wages and union security. With respect to these two matters, the parties had been following the pattern established in the "Big Steel" contracts. As "Big Steel" had not executed new contracts at the time the Respondent and the Steelworkers were negotiating to replace their April 1 agreement, they deferred further negotiations on wages and union security and orally extended their expiring agree- ment on a day-to-day basis pending execution of the new "Big Steel" contracts. On July 25, 1952, the Machinists requested recognition as the bar- gaining representative for the Respondent's approximately 30 tool- room employees and filed a representation petition with the Board. At about that time, "Big Steel" concluded new contracts and, on July 28, the Respondent and the Steelworkers reduced their completed bar- gaining agreement to writing. The following morning the Respond- ent received a copy of the Machinists' representation petition from the Board, and thereafter withheld recognition from the Machinists. Sub- sequently, the Board held a hearing in the representation case and then issued a Decision and Direction of Election,5 ordering a self-deter- 3 The doctrine (lei ives its name from the case entitled Midwest Piping & Supply Co, Inc , 63 NLRB 1060. 4In view of our determination herein , we find it unnecessary to pass upon the Trial Examiner 's grounds for dismissing the 8 ( a) (1), (2), and ( 3) allegations of the complaint. ITVilliani D. Gibson Company, Division of _4s,ociated Spring Coiporatson , Case No. 13-RC-2876, issued November 4, 1952 (not published in printed volumes of Board Deci- sions and Orders). 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mination election for the toolroom employees.6 Instead of proceeding to an election, the Machinists filed the charge in this case. As indicated above, the General Counsel and the Machinists con- tend that the Midwest Piping doctrine requires a finding that the Respondent violated the Act by executing the July 28 agreement with the Steelworkers at a time when the Machinists' representation peti- tion was pending. We find no merit in this contention. The Midwest Piping doctrine, as enunciated in the named case and as developed in later cases,' established a general prohibition against employer execution of a bargaining agreement with 1 of 2 or more rival unions making conflicting representation claims for his employ- ees, where representation proceedings were pending before the Board. Under that doctrine, execution of a bargaining contract in the circum- stances indicated constituted interference with the Board's function of resolving the representation question and also a breach of the Employer's obligation to remain neutral. Upon reexamination of the doctrine, we are persuaded that the policies of the Act will best be served if the Midwest Piping doctrine is not applied to situations where an employer contracts with a labor organization which is an incumbent union actively representing the employer's employees. Where, as here, a labor organization has been representing an em- ployer's employees, stability in industrial relations, the primary objec- tive of the Act,8 requires that continuity in collective-bargaining agree- ments be encouraged, even though a rival union is seeking to displace an incumbent. Furthermore continuance of a preexisting collective- bargaining relationship%between an incumbent union and an employer does not encroach upon the right of the employees to change their bargaining representative. For, as the Board has uniformly held- and indeed decided in the representation case here involved-any contract entered into by an incumbent union and an employer after a rival union has made a timely representation claim does not bar an election in the representation proceeding. Thus, rejection of the Midwest Piping doctrine in the circumstances of this case does not interfere with the toolroom employees' right to replace their bargain- ing representative in an appropriate Board proceeding, and it also permits the employees to enjoy, without interruption, the benefits of a previously established bargaining relationship. We conclude therefore, that in the interest of industrial stability, which uninterrupted collective bargaining achieves, an employer should be permitted to continue recognition of an active, incumbent 6 The Board added several toolmakers in other departments to the unit originally sought by the Machinists and excluded certain noncraft employees in the toolroom whom the Machinists sought to include '' For example , Wtilltiam Penn Broadcasting Company , 93 NLRB 1104 ; Ensher, Alex- ander & Barsoom, Inc , 74 NLRB 1443: and I. Spiewak & Sons, 71 NLRB 770. 8 Colgate-Palmolive-Peet Co v. N L R. B , 338 U. S 355 WILLIAM D. GIBSON CO. 663 labor organization and to contract with it until such time as the union is displaced as the bargaining representative of the employer's em- ployees in an appropriate Board proceedings.9 In conformity with the views expressed above, we find that the Respondent did not violate Section 8 (a) (1), (2), or (3) of the Act by continuing to deal with the Steelworkers and by signing the July 28 contract. 2. In view of our conclusion that the Respondent's July 28 contract with the Steelworkers was valid, we find that it was not unlawful for the Respondent to discharge those employees who did not comply with the union-security provisions of the agreement, by failing to maintain membership in good standing in the Steelworkers. For this reason, we also find that the Respondent did not violate the Act by requiring the reinstated employees to regain their good standing in the Steelworkers and to waive their claims to back pay as conditions for reinstatement. 3. We have found that in the circumstances of this, case the Respond- ent was legally entitled to continue its contractual recognition of the Steelworkers, notwithstanding the pendency of the Machinists' repre- sentation petition. It follows that, absent unlawful conduct, the Re- spondent should not be required to recognize the Machinists. until such time as that organization may be certified by the Board as the bargain- ing representative of the Respondent's toolroom employees. We find therefore that the Respondent lawfully refused to recognize the Ma- chinists without a Board certification. 10 Accordingly, we shall dismiss the 8 (a) (5) allegations of the complaint.h1 [The Board dismissed the complaint.] MEMBER RODGERS, dissenting in part : On July 25, 1952, the IAM, holding cards from a majority of all the employees in the Employer's toolroom, requested the Employer to bar- gain with that Union for these employees. On the very same day the IAM backed and substantiated that request by filing a petition for an election among the toolroom employees-a unit, which this Board has consistently found to be appropriate. Three days later, notwithstanding this demand, this petition and question of representation which they raised, the Employer entered into a contract with the Steelworkers covering all of its employees, includ- ing those petitioned for and represented by the IAM. The contract between the Employer and the Steelworkers contained a union-security 9 To the extent that prior Board decisions involving the Midwest Piping principle are inconsistent herewith, they are hereby overruled. 10 This determination makes it unnecessary to pass upon the Trial Examiner's other grounds for dismissing the 8 (a) (5) allegations of the complaint. 11 We adopt the Trial Examiner's recommendation that no remedy be ordered with re- spect to the two isolated instances of interrogation which he found were violative of Sec- tion 8 (a) (1). Without regard to the Trial Examiner's substantive findings, we find, in the circumstances of this case, that no remedial order is warranted. 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD provision which was vigorously enforced-at least as to the IAM ad- herents. By September 26, 17 IAM adherents had been removed from their jobs, the wishes of the individual workers had been completely frustrated, and the standing of the IAM completely destroyed. These facts were reported to the National Labor Relations Board. A complaint was issued. A hearing was held. The Trial Examiner, after finding that the Employer was fully aware of the IAM's ma- jority claim before it signed with the Steelworkers, found no viola- tion of law. On appeal to the Board in Washington, a majority of the Board by its decision now sustains the Trial Examiner, reverses the precedents, and places its stamp of approval on this entire and, in my opinion, sordid transaction. By this ruling the majority now gives to every employer a complete and legal formula for destroying any organizational activity, by any outside union, for overriding the rights of the individual employee, for subverting any efforts at craft severance, and for perpetuating at his pleasure any union of his favor or choosing. For the reasons set forth below, I would find that the Respondent violated Section 8 (a) (1), (2), and (3) of the Act by executing and enforcing its July 28, 1952, contract with the Steelworkers, but that it did not violate Section 8 (a) (5) by refusing to honor the Ma- chinists' request for recognition on July 25, It has long been established that where employees are confronted with a choice of bargaining representatives, the employer may not accord such treatment to one of the rivals as will give it improper advantage or disadvantage in its contest for the employees' favor.13 Basically, this is no more than a recognition of the obligation which the Act imposes upon employers to keep hands off when their em- ployees are seeking to exercise their guaranteed right of freely choos- ing a bargaining representative. 14 If, therefore, the employees' freedom of choice is to be preserved, employer conduct, at this critical time, must be subjected to careful scrutiny. Accordingly, it has been consistently held that where an employer is confronted with rival claims and preferentially grants exclusive recognition to one of the rivals, he commits an unfair labor practice.15 That one of the rivals for the employees' choice is an incumbent union, currently recognized by the employer, does not, we have held, relieve the employer of his obligation to maintain strict neutrality if the petition filed by the competing union "has a character and time- liness which creates a real question concerning representation." 16 It 12 Under all the circumstances, I deem it unnecessary to pass upon the other issues raised by the complaint which are discussed in the Intermediate Report 18 N L. R B. v Waterman Steamship Corp., 309 U. S. 206, 226. 14 N L R B . v Jones & Laughlin Steel Corp ., 301 U S 1, 33 16 Harrison Sheet Steel Company v . N L. R B ,194 F 2d 407 (C. A. 7). 16 William Penn Broadcasting Company, 93 NLRB 1104. WILLIAM D. GIBSON CO. 665 is the existence of this real question of representation, therefore, and not, as the majority would find, the presence of an incumbent union or the need for industrial stability, that is determinative of the require- ment of neutrality in this case. I would certainly find, unlike the Trial Examiner and Member Murdock, that the competing claims of the two labor organizations involved in these proceedings clearly dis- closed a real question concerning representation as this Board has traditionally interpreted that concept.17 Once we have established that the question concerning representa- tion exists, there can be, to my mind, but one conclusion; namely, that by negotiating with the Steelworkers, the Company has violated the neutrality required of it. For no one can deny that such conduct bestows immeasurable prestige and advantage upon the Steelworkers and to that extent effectively supports that organization to the detri- ment of the competing Machinists. Unquestionably, this conduct would constitute a violation of Section 8 (a) (2) by criteria consist- ently recognized by the Board and approved by the courts." Since this is so, I fail to see how we may now justify the conduct or dis- charges made in consequence of it, "in the interest of industrial stabil- ity, which uninterrupted collective bargaining achieves." For, if ever there is a legal principle that we characterize as "well settled," it is the one first enumerated by the Court of Appeals for the Ninth Circuit in N. L. B. B. v. Star Publishing Co.19 and repeated by other courts 2e that "the Act prohibits unfair labor practices in all cases. It permits' no immunity because the employer may think that the exigencies of the moment require infraction of the statute. In fact, nothing in the statute permits or justifies its violation by the employer." If, there- fore, in the face of such well-settled law, this Board now holds that while a question concerning representation exists, an incumbent union and the employer may enjoy a privileged exemption from the opera- tions of the statute, we are serving notice upon all that incumbency may be synonomous with perpetuity. Under such circumstances in- dustrial stability, alone, would dominate the resolution of all represen- tation problems before the Board. Indeed the majority emphasizes this by characterizing stability in industrial relations as "the primary objective of the Act." In the recurring instances in which we have chosen between freedom of choice and stability ,"' we do not appear to 17 Gulf Shipstide Storage Corporation., 91 NLRB 181 , 210-212; Ensher, Alexander cE Barsoom, Inc , 74 NLRB 1443; Midwest Piping and Supply Co. Inc , 63 NLRB 1060 is Fogel Refrsge7 ator Company, 82 NLRB 1302, 1305, Crosby Chemicals, Inc., 85 NLRB 791, 793-795 , enfd, 188 F. 2d 91 (C. A. 5) ; Crowley's Milk Company, Inc, 88 NLRB 1049, 1050. enfd , 208 F. 2d 444, 445 (C A. 3). N. L. R. B v Braswell Motor Freight Lines, 209 F 2d 622 , 623-624 (C A 5) ; N. L. R. B. v. National Container Corp., 211 F. 2d 525, 536 (C A. 2). 39 97 F. 2d 465, 470. 20 N. L. R. B v. Hudson Motor Car Co., 128 F. 2d 528, 531, 532-533 (C. A. 6) ; McQuay- Norris Mfg Co. v N. L. R B , 116 F. 2d 748, 752 (C A 7) 21 See for example : Shtirlsngton Supermarket Inc., 108 NLRB 579 (1-year certification rule). 666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have resolved the basic conflict of which of these two concepts is pri- mary and which is secondary.22 I am not disposed to say that this judgment be made at all, much less in the context of this case. As I perceive the function of this Board, it is to provide a freedom of choice to employees in an atmosphere of relative impartiality. The majority's decision provides the opposite. It removes the choice, con- trary to the majority's assertion, by effectively destroying the oppo- sition. And it establishes partiality to the same degree that it es- tablishes a factual basis for a finding that Section 8 (a) (2) has been violated. Under such circumstances, it is completely unrealistic to insist, as the majority does, that its holding "does not interfere with the toolroom employees' right to replace their bargaining representa- tive in an appropriate Board proceeding." While that is technically true, we cannot gainsay the effect of the union-security provision in the contract which the Board now approves. Seventeen toolroom em- ployees were discharged. Although 12 of them have been reinstated upon compliance with the Steelworkers' membership requirements, I am persuaded that all of them have suffered material interference in their "right to replace their bargaining representative in an appro- priate Board proceeding." In the face of this Board-sanctioned op- position, exercising such a right would, I fear, require a hardier spirit than the average toolmaker possesses. And I fail to see what comfort he would derive in the knowledge that by its decision, the majority "permits the employees to enjoy, without interruption, the benefits of a previously established bargaining relationship." Since the very essence of this proceeding is the perpetuation of the bargaining rela- tionship, it would be more appropriate to say that the Board's decision forces, not permits, the toolroom employees to abide a bargaining re- lationship they consider of no benefit to them and which they wish to be rid of. Under all of the circumstances of this case, therefore, I would find that the Employer, by its execution of the July 28 contract with the Steelworkers, thereby granting support and assistance to that labor organization to the detriment of the Machinists, violated Section 8 (a) (1) and (2) of the Act. Furthermore, since I cannot subscribe to the proposition that the incumbency of a labor organization prevents a question of representation from arising, I would find that the em- ployer's breach of neutrality by executing a contract at such a critical period constitutes an unfair labor practice and establishes the con- 22 The majority's reliance upon Colgate-Palmolive-Peet Co v N. L R. B., 338 U. S. 355, is misplaced In that case the Supreme Court had before it a case arising under the original Wagner Act in which the legality of the closed shop was in issue. It is undoubtedly tine as the Court held, that the primary objective of Congress in enacting the Wagner Act, as illustrated by the approval of the closed shop, was "to achieve stability of labor rela- tions " It is significant however, that a subsequent Congress, in enacting the Taft-Hartley Act, specifically prohibited the closed shop in the interest of employee freedom of choice. WILLIAM D. GIBSON CO. 667 tract and the union-security provisions as unlawful . This, by all the precedents of Board and court, constitutes discrimination in violation of Section 8 (a) (3) of the Act. I would so find . I would further find, therefore , that the discharge of the 17 toolroom employees, pur- suant to the union-security provisions of this unlawful contract, and the subsequent reinstatement of 12 of them only after achieving good standing with the Steelworkers, and waiving their back pay, as condi- tions of their reinstatement, constituted discrimination against them in violation of Section 8 (a) (3) of the Act, and interference, re- straint , and coercion of them with respect to rights guaranteed them by the Act, in violation of Section 8 (a) (1). As I have indicated above, I agree with the ultimate conclusion of the majority that the complaint should be dismissed insofar as it al- leges that the Respondent violated Section 8 (a) (5) by refusing to bargain with the Machinists. I do so, however, because in the circum- stances of this case, which are fully set forth in the Intermediate Report, I believe that it would have been just as inconsistent with the Act for the Respondent to have accorded recognition to the Machin- ists as it was, in my opinion, for the Respondent to have renewed its contract with the Steelworkers. I can, therefore, hardly* find that the Respondent's refusal to bargain with the Machinists constituted a violation of Section 8 (a) (5). On the basis of all the foregoing, and the entire record, I would hold the Respondent in violation of Section 8 (a) (1), (2), and (3) of the Act, but, like the majority, would dismiss the 8 (a) (5) allegations of the complaint. MEMBER MURDOCK , concurring : I concur in the result reached by the majority that the Respondent did not violate Section 8 ( a) (1), (2), (3 ), and (5) of the Act, but not for the same reasons. I would reach that result by finding, on the basis of existing precedent, that the General Counsel failed to estab- lish the alleged Midwest Piping violation , upon which are premised the specific unfair labor practices charged against the Respondent. Under William Penn Broadcasting Company," the Board recognized that there is no duty on the part of an employer to refrain from continuing to deal with an incumbent bargaining representative in the face of a rival claim and petition unless a real question concerning representa- tion in fact exists; that an essential element for a determination that such a question existed is that the petitioning union assert its claim "as to an appropriate unit of employees ;" and that, accordingly, the General Counsel to establish a prima facie case of Midwest Piping violation in such a situation must prove that the rival union claim "did encompass employees in an appropriate unit." x' Supra 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Machinists' representation claim here was for a departmental tool room unit which the Board found in the representation proceed- ing was inappropriate, the appropriate unit being a true craft unit which included toolmakers in other departments and excluded non- craft employees in the tool department. Therefore, the Machinists' claim did not give rise to a -real question concerning representation. The fact that the Board nevertheless gave the Machinists the oppor- tunity to go to an election in the craft unit found to be appropriate does not derogate from the fact that its claim was in an inappropriate unit. The distinction between departmental and craft units has long been recognized as a significant one. Accordingly, because I find that no "real question concerning rep- resentation" existed when the Respondent executed the July 28 con- tract with the Steelworkers, as is required by the William Penn deci- sion to establish a breach of the Midwest Piping doctrine on a contract made with an incumbent union, I join my colleagues in the dismissal of all the allegations in the complaint. I note, however, that the majority, despite its finding that a real question concerning representation existed, concludes that the com- plaint should be dismissed because it overrules the William Penn deci- sion. It holds that an employer is free to make a new contract with an incumbent union even in the face of a petition by another union rais- ing a real question concerning representation-that such conduct will no longer be a violation of the Midwest Piping doctrine. On this legal issue, without necessarily adopting all the statements in the dis- senting opinion, I join Member Rodgers in protesting against the breach in the Midwest Piping doctrine which the majority is today making by overruling the William Penn decision. If in fact a real question concerning representation exists, protection of the freedom of choice of the employees requires that an employer not be permitted to give potent support to a union by making a contract with it, whether it be an incumbent union challenged by a rival or one of two outside unions. The William Penn decision marks the sound limits of per- missible dealing between an employer and an incumbent union when it permits him to continue to contract with it despite the pendency of a rival claim or petition so long as such claim or petition did not in fact raise a genuine question concerning representation. Intermediate Report STATEMENT OF THE CASE This proceeding, brought under Section 10 (b) of the Labor Management Rela- tions Act of 1947, 61 Stat. 136 (herein called the Act), was heard in Chicago, Illinois, from May 4 to 8, 1953, pursuant to due notice to all the parties. The complaint, issued on March 10, 1953 , amended on March 31 , and further amended WILLIAM D. GIBSON CO. 669 on April 17, by the General Counsel of the National Labor Relations Board,' and based on charges duly filed and served, alleged that the Respondent had engaged in unfair labor practices proscribed by Section 8 (a) (1), (2), (3), and (5) of the Act. In its answer and amended answer, duly filed, the Respondent conceded certain facts with respect to its business operations, but denied the commission of the alleged unfair labor practices. All parties were represented at the hearing, the General Counsel, the Respondent, and the Steelworkers by attorneys and the Machinists by a field representative. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce relevant evidence, to argue orally, and to file briefs and proposed findings and conclusions. At the close of its case, Respondent moved to dismiss the complaint. This motion was taken under advisement; it is disposed of as will appear hereinafter in this report. Oral argument was waived by the parties. On June 29, 1953, counsel for the Respondent, the Steelworkers, and the General Counsel submitted able and extensive briefs which have been fully considered by the Trial Examiner. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, a Delaware corporation, having its principal office at Bristol, Con- necticut, and several plants throughout the country, is engaged in the manufacture of mechanical precision springs for distribution and sale. Its only plant involved in this proceeding is located in the city of Chicago and known as the William D. Gibson Co. In the course and conduct of its business at the Gibson plant the Respondent uses materials annually valued at approximately $2,500,000, of which some 70 percent originates outside the State of Illinois. Annual shipments of finished products from the same plant are valued at approximately $7,500,000, about 63 percent of which are transported in interstate commerce between the State of Illinois and other States of the United States. Upon the foregoing facts, the Respondent concedes, and I find, that the William D. Gibson Co., Division of Associated Spring Corporation, is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATIONS INVOLVED The Machinists and the Steelworkers are labor organizations within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. Background and sequence of events The principal issues in this case arise out of the efforts of the Machinists to organ- ize some 30 employees in the toolroom at the Gibson plant where, pursuant to a Board certification, the Steelworkers have represented the approximately 500 pro- duction and maintenance employees since about 1944.2 In February 1952, pursuant to the terms of the current contract (which had a maintenance-of-membership pro- vision), the Steelworkers notified the Respondent of its desire to terminate the agree- ment as of April 1. After several bargaining conferences in March, the Company and the Steelworkers reached substantial accord on all phases of a new agreement except wages and union security. With respect to these latter issues, the Company's practice in the past had been geared to the pattern established by the major steel producers. Since at that time a strike in "Big Steel" over those issues appeared imminent, on about April 1, the parties agree to defer further negotiations until the dispute was settled in the basic industry. It is undisputed that at the same time the parties orally agreed to extend the old contract on a day-to-day basis until a new agreement was consummated. Early in July, the Steelworkers and the Company resumed their bargaining on wages. On about July 21, Clarence Goff, general manager of the Gibson plant, and Oakley Mills, International representative for the Steelworkers, agreed upon 'The General Counsel and the staff attorney appearing for him at the hearing are referred to herein as the General Counsel and the National Labor Relations Board as the Board The above-named Company is referred to as the Respondent and the two unions involved herein as the Machinists (or IAM) and the Steelworkers. 2 Associated Spring Corporation (The William D. Gibson Co , a division), 59 NLRB 598. 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a wage formula and a final draft of the new contract. Goff then asked that, before signing the agreement, Respondent's counsel at corporate headquarters in Bristol, Connecticut, be given an opportunity to review the phraseology in the draft. This was agreeable to Mills and on July 23, Paul F. Zetnick, works manager, left for Bristol with a copy of the contract. On July 24, the steel strike was settled and the public press carried accounts of the union-shop clause to which the major steel producers had agreed. That same day Respondent's executive board notified Goff that it would accede to what had become known as the steel formula on the union shop. Goff immediately telephoned Mills to this effect and the latter assured Goff that this was agreeable and that as soon as Zetnick returned from Connecticut with the final draft the union officials would sign. Zetnick arrived back in Chicago on July 26, a Saturday. On July 28, the following Monday, the company officials and the Steelworkers signed the contract. That evening the Steelworkers had a meeting at which the night shift employees ratified the agreement. At another meeting, held at 8 o'clock the following morning, the day shift took the same action. Shortly thereafter, Mills told Goff that the employees had ratified the contract with no dissenting votes. Later that same morning the Company received from the Regional Office of the Board a copy of a representation petition 3 which the Machinists had filed late on the afternoon of July 25, the preceding Friday. William D. Gibson Co., Division of Associated Spring Corp., Case No. 13-CA-2876. On the latter date, the Company had received from that union a request for recognition as the bar- gaining agent of the toolroom employees but not until after the contract with the Steelworkers had been signed was the Company served with notice that the Ma- chinists had filed a representation petition with the Board. Organizational activity on behalf of the Machinists had begun on July 23, the preceding Wednesday, when a number of the employees in the toolroom had gone to the office of Lodge No. 113, and there signed cards in the Machinists. Harold Wibiral, a toolroom employee and Steelworkers' steward for his department, was a leader in this move .4 In the period following July 23, Wibiral contacted a num- ber of his fellow employees and induced them to designate the Machinists as their bargaining agent. On July 25, the Machinists notified the Company that it repre- sented a majority of the toolroom employees and requested a bargaining conference. The Company answered this letter on August 1, at which time it informed the petitioning union that, pending receipt of word from the Board on the representa- tion case, it would decline to grant any recognition. On September 22 to 23, the Board held a hearing on the petition in Case No. 13-RC-2876. On November 4, it issued a decision in which it held that certain specified employees in the toolroom and, in addition, the toolmakers in two other departments of the plant might constitute an appropriate unit 5 and "Globalized" the unit question by ordering an election among the employees of the unit to determine whether or not the unit should be severed (Cf. Globe Machine & Stamp- ing Co., 3 NLRB 294). Prior to this decision, the Steelworkers notified the Company that certain of the employees were no longer in good standing because of their failure to pay dues and demanded, under penalty of a strike, that these employees pay their dues or author- ize deductions by September 26, or be terminated. The Respondent complied with this demand and when the incumbent union notified the Company on Septem- ber 26 that 17 named employees were still delinquent the Respondent discharged them. Of this group, 12 were subsequently reemployed when they were restored to membership in good standing in the Steelworkers. B. Contentions of the parties The General Counsel contends that the Respondent violated Section 8 (a) (1), (2), and (3) of the Act, by: (1) Executing a union-shop contract with the Steel- 3 At the hearing on this petition, the transcript of which was incorporated in the present record by stipulation of the parties, Goff testified, without contradiction, that he had received a copy of the petition by registered mail at about 11 o'clock on the morning of July 29 * Wibiral had held other offices in the Steelworkers In addition to having served a term as president of the local he had also served on several contract negotiating committees. 5In his brief the General Counsel conceded that the inclusion of craftsmen from other departments added five toolmakers to the unit originally sought by the Machinists. It should be noted further that in the same decision the Board also excluded from the pro- posed unit certain employees whom the petitioning union had sought to have included WILLIAM D. GIBSON CO. 671 workers at a time when the Machinists' representation case involving the toolroom at the Gibson plant was pending before the Board; (2) colluding with the Steel- workers in circulating an anti-Machinists' petition among the employees; (3) dis- charging 17 employees in the unit sought by the Machinists and threatening to dis- charge others for failure to maintain membership in the Steelworkers; and (4) con- ditioning reemployment of these dischargees on their acquisition of membership in the Steelworkers. The General Counsel further alleged that the Respondent violated Section 8 (a) (5) of the Act by refusing to recognize and bargain with the Machinists on and after July 25, 1952. The Respondent and the Steelworkers denied that the execution of the contract in question violated the Act or that it conflicted with the Midwest Piping doctrine,6 denied every allegation of collusion set forth in the complaint and affirmatively alleged that the contract signed on July 28 was the result of protracted negotiations, actually concluded sometime before that date and prior to the advent of the Machinists, and further, that the subsequent discharges and reinstatements were made pursuant to the plain terms of a lawful union-security agreement. _ C. The period from July to January 1. The anti-Machinists' petition and events subsequent thereto Wibiral, principal witness for the General Counsel, testified substantially as fol- lows. On the afternoon of July 29, Goff called him into his office, told him that the wage scale in the new contract had been kept confidential up to that time but that he would give Wibiral a copy so that the latter would be the first to see it, asked whether Wibiral had joined the Machinists, told him that the Respondent did not want two unions in the plant, stated that a petition would be circulated in the toolroom request- ing the Machinists to withdraw their representation case, and solicited him to circu- late this petition among his fellow employees with the assurance that if he did so he would never be sorry. According to Wibiral, within 30 minutes after his conversation with Goff, Clarence Grutter, president of the Steelworkers, brought to him a docu- ment that Grutter declared was the petition to which Goff had referred. Wibiral tes- tified that he thereupon solicited the toolroom employees to sign, and, despite per- sistent efforts, obtained only five 'signatures. He further testified that about 3:30 p. m. on July 29, Goff came into the toolroom and inquired "how is the petition com- ing" and that the following morning Zetnick, the works manager, asked him substan- tially the same question. It was undisputed that on July 30, Goff called all the employees in the toolroom to his office for a short meeting where he told them that he was concerned because efficiency in that department had dropped in the past few days, that he felt they should know what the Company was doing for them in the new'contract, and that he believed the plant could operate better with only one union. He then had Zetnick read the new wage schedule for the tool- and die-workers, and concluded the meeting with the statement that he thought everybody could work together as always. Goff testified that in his conversation with Wibiral on July 29 he had discussed the matter of whether the toolroom employees desired another union and asked him what it was all about. According to Goff, he declared that he could see no advan- tage to the employees in having another union and that he felt the Steelworkers had negotiated the best possible contract for the men. He conceded having asked Wibiral who had brought the Machinists into the shop,7 having stated that he was personally in favor of one union and having told the employees that "the Company was going to fight all the way because it didn't want two unions in the plant." Goff conceded that he heard about the anti-Machinists' petition but he denied having discussed it with the employees at any time or having asked Wibiral to circulate it, and he denied hav- ing assured the latter that any personal advantage would be derived by sponsoring it. He further disclaimed having any subsequent conversation with Wibiral in connec- tion with the petition. Zetnick likewise denied having asked Wibiral any questions about the petition either on July 30 or at any other time. The Steelworkers presented the following testimony as to the genesis and circula- tion of the petition: Grutter, an employee of the toolroom, as well as president of Local 3485, testified that it was conceived and prepared by the officers of the local on the evening of July 28, that the next day he asked Goff if he would permi. his secretary to type a petition,8 that Goff inquired as to its character and then referred s Mtidacest Piping & Supply Co , Inc , 63 NLRB 1060 Wibiial told him that he was not responsible Prior to this time, Goff's secretary had occasionally typed notices for the union. 672 DECISIONS OF NATIONAL .LABOR RELATIONS BOARD him to the stenographer who typed it for Grutter The latter denied that he ever sub- sequently showed the petition to Goff or that he had at any time consulted with the -management as to its circulation. According to Grutter, after he began circulating -the petition, he was criticized by a fellow employee on the ground that his action was a usurpation of the steward's functions, whereupon Grutter stated that if the em- ployees preferred he would give the petition to Wibiral, the departmental steward. Grutter further testified that he then, after having obtained two signatures in addi- tion to his own, turned the petition over to Wibiral and later in the day was instru- mental in getting two additional employees to sign. Grutter's version of these events -was corroborated by the credible testimony of other union officers 9 and of 3 of the 4 other employees who signed the petition.10 Wibiral's testimony which linked Goff and Zetnick with the petition was uncon- vincing to the Examiner. Apart from the demeanor of the General Counsel's prin- cipal witness, I consider the following contradictory aspects of his testimony signifi- cant: (1) Wibiral testified that his conversation with Goff took place about 1:30 p. in. on July 29, after his return from a doctor's office, and that later in the afternoon he circulated the petition among the employees on his shift. His timecard, however, showed that after being out that afternoon he returned to the plant at 4:30 p. in., the hour when the day shift was going off work. (2) According to Wibiral, it was at this meeting with Goff that he learned the wage provisions of the new contract for the first time and that Goff revealed them to him although they were still highly confidential. Yet, on subsequent cross-examination, Wibiral conceded that several hours before conferring with Goff he had attended a union meeting held for the purpose of ratifying the contract. Wibiral, professedly, had difficulty understanding what transpired at this meeting. From other witnesses, however, it is plain that the sole purpose of the meeting was to obtain the assent of the employees to the new contract; that the new agreement was discussed there by the members of the bargaining committee; and that an official of the Steelworkers read off to the assem- bled members the entire wage schedule provided therein." In view of these incon- sistencies in Wibiral's version of events it is of some consequence that on cross- examination he frankly conceded a strong dislike for Zetnick and that Minor Jackson credibly testified that during this period, in a conversation with Grutter and Wibiral, the latter declared that "Paul Zetnick had double-crossed him at one time and he would do anything under the sun to get back at him." Because of the doubt reflected on Wibiral's testimony in the light of the foregoing considerations, it is my conclu- sion that the testimony of Goff, Zetnick, and Grutter, in connection with these incidents, is the more reliable and I so find. In further support of his allegation that the Respondent had encouraged the Steelworkers and discouraged the Machinists, the General Counsel offered some evidence in connection with an incident that occurred several weeks before the discharges. This was an occasion at some time early in September 12 when, accord- ing to Wibiral, Goff called him into his office, upbraided him for unrest in the toolroom, and accused him of having brought the Machinists into the plant. Goff denied having made any accusations directed to Wibiral's union activities but did testify that he reproved both Wibiral and Grutter, the latter also having been called to the manager's office, because of what he described as rumors and propaganda that the two employees accused each other of initiating and thus keeping the entire plant in a state of turmoil. Goff concluded the meeting by admonishing both Wibiral and Grutter to quit talking and get to work. Grutter's testimony as to this incident corroborated Goff. The Respondent contended that production in the tool- room during the preceding weeks had dropped to an alarming degree as a result of rumors and unrest arising out of the interunion dispute, that Goff felt that Wibiral, as a leadman and as one of the highest paid employees in that department, was at least partly responsible for the lack of order, and that the general manager justifiably called the employee in on this occasion for disciplinary, purposes and to remind both Wibiral and Grutter of their responsibility in this regard. Because I am persuaded that Goff and Grutter gave the more credible testimony in connection with this episode I am unable to accept the General Counsel's argument that this conference was called by the Respondent to give aid and comfort to the Steelworkers. B-Myron Perry and Minor Jackson. 10 Carl Essl, Bernice Zalewski, and Fritz Esdar Alfred Henke, the other signatory to the petition, was not called as a witness 11 This finding is based on the credited, undenied testimony of Perry and Grutter. 12 None of the witnesses was able to fix the exact date. WILLIAM D . GIBSON CO. 673 2. The discharges All of the employees of the toolroom here involved had signed checkoff cards in the Steelworkers under the old contract . Pursuant to these authorizations the Company regularly deducted monthly dues until the new contract was signed . During the summer of 1952 the Steelworkers raised their monthly dues from $2 to $3. As a result, during August and September , officials of the local endeavored to secure new checkoff cards from all the employees . By mid-September there remained 20 employees in the toolroom who had not signed such authorizations . On Sep- tember 19, Local No . 3485 sent Goff the following wire: The following members have refused to resign check-off cards and are in violation of the union-security clause of our contract . We therefore demand the Company shall sign up these members by Tuesday September 23rd or we shall be forced to shut the plant down Wednesday September 24th. This action has the approval of District Director Joseph Gegmano and the Executive Board of Local 3485. The following are the delinquent members, . . . Christ Clausen . . . Frank Skores . . . Ben Fodor . LeRoy Heinz . . . Joseph Rehling . . . John Wass . . . George Naughton . . . Joseph lacullo . . . Thorleif Thorsen . . . Edward Breh . . . John Herlein . .. Joseph Bleyer . . . Otto Theil . . . Rudolph Razl . Harold Wibiral .. . Gustav Thiel Lester Noren . . . Reinert Erickson . . . L. Czechowski . . . Henry Gregor. Goff received the wire at his home during the weekend . On the following Monday, September 21, he called all those named in the message to a meeting at his office. There he read the telegram and told the employees that it appeared the plant might be closed the following day although he was still hoping some arrangement could be made to prevent that development . Goff testified that he probably told the employees "that the thing to do was to sign . check-off cards and the plant would be open tomorrow." He also testified that this same day he told Grutter that the Company did not consider the telegram an adequate basis for discharging any employees. The next day Myron Perry , financial secretary of the local, con- ferred with counsel for the Steelworkers as to the composition of a revised message and then sent the following wire to Goff: 13 The following people have not paid their dues and therefore are not in good standing with this union. . . . [here naming the 20 employees listed in the telegram of September 197. Under the modified union shop clause of our collective bargaining agree- ment, these people must remain in good standing or are subject to discharge. We insist that this provision of the contract be enforced , and that . . . these people be notified that they must pay their dues or authorize deductions by Friday September 26, or be terminated . We insist that the Company give such notice to these members by noon September 25th or we will be forced to close the plant down . This action has the approval of Joseph Germano, District Director United Steel Workers of America, and the Executive Board Local 3485. After receipt of this message on September 24, Goff again called the individuals named therein to his office , read the telegram, made no comment other than to state that the Company would have to abide by the contract , and then sent them back to work. The next day, Goff sent the following wire to the Steelworkers This is to advise you that we have notified the employees listed in your tele- gram dated September 24, 1952, that they must pay their dues or authorized [sic] deduction by Friday, September 26, 1952, or be terminated. This notice was given by reading your telegram to the employees listed therein. Please notify me by the close of business September 26, 1952 of the names of employees who have not paid their dues by such time and such employees will be terminated. This action is being taken solely by reason of your demand and in reliance upon Paragraph C of Section V of the U S Steel agreement, which is incorpo- rated by reference into our agreement, under which the Union agrees to in- "The General Counsel endeavored to pi ove that this demand was the result of collusion between the Respondent and the Steelworkers I can find no basis for this allegation. Apart, from Goff's having told Grutter that the Company considered the original wire an insufficient basis for dischaigmg the employees named , I am convinced , from a review of the credible testimony of both Grutter and Perry , that the Respondent had nothing fur- ther to do with its composition. 338207-35-vol 110-44 ,674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD demnify the Company for all liability resulting from any action taken for the purpose of complying with the union security clause. At the same time Goff sent a wire to B. F. Hanley, recording secretary of the Machin- ists, in which he quoted the text of the wire received from the Steelworkers on Sep- tember 24 and stated to Hanley, in connection with that message: I have read the above telegram to the employees listed therein and have advised Mr. Perry by telegram that any of such employees who have not paid their dues or authorized deduction by the close of business on Friday, September 21, 1952 will be terminated as of such time. On September 26, the Steelworkers notified the Respondent that 17 of the em- ployees originally listed in the earlier message,14 not having paid back dues or hav- ing authorized payment of such, were no longer members in good standing. That afternoon these employees were paid their wages in full and, in addition, their ac- cumulated Christmas bonus and vacation benefits. The following Monday, when the entire group returned to the plant, they were given termination slips. The notices were identical and gave as the reason for discharge that the employee "Has not paid dues and therefore is not in good standing with U. S. A. C. I. O. 3485." The form also contained a space where the employee could state his version of the dis- charge. After receipt of the slips, those affected repaired to the Machinists' hall for advice and counsel. When they returned, each had typed on his termination notice the following: I believe that I have been illegally discharged. The Company and the USA- CIO had no binding contract covering the craft unit because there was and is a question of representation for the craft unit filed with the National Labor Relations Board. The question of representation will be processed by the Na- tional Labor Relations Board in Washington, D. C. 3. The reinstatements In October the Company reemployed 11 of those whom it had discharged on September 26. Shortly after the latter date Zetnick learned that Henry Gregor, one of the dischargees, was anxious to come back. In a conversation with that em- ployee Zetnick told Gregor that to return with full seniority it would be necessary to regain a good-standing membership in the Steelworkers and he volunteered to put the union officials in touch with him. Soon thereafter several others called Zetnick in the same connection and were given similar information by the works manager. Later, Zetnick talked with them again, this time to tell them that he had arranged for a conference with the Steelworkers on October 12. This meeting was `held in Goff's office at the plant. Gregor, Wass, Breh, Clausen, Gustav Thiel, and Bleyer were the employees present. Goff and Zetnick greeted the employees as they arrived and then left them in the room with Oakley Mills and officials of the Steel- workers' local. Mills asked the employees to take an oath of loyalty to the Steel- workers and thereafter each one signed a checkoff card. The day after the meeting the union officials gave formal notice to Goff that the six employees had been reinstated to membership in good standing, asked that they be reemployed "effective as of September 26, 1952, but without any right to pay for the period between their discharge on September 26, 1952 and the date they return to work," and agreed that the seniority, pension, and other rights of these employees would not be affected by their discharge. At the same time the Company received from the Steelworkers a document signed by the employees in question wherein they waived all claims for back wages from the date of their discharge until October 12, and released the Company and the Steelworkers from any liability arising out of their discharge.15 Later that week other employees talked with Zetnick about coming back to work and on October 15, the latter arranged for Joseph A. Rehling, John Herlein, Frank Skores, LeRoy Heinz, and Lester Noren to meet with the Steelworkers under the same circumstances as the previous group had done. Here, Grutter, speaking for the Steelworkers,is told the five individuals they would have to sign checkoff cards 14 Three of the original twenty, Thorsen, Czechowski, and lacullo, had signed checkoff authorizations during the week 15 These documents were prepared by counsel for the Respondent 16 There was no credible evidence that either Goff or Zetnick were in the room after the union officials started talking with the men Heinz testified that he thought Goff was at the meeting but on cross-examination he was less confident of his recollection in this regard It is appaient from the credible testimony of Goff that the latter was not only not WILLIAM D. GIBSON CO. 675 and that it would be necessary to pay up their back dues in order to retain their seniority. All present thereupon signed the checkoff authorizations as well as the waiver of back-pay liability which their coworkers had signed on October 12. The 11 reinstated union members were then reemployed. In January, Reinert Erickson wag likewise returned to the payroll after he had regained good standing in the Steel- workers in the same fashion as his 11 coworkers had done 3 months before. Erickson also signed a waiver of back-pay liability similar to that which the others had signed in October.17 As with the others, Erickson was required to pay up his back dues in order to be reinstated with his accumulated seniority. D. Conclusions with respect to the allegations of the General Counsel 1. The alleged refusal to bargain The Respondent conceded in its answer that at all times subsequent to July 25, 1952, it has refused to bargain with the Machinists. Customarily, the question as to whether this constituted a violation of Section 8 (a) (5) would turn on a determina- tion as to whether the Machinists had a majority status within an appropriate unit at the time of its demand for bargaining. The parties stipulated that on July 25, there were 31 employees in the unit de- scribed in the Board's Decision and Direction of Election. On July 23, 15 of the toolroom employees signed authorization cards in the Machinists.18 Within the succeeding 10 days some 8 others signed cards. Four of this last group of cards bore the dates "July 24" and "July 25." 19 Wibiral testified that he solicited these author- izations from his coworkers and sometime thereafter mailed them to the Machinists' headquarters. The face of each of these eight cards bears a postage cancellation stamp dated August 7, making it apparent that they were not mailed until then. The Respondent argues that this fact throws in serious doubt, if it does not disprove, Wibiral's testimony that a majority of the toolroom employees signed cards on or before July 25. While it is true that the fact Wibiral did not mail these cards until August 7, might indicate that until then he actually had not obtained them, I do not believe that to have-been the situation here. There was no contest as to the authen- ticity of the signatures appearing on the cards, and the issue here involved related only to the accuracy of the figure purportedly reflecting the date of such signature. From a close examination of the handwriting on the four cards, which are dated July 24 and 25, however, it is my conclusion that the signer of the card also wrote in the date that appears thereon. This being so, on the facts present here, it seems apparent to me that these 4 cards were signed on the dates they bear, thus making 19 cards for the Machinists, or a majority, at the time of the IAM request to bargain. Since the Machinists had a majority, under normal circumstances the next ques- tion would be whether the unit which it sought to represent was appropriate. On July 25, the JAM requested recognition as the bargaining agent for all toolroom em- ployees.20 By its petition filed in the representation proceeding the Machinists asked to be certified for a unit of this same description. This position was not adopted by the Board in its Decision and Direction of Election. Apart from the fact that the Board left the ultimate determination of the unit question to the employees affected, present at this meeting but that he did not even learn of it until later. In this he was corroborated by Perry and Zetnick. Heinz further testified that he thought Zetnick re- mained at the meeting but in this particular be manifested an even greater inability to iecall the facts than he had with respect to Goff Perry and Grutter, the other witnesses piesent, credibly testified that Zetnick had conducted the employees to the meeting room and then, immediately, departed 17 Erickson testified that the checkoff card which he signed was given to him by S 13. McHenry, the personnel manager It appears from the credible testimony of Perry, how- ever, that this situation arose because of the fact that he had no blank cards while at the. union meeting when Erickson was reinstated and to make it more convenient foi the em- ployee had told him that he would leave the card for him at the personnel office so that it could be signed and returned to Perry after Erickson reported for work is This was at the meeting referred to above (section III, A) Wibiral and otlieis testi- fied that there were 17 employees at this meeting It is clear, however, that the Machinists obtained no more than 15 cards from those present e These cards were signed by Leonard Czecliowski, Fiiedrich Esdar, George Naughton, and Frank A Skores 20Excludmg office and clerical employees, professional employees, guards, and super- -visors as defined in the Act, as well as all employees at the plant who did not work in the toolroom. 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it defined as a potentially appropriate unit a grouping which would exclude certain employees whom the Machinists sought to represent 21 and include others on whose behalf the IAM had not asked recognition,22 so that, as conceded in the General Counsel's brief, five toolmakers employed in departments other than the toolroom were included in the unit which the Board found should be "Globed." The General Counsel contends that the departmental toolroom sought by the Machinists was at least "essentially" appropriate. There is some doubt as to the validity of this con- tention. Cf. International Broadcasting Corporation (KWKH), 99 NLRB 130. It is unnecessary to decide the issue, however, since, for another reason, it is my con- clusion that the refusal to bargain charge must be dismissed. It is, of course, well settled, as the Board has held, that where an employer in good faith questions the appropriateness of the unit sought, he cannot be held to have committed an unfair labor practice in refusing to bargain, even though it is subsequently determined that the unit claimed by the petitioning union is appropriate. Gazette Publishing Com- pany, 101 NLRB 1694. Here, since the Board in its subsequent decision concluded that the unit question should be decided by the employees themselves, there was ob- viously some basis for the employer to hold a good-faith doubt as to the appropriate- ness of the unit sought by the Machinists. More important to the the instant problem, however, is the fact that the Steelworkers constituted a vital, incumbent, certified union. The Board has held in a closely analogous situation that under these cir- cumstances for the employer to decline recognition to a rival union, even though that organization may have a card-check majority, does not constitute a violation of Sec- tion 8 (a) (5) of the Act. In I. Spiewak cf Sons, 71 NLRB 770 (mod. and enfd. 179 F 2d 695 (C. A 3)) , the Board stated (at p. 771) : For the respondents to have gone forward to recognize and bargain with the Amalgamated on the basis of a representative status depending merely on desig- nation cards or on the number of employees participating in the Amalgamated's current strike, in disregard of the Association's previous certification, its current claim and its active and long-standing representation of the employees involved, would not, in our opinion, have been consistent with the Act We can, there- fore, hardly hold that the respondents' failure to bargain with the Amalgamated, whatever their motivation for refusing, constituted a violation of Section 8 (5). More recently the Board reaffirmed this holding. Indianapolis Newspapers, Inc., 103 NLRB 1750. These decisions are plainly applicable to the instant situation and, in accordance with them, it is my conclusion that here the Respondent did not unlaw- fully refuse to bargain with the Machinists.23 One further point on this phase of the case remains to be considered. In support of his allegation that the Machinists had a majority at the time that union requested the Company for recognition and bargaining, the General Counsel also sought to prove that the Machinists maintained this majority in the months thereafter. Thus, Wibiral testified that in September some 20 of the toolroom employees signed appli- cations for membership in, and paid initiation fees to, the Machinists. Later in the hearing, when the General Counsel offered in evidence the applications of these em- ployees, an objection thereto on the grounds of irrelevance and immateriality was sustained by the Examiner. A motion for reconsideration of this ruling, made by the General Counsel after the Board denied his request to appeal from the ruling, was taken under advisement by the Examiner. Because of my conclusion set forth above, with respect to the alleged violation of Section 8 (a) (5), the General Counsel's motion is now denied. 2. The issues and conclusions in regard to the Respondent's execution of a contract with the Steelworkers The principal issue in this case is the General Counsel's contention that when, on July 28, the Respondent signed a new contract with the Steelworkers covering all the production and maintenance workers at the plant, it violated Section 8 (a) (1), (2), and (3) of the Act because at the time there was pending a question of representation which the Machinists had raised. Midwest Piping cC Supply Co., Inc., 63 NLRB 1060. The Respondent and the Steelworkers, on the other hand, contend that the doctrine of the last cited case was never intended to apply to the 21 Vu-, tool-crib attendant and machinist welders zz I e , all toolmakers in departments 6 and 20 z3In view of the holding in the Spiewak and Indianapolis Newspapers decisions on this point, it is apparent that the Joy Sslk Mills decision ( 85 NLRB 1263 , enfd. 185 F 2d 732 (C A , D C ), cert denied 341 U S 914), and related cases cited by the General Counsel have no application here. WILLIAM D. GIBSON CO. 677 instant situation, citing, inter alga, William Penn Broadcasting Company, 93 NLRB 1104, and that to hold otherwise would be inconsistent with the basic purposes of the Act. Thus, the Respondent asserts that in the absence of an affirmative show- ing that the unit claimed by the Machinists was appropriate, the Respondent was free to recognize and bargain with the Steelworkers, and that, as an incident to such recognition and bargaining, enter into a contract with that union and adhere to such an agreement. In the representation proceeding the Board held that the contract did not con- stitute a bar to the holding of an election since it was executed within 10 days after the Machinists filed a petition. At the hearing, and in his brief, the General Counsel has argued that this finding foreclosed consideration in any subsequent complaint proceeding as to the facts surrounding the execution of the contract. This argument, however, is untenable, for the Board's administrative determina- tion in the representation case that the contract was not a bar to an election is of no relevance with respect to the question of whether the execution of such an agreement constituted an unfair labor practice Whereas a contract may not bar an election if signed after a representation petition is filed (Crossett Paper Mills, 98 NLRB 542, 544), it would seem elementary that before an employer could be held to have committed an unfair labor practice under the Midwest Piping doctrine it would be necessary to prove at the outset that he knew a representation petition had been filed prior to the moment he signed the contract in question. As appears above, it was not until July 29, that the Respondent was formally served with a copy of the Machinists' petition. Although the Respondent received a letter from that union on July 25, requesting recognition and an opportunity to bargain, that correspondence made no reference to a Board-conducted election. Moreover, there is nothing in the record to indicate that the Respondent was fairly apprised of the Machinists having resorted to the Board's election processes until it was served with a copy of the petition on the morning after it signed the contract with the Steelworkers. The Midwest Piping doctrine stemmed from a construction of the Act designed to protect the integrity of the election processes once a question of representation was referred to the Board for resolution. Since the Respondent here did not receive notice of the Board's involvement in the matter until after it had executed the contract in question, the General Counsel must urge that the request from the Machinists, received on July 25, must, in and of itself, have been enough to raise the representation question which would compel the Respondent to delay the execution of any contract or go forward at its peril. Surely, the mere request, however baseless, of a rival union made at the last minute before an employer and an incumbent union are to sign an agreement can not be enough to invoke the Midwest Piping theory as of that instant 24 so that the execution of any contract then and regardless of when, if ever, a representation petition is filed, would be a violation of the Act. It would appear that until an employer is fairly on notice that the Board's representation processes have been put in motion he should be free to proceed with negotiations and conclude a binding agreement. Especially should that be the rule in a case such as the instant one where the employer and an in- cumbent union had practically concluded their negotiations, weeks, if not months, before the rival appeared on the scene. For this reason, it is my conclusion that here the Respondent did not have such notice as would place it in jeopardy of violat- ing the Act at the time it executed the contract with the Steelworkers. Apart from the issue of whether the Respondent was sufficiently apprised of the representation case at the time in question, there is a further reason for my con- clusion that this is not a situation where the principle of the Midwest Piping case is applicable. Several years ago, the Board made clear that the rule of that case was to be "strictly construed and sparingly applied" (Ensher, Alexander & Barsoom, Inc., 74 NLRB 1443, 1445). In a more recent decision, William Penn Broadcast- ing Company, 93 NLRB 1104, the Board held that an employer had committed no unfair labor practice by entering into an exclusive bargaining agreement with an incumbent union, although a rival had filed a petition for representation of some ,of the employees covered by the agreement, where the employer claimed that the unit sought by the petitioning union was inappropriate. There the Board said <at p. 1105-1106) : . . . 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 24 It would, of course, if followed by a petition filed within 10 days, be grounds on which the Board would hold that the contract was not a bar to an election. General Elec- trie X-Ray Corp , 67 NLRB 997. That, however, is not the issue here. 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD has a character and timeliness which create a real question concerning repre- sentation. One of the essential elements for a determination that such a "question" exists is that the petitioning union, seeking to displace an incumbent , assert its claim as to an appropriate unit of employees. In the absence of such a question, therefore, if the employers' contract with the incumbent union has any tendency to encourage the employees to become or remain members of the incumbent union, . this is merely a possible and natural advantage which inheres in the position of every lawful bargaining agent and does not constitute an interference with the employees' free choice of representatives prescribed by the Act zs The burden is on the General Counsel to show that the unit sought by the petition- ing union is appropriate, and, absent such a showing, "an employer does not violate the Act by continuing to recognize the incumbent union." Roegelein Provision Company, 99 NLRB 830. Here the General Counsel has insisted, throughout, that the Board has already decided that the unit sought by the Machinists is appro- priate. This argument, however, ignores the fact that apart from the manner in which the unit described in the Board's decision differs from that requested by the Machinists, the Board has not yet held that this newly described unit is appropriate but has, instead, deferred a decision on the matter until the employees registered their preferences in an election. For this reason it is my conclusion that the Gen- eral Counsel has not made the necessary affirmative showing that, on July 25, the Machinsts sought such an appropriate unit as would distinguish the situation here from that in the William Penn case. I further conclude and find that it was not a violation of Section 8 (a) (1), (2), or (3) of the Act, for the Respondent to con- tinue its recognition of the Steelworkers as the bargaining agent for all its production and maintenance employees, on and after July 28, and to execute the contract in question. 3. The issues and conclusions with respect to the discharges and reinstatements The 17 employees whose discharges are involved in this proceeding were members in good standing of the Steelworkers on July 28, 1952, when the new contract was executed Each of them had signed a checkoff card under the old contract and con- cededly, none, either before or after July 28, ever 'attempted to withdraw from this obligation pursuant to the provisions of the checkoff cards 26 Since the original cards limited the amount of the monthly dues deduction to $2, when the Steelworkers on August 1 increased their dues to $3, that union then sought to obtain new check- off cards from all the employees. The discharge of the 17 here in question arose from their failure to either sign the new cards or to arrange for the direct payment of dues for the months of August and September During these latter months none of the dischargees signed new checkoff cards and only two testified that they endeavored to pay their dues in cash. One of the two, Rudolph Razl, testified that in September he offered a cash payment, first to John Dorner, recording secretary of Local 3845, and later to Myron Perry, the financial secretary, and that in each instance he was rebuffed. This was denied by both Dorner and Perry. Wibiral conceded that for some time the Steelworkers' consti- tution has permitted only the financial secretary to collect dues. Razl was once president of the Steelworkers' local and had held other responsible posts with that local so that it might be presumed that he too, was aware of this provision. In view of this it would seem unlikely that he would endeavor to tender dues to Dorner, the recording secretary, whom Razi must have known was not authorized to accept such payments. His testimony as to a purported conversation on the same subject with Perry was vague and unconvincing. zs A subsequent opinion in the William Penn case, 94 NLRB 1175. in no way detracted from the Board's holding quoted above In the later ruling at 94 NLRB 1175, the Board merely remanded the case for further hearing to permit the introduction of additional evidence on the question of appropriateness of the unit so that the case might be disposed of on its merits rather than on a technical failure of the evidence In a later decision, Roegelein Provision Conipany, 99 NLRB 830, the Board reaffirmed its holding in the original William Penn case 20 By these cards the employees authorized the Respondent to deduct dues as long as any collective-bargaining agreement continued in effect, with the further provision that an employee could remove himself from the checkoff at the end of any year, or at the ex- piration of any collective-bargaining agreement, by sending a written notice to the Com- pany and to the Steelworkers Not 1 of the 17 dischargees ever sent such a notice or ever asked either orally or in writing, that he be removed from the checkoff. WILLIAM D. GIBSON CO. 679 Wibiral testified that he, too, had tendered cash payments to Dorner and Perry only to have his offers rejected. This was denied by both of the Steelworkers' offi- cials whom he named. In this connection Wibiral's account was most unpersuasive. At the hearing he testified that he endeavored to pay his dues in cash to protect him- self and that the idea had occurred to him after reading a newspaper story on a Board decision wherein an employee who had refused to sign a checkoff card was reinstated because he had offered his dues in cash. Yet, Wibiral conceded that he had never informed Goff, Zetnick, or Buchanan that he had sought, unsuccess- fully, to pay his dues in this manner. In response to a leading question by the General Counsel, he testified that the day before his discharge he had so informed Fred Wagner, the factory superintendent, but on cross-examination, when asked to repeat this conversation with Wagner, Wibiral failed to include any reference to this statement. Wagner credibly testified that he could not recall having discussed any such topic with the employee. Wibiral admittedly did not mention his alleged tender at the time he received his termination notice nor in the "employee's version" of- the discharge which he asked to have appended to that notice. Razl conceded that he never told any official of the Company that he had sought to pay his dues in cash. Since Wibiral and Razl were leaders in the Machinists' movement, had they con- cluded that they might protect themselves by a cash tender it is inconceivable that they woud not have urged their 15 colleagues to do likewise. Yet Reinert Erickson and LeRoy Heinz, who were closely associated with Wibiral and Razl and discharged at the same time, gave no testimony about having made any cash tender of dues. In the light of the foregoing considerations it is my conclusion their neither Wibiral or Razl ever offered to pay their dues in cash. Moreover, there is no showing that such offers, if, in fact, made, would have been futile gestures. Krambo Food- Stores, Incorporated, 106 NLRB 870; Utah Construction Co, 95 NLRB 196, 204 Since I have found that the execution of the contract on July 28 was not violative of the Act, any discharge pursuant to the union-security provisions of that agree- ment would be permissible unless the employer had "reasonable grounds for believ- ing that membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues.. . ." (Section 8 (a) (3)). Here, the 17 employees in question having failed to tender their dues pursuant to the contract, the Steelworkers having informed the Company that for this reason they were no longer members in good standing, and the Respondent having no basis for believing that their membership had been terminated on any other ground, the Respondent had no alternative but to discharge the 17. The facts in connection with the reinstatement of 12 of these employees have been set forth above. The General Counsel alleges that in reinstating these dischargees the Respondent turned over to the Steelworkers the matter of their reemployment and that in so doing the Respondent assisted the latter in direct violation of Section 8 (a) (3). This argument proceeds on the assumption that the execution of the con- tract of July 28 was in itself unlawful, a conclusion already rejected. Once it appears, as I have held, that the contract was not signed in derogation of the Act, the Respond- ent's conduct pursuant thereto and in good-faith compliance therewith cannot be deemed a violation. Krambo Food Stores, Incorporated, 106 NLRB 870, Chis- holm Ryder Company, 94 NLRB 508; Standard Brands, Inc., 97 NLRB 737. It should be noted, farther, that none of the discharged employees ever asked to return as a new employee, consequently it is unnecessary to consider whether the Respondent sought to impose discriminatory terms upon their reinstatement except insofar as such terms or conditions were not permitted by the collective-bargaining contract with the Steelworkers. Because this contract provided, inter alia, for senior- ity and pension rights the Respondent asked that the Steelworkers state, in writing, that the employees seeking reinstatement were once more in good standing and that the union had no objection to their reinstatement. Further, to avoid any question that reinstatement would entitle the employee to reinbursement for the period be- tween his discharge and subsequent reemployment, the Respondent also required that the employees waive any such claim. Having found that their original discharges were legal, the above constitutes no evidence that the Respondent discriminated against these individuals in connection with their reemployment. Krambo Food Stores, Incorporated, 106 NLRB 870 (discharge of Boetchur and Gorski); Standard Brands, Inc., 97 NLRB 737, 740-741; National Lead Company, Titanium Division, 106 NLRB 545. 4. The allegations as to Section 8 (a) (1); conclusions with respect thereto The General Counsel alleged that the Respondent had violated Section 8 (a) (1) of the Act in that Goff had interrogated Wibiral as to his activity in the Machinists, instigated an anti-Machinists' petition which he allowed to be circulated freely in ,680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the plant, interrogated Grutter as to how many employees had signed the petition, and, in furtherance of a compaign against the Machinists , called a meeting of the toolroom on July 30 to promote the interests of the Steelworkers. As appears above, I have found that the petition in question was prepared by the Steelworkers and that, contrary to Wibiral 's testimony, Goff did not ask that he circulate it among his fellow employees . The facts in connection with the meet- ing of July 30 have been set forth above ( section III , A). Nothing which Goff said during this meeting could be construed as beyond the scope of protected free speech under Section 8 (c) of the Act. The General Counsel urges that at least the Respondent must be charged with responsibility for the anti -Machinists' petition since it was typed on company time and freely circulated during working hours. On the facts present here , I can not agree with this contention . There was no evi- dence of any no-solicitation rule at the plant and from the testimony in the record it is plain that, throughout this period , propagandizing for the Machinists , as well as for the Steelworkers , went on apace during working hours without any objection from the Respondent . Nor does it appear that the fact that the petition in question was typed by a company stenographer who had on various other occasions typed notices for the union merit any significance. Goff's query to Wibiral as to who had started the Machinists' movement and his subsequent question to Grutter as to how many had signed the petition constituted unlawful interrogation within the meaning of Section 8 (a) (1) as the Board has construed that provision of the Act. Syracuse Color Press, Inc., 103 NLRB 377. (But see , N. L. R. B. v. Arthur Winer, Inc., 194 F. 2d 370 (C. A. 7), cert. denied, 344 U. S. 819.) However, as the Board has also held that an isolated instance of interrogation does not merit the issuance of a remedial order, (Waffle Corporation of America, 103 NLRB 895; American Thread Company, 97 NLRB 810; Gazette Publishing Company, 101 NLRB 1694 ), and because , as appears above, it is my conclusion that the Respondent has not violated Section 8 (a) (1), (2), (3), or (5) of the Act, in any of the other respects alleged, I will recommend that the com- plaint be dismissed in its entirety. On the basis of the foregoing and upon the entire record in the case, I have reached the following: CONCLUSIONS OF LAW 1. The Respondent, William D. Gibson Co., Division of Association Spring Cor- poration, is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. The Steelworkers and the Machinists are labor organizations within the meaning ,of the Act. 3. The Respondent has not engaged in unfair labor practices as alleged in the complaint within the meaning of Section 8 (a) (1), (2), (3), and (5) of the Act. LRecommendations omitted from publication.] GGOFF-MCNAIR MOTOR COMPANY and INTERNATIOOqAL ASSOCIATION OF MACHINISTS, AFL LYLE BRYAN MOTOR COMPANY and INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL P. R. GREEN, D/B/A GREEN CHEVROLET COMPANY and INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL. Cases Nos. 32-CA-2176, 32- CA-368, 32-CA-274, 32-C, A-367, 32-CA-275, and 32-CA-369. October 29,1954 Decision and Order On May 6, 1953, Trial Examiner Robert E. Mullin issued his In- termediate Report and on April 29, 1954, his Supplemental Inter- mediate Report in the above-entitled proceeding, finding that the Re- 110 NLRB No. 104.