Associated Machines, Inc.

390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD will have any occasion to exercise their seniority rights? As it ap- 'pears that there is no reasonable prospect of reemployment of these voters in the forming department , we find in agreement with the Regional Director, that the employees in group 3 were permanently laid off on the eligibility date, and were therefore not eligible to vote. The Board has considered the Regional Director's report on chal- lenged ballots and the exceptions thereto and hereby adopts the find- ings and - recommendations of the Regional Director that the chal- lenges to the ballots of the employees in groups 1 and 2 be overruled and the ballots be opened and counted , and that the -challenges to the ballots to the persons listed in group 3 be sustained. [The Board directed that the Regional Director for the Eighth Region shall, within ten (10) days from the date of this Direction, open and count the ballots of Sam Burford , F. Grames, S; Grzey- orczyk, B. Lehman, J. McGee, C., Shumate, E. Carpenter, Cecil Me- Court, M. McCourt, and Carl Mingione and serve upon the parties a, supplemental tally of ballots.] ACTING CHAIRMAN RoDGERS took no part in the consideration of the above Supplemental Decision and Direction. I In its brief, Flints cites a number of cases in support of its . contention that the retention of seniority rights requires a finding that these employees are temporarily rather than permanently laid off. In each case cited, however, there are other factors present, in addition to retention of seniority status, indicating the temporary nature of the layoff. In the instant case, none of these additional factors is present. The mere fact that laid-off employees have continued seniority rights does not entitle them to vote, but rather the test is whether there exists it reasonable expectancy of employment in the near future. Hsggins, Inc., 111 NLRB 797, and cases cited therein. - Associated Machines, Inc, and United Steelworkers of America, C. 1. 0. and Independent Machine Workers Union of Lancaster, Ohio1 Party to the Contract. Case No. 9-C.4-843. October 13, 1955 DECISION AND ORDER On March -24, 1955, Trial Examiner Herbert Silberman issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not'violated the Actin certain other respects. 114 NLRB No. 80. ,ASSOCIATED MACHINES, INC. 391 Thereafter, the General Counsel and the Respondent filed exceptions to the Intermediate Report and supporting briefs.' 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 Inter- mediate Report, the exceptions and briefs, and the entire record in- the case, and hereby adopts the Trial Examiner's findings, con- clusions, and recommendations as modified below. We agree with the Trial Examiner that the Respondent violated Section 8 (a) (1), (2), and (3) of the Act by entering into and main- taining in force a'collective-bargaining agreement containing a union- security clause which granted to employees less than 30 days in which to join the contracting Union. We also agree with the Trial Ex- aminer in rejecting the Respondent's contention that the written agree- ment was intended only to memorialize an oral understanding which became effective upon employee ratification of the proposed agree- ment. In the field of labor law, it is customary to consider a writ- ten document embodying the terms of a collective-bargaining rela- tionship as the contract between the parties and that it is not to be effective until signed by both parties to the agreement. There is no evidence of any intention by the parties to depart from this normal practice and understanding. The Respondent has not excepted to the Trial Examiner's recom- mended remedy for the above violation of the Act, namely, that the Respondent withdraw recognition from the Independent as collective- bargaining representative of its employees and cease giving effect to its bargaining contract with that labor organization. We adopt the Trial Examiner's recommendation. In view of our finding that the Respondent violated Section 8 (a)- (2) and (1) of the Act by entering into the 1954 collective-bargaining agreement with the Independent because of the inclusion therein of an unlawful union-security clause, we find it unnecessary to decide whether the signing of the agreement also violated the same section of the Act because of the Midwest Piping doctrine 2 The remedy for the second alleged violation would be essentially the same as that for the violation actually found. 'Accordingly, we do not adopt or pass upon the validity of the Trial Examiner's findings or discussion re- lating to the Midwest Piping issue. ORDER Upon the entire record in this case, and pursuant to Section 10 (c) .of the National Labor Relations Act, the National Labor Relations ' The Respondent's request for oral argument is hereby denied as the record and excep- tions and briefs, in our opinion , adequately present the issues and positions of the parties. 2 Midwest Piping and Supply Co., 63 NLRB 1060. 392 ODECISIONS OF NATIONAL LABOR RELATIONS BOARD Board hereby orders that the Respondent, Associated Machines, Inc., Lancaster, Ohio, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Recognizing Independent Machine Workers Union of Lan- caster, Ohio, or any successor thereto, as the representative of its em- ployees for the purpose of dealing with it concerning grievances, labor disputes, wages, rates of pay, hours of employment, or' other condi- tions of employment, unless and until such labor organization shall have been certified by the National Labor Relations Board as such representative. (b) Performing or giving effect to its collective-bargaining agree- ment with Independent Machine Workers Union of Lancaster, Ohio, entered into in July 1954, or to any modification, extension, supple- ment, or renewal thereof, or to any other contract, agreement, or under- standing, entered into with the said labor organization, relating to grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until said. organization shall have been certified by the National Labor Relations Board. (c) Encouraging membership in Independent Machine Workers Union of Lancaster, Ohio, or any other labor organization, by discrim- inating against employees in regard to hire or tenure of employment or other terms or conditions of employment. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Withdraw and withhold all recognition from Independent Ma- chine Workers Union of Lancaster, Ohio, or any successor thereto, as the representative of any of its employees for the purpose of dealing with such labor organization in regard to grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of em- ployment, unless and until such labor organization shall have been certified by the National Labor Relations Board as the representative of the employees concerned. (b) Post at its plants in Lancaster, Ohio, copies of the notice at- tached to the Intermediate Report and ., marked"-Appendix A." ' Copies of such notice, to be furnished by the Regional Director for the Ninth Region, shall, after being duly signed by the Respondent's rep- resentative, be posted by it immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent a This notice shall be amended by substituting for the words "The Recommendations of a Trial Examiner" the words "A Decision and Order " In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order " ASSOCIATED MACHINES, INC. 393 to insure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Ninth Region in writing, within ten (10) days from the date of this Order,. what steps it has taken to comply herewith. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon a charge duly filed by United Steelworkers of America, C. I. 0., herein called the Steelworkers, the General Counsel of the National Labor Relations Board, by the Regional Director for the Ninth Region (Cincinnati, Ohio), issued a complaint and amendment to complaint, dated, respectively, September 14 and 17, 1954, against the Respondent, Associated Machines, Inc., alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1), (2), and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 61 Stat. 136, herein called the Act. Copies of the charge, complaint, amendment to complaint, and notices of hearing thereon were duly served upon the parties, including Independent Machine Workers Union of Lancaster, Ohio, herein referred to as the Independent. The Respondent in its answers to the complaint and amendment to complaint, respectively verified on September 17 and 22, 1954, denied that it had committed the alleged unfair labor practices. With respect to the unfair labor practices, the complaint, as further amended dur- ing the hearing, alleges, in substance, that the Respondent: (1) In violation of Sec- tion 8 (a) (1) and (2) of the Act, on June 30, 1954, recognized and thereafter ne- gotiated with the Independent as the exclusive bargaining agent for its employees and on July 26, 1954, entered into a written contract with the Independent although it knew that a question concerning representation existed by reason of the conflict- ing representation claims or interests of the International Brotherhood of Electrical Workers, A. F. L., herein referred to as the IBEW, International Association of Machinists, A. F. L., herein referred to as the IAM, and the Steelworkers; and (2) in violation of Section 8 (a) (1), (2), and (3) of the Act, on July 26, 1954, con- cluded and thereafter enforced a collective-bargaining agreement which required as a condition of employment membership in the Independent within a period of less than 30 days following the effective date of the said agreement. Pursuant to notice, a hearing was held at Lancaster, Ohio, on various dates between October 5 and November 22, 1954, before Trial Examiner Herbert Silberman. At the opening of the hearing the Trial Examiner granted the motions made on behalf of the IBEW and IAM to intervene in the proceedings. All parties and intervenors were represented at the hearing by counsel or other representative, and were afforded full opportunity to be heard , to examine and cross-examine witnesses, to introduce evidence pertinent to the issues, to engage in oral argument at the close of the hear- ing, and to file briefs and proposed findings of fact and conclusions of law with the Trial Examiner. Briefs were received from the General Counsel and the Respondent and have been carefully considered. Upon the entire record in the case, and from my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Associated Machines, Inc., a Michigan corporation, at its plants in Lancaster, Ohio, is engaged in the manufacture of plastic molded parts, metal diecastings, and- other products which are components used in the assembly and manufacture of parts for automobiles. During the year ending June 30, 1954, which period is represen- tative of all times material hereto, the Respondent sold, shipped, and delivered prod- ucts manufactured by it and valued in excess of $100,000 to the R. B. M. Division of the Mendon Company, also located in Lancaster, Ohio. During the same period, the R. B. M. Division of the Mendon Company used the components it received from the Respondent in the production of automobile parts valued in excess of $250,000 which were shipped from its plant in Lancaster, Ohio, to points outside the State of Ohio. The Respondent admits and I find that it is engaged in commerce within the mean- ing of the Act. 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATIONS INVOLVED Independent Machine Workers Union of Lancaster, Ohio; United Steelworkers of America, C. I. 0.; International Brotherhood of Electrical Workers, A. F. L.; and In- ternational Association of Machinists, A. F. L., are labor organizations within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Sequence of events The ultimate issues in this case are *two: first, has the Employer accorded un- lawful assistance to the Independent by voluntarily recognizing, that labor organiza- tion as the collective-bargaining representative of its employees and by entering into a contract with said Union; and second; does the agreement contain an unlawful union-security clause. Relevant to the issues, particularly as background, is a prior unfair labor practice proceeding, Case No. 9-CA-673, which was instituted against the Respondent upon charges filed on May 26 and July 21, 1953, by the Steelworkers, which labor organization also filed the charge in the instant case. The complaint in the earlier case, issued on July 28, 1953, in relevant part, alleged that from about May 25, 1953, the Respondent dominated and interfered with the formation and administration of an unaffiliated labor organization, the Associated Machines, Inc., Committee, and also lent unlawful assistance to the IBEW. Following a hearing before a Trial Examiner, which was held on September 9 and 10, 1953, the Board on February 17, 1954, issued its decision and order,' adopting the Intermediate Report of the Trial Examiner, who found that the. Respondent had violated Section 8 (a) (1) and (2) of the Act by dominating the Associated Machines, Inc., Committee but that it had not unlawfully assisted the IBEW, and ordering the disestablishment of the Committee. The Respondent refused to comply with the Board's order and the United States Court of Appeals for the Sixth Circuit was petitioned to enforce the said order. However, on January 31, 1955, by the decision of a divided court (219 F. 2d 433), enforcement was denied on the ground that the alleged dominated 'Committee was not a Jabor organization within the meaning of the Act. While the proceedings in the earlier case were taking place, the events upon which the complaint herein is founded occurred. On May 28, 1953, the IBEW addressed a letter to the Respondent claiming to represent a majority of Respondent's em- ployees and requesting recognition as their exclusive bargaining agent. Although Respondent did not reply to this letter in writing, about June 1953, Frank E. Twiss, Respondent's vice president and general manager, told F. E. Kistler, International representative for the IBEW, that Respondent would recognize the IBEW only if the Union could show that it represented a majority of the employees. The IBEW made no attempt to demonstrate its majority status to Respondent, but on July 9, 1953, filed with the Ninth Regional Office of the Board at Cincinnati, Ohio, a peti- tion for certification of representatives, which was assigned Case No. 9-RC-2009. The IBEW's petition described the appropriate collective-bargaining unit as all Respondent's production and maintenance employees,2 and named the Steelworkers as another labor organization interested in the described employees. The General Counsel contends that the Board's Regional Office mailed copies of the IBEW's petition to the Respondent and the Steelworkers on the same day that it was filed, but took no further steps in the matter in accordance with the Board's estabilshed policy to hold in abeyance any action with respect to a petition for certification of represen- tatives while an unfair labor practice proceeding, particularly one alleging violations of Section 8 (a) (2) of the Act, is pending against the affected employer. The Re- spondent denies that it received a copy of the petition in Case No. 9-RC-2009 or otherwise acquired knowledge that such petition had been filed prior to receipt of the complaint in the instant proceeding. The General Counsel's position herein is that the petition in Case No. 9-RC-2009 was pending before the Board within the meaning of the principle enunciated in Midwest Piping and Supply Co., Inc., 63 NLRB 1060, during the times the events related below occurred. The Independent was formally organized on April 23, 1954, when its constitution and bylaws was adopted. There is no contention that the Independent was created 1107 NLRB 1153. a This unit with the usual exclusions is conceded to be appropriate by the parties to^ this proceeding It is essentially the same unit described in the collective-bargaining agree- ment between the Respondent and the Independent. ASSOCIATED MACHINES, INC. 395 or formed at the instigation of the Respondent , or that it received financial support from the Respondent , or that its activities were dominated by Respondent. The Independent, having obtained the signatures of a majority of the employees to a petition at the top of which is written , "We, The Undersigned, Want An Independent Labor Union," on June 23 , 1954, wrote the Respondent requesting recognition as the representative of its employees and at the same time submitted its petition to the Respondent. The letter was returned to Merrill Pottle, secretary-treasurer of the Independent, by John Twiss, Respondent's superintendent, who told Pottle that Respondent could not recognize the Independent on the basis of its June 23 letter because the letter did not contain a specific claim that the Independent represented a majority of the employees. In accordance with Twiss' suggestion, on June 29, 1954, the -Independent wrote Respondent a second letter this time asserting its majority status and again requesting recognition. The Respondent replied the next day by letter stating: Having examined the evidence of majority status submitted by you we can advise you that representatives of the company will be ready to meet with you any time after July 6, 1954. Frank E. Twiss testified that Respondent had continued to meet with the Associated Machines, Inc., Committee until this date. Thereafter, on July 14, officers of the Independent met with Frank Twiss and the Company's attorneys at which time the terms of a proposed contract were discussed. Another meeting was held a few days later. The evidence does not show who drafted the agreement which is in issue in this case or when it was drafted. However, the evidence shows that a proposed agreement between the Respondent and the Inde- pendent was read to the membership of the Independent at a meeting held at 7:30 p. m., on Friday, July 23, 1954, and was voted upon. The union membership by its vote empowered its executive committee to sign the contract on behalf of the Independent. Upon the conclusion of the meeting the appropriate officers of the Independent executed the agreement. The following Monday, July 26, 1954, in the presence of the three union officers who had already affixed their signatures to the agreement, Frank E. Twiss signed the contract on behalf of the Respondent. Thus, the agreement between the Respondent and the Independent was concluded on July 26, 1954.3 Between June 30, when Respondent recognized the Independent, and July 26, when Respondent executed the aforesaid collective-bargaining agreement, another union advanced its claim to represent Respondent's employees. On July 16, 1954, the IAM wrote Respondent advising that it had been designated by a majority of Respondent's production and maintenance employees as their bargaining agent and requesting a meeting with Respondent. Respondent ignored this letter and on July 21, 1954, the IAM wrote a second letter to the Respondent reasserting its representative status, protesting the layoffs of three employees, and again requesting a meeting with Re- spondent. This letter also was not answered. On July 29, 1954, the IAM filed a peti- tion for certification of representatives, which was docketed as Case No. 9-RC-2293 by the Ninth Regional Office of the Board. The Board has taken no action in this case. While the foregoing events were taking place, the Steelworkers succeeded in obtaining authorization cards from a substantial number of Respondent's employees, most of which were secured in August 1953 and February and March 1954. The evidence shows that a majority of the employees covered by the July 1954 agreement between the Respondent and the Independent had previously designated the Steel- workers as their representative. Many of these employees, without revoking prior authorizations given the Steelworkers, had also signed the Independent's petition. However, the Steelworkers did not request recognition from Respondent or advise Respondent of its claim to be the representative of a majority of Respondent's employees until August 10, 1954. The General Counsel's theory in this case is that in June and July 1954, Respond- ent was aware of the competition among the above-mentioned labor organizations to achieve the status of exclusive collective-bargaining representative of its employees and was therefore under a duty, imposed by the Act, to remain neutral and not to intrude upon the employees' freedom of choice by giving its support to any of the s Contrary to the contention advanced by the Respondent, the evidence does not show that the written agreement merely memorialized a prior oral contract entered into between the Respondent and the Independent on July 22, 1954, or that Respondent had made an unconditional offer in the form of the unsigned agreement which merely awaited the Independent's acceptance to become a binding contract. 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD competing unions. Since an employer who enters into a collective-bargaining agree- ment with one of several rival labor organizations, particularly an agreement which contains a union-security clause, lends such organization potent assistance in its struggle for majority representation among the employees, the General Counsel contends that the Respondent herein by doing just that has infringed upon the employees' right to self-organization and has provided unlawful support to the con- tracting union, the Independent. The position of the Respondent, on the other hand, is that it was unaware of any organizational activity among its employees from September 1953 until it was presented with a representation claim by the Independent, in June 1954, and, therefore, having no reason to doubt the Independent's evidence of majority, it was privileged to recognize and to contract with that organization. B. Respondent's knowledge of the representation petition filed by the IBEW The disputed issues in this case are essentially legal rather than factual. The parties are in substantial agreement as to the operative facts relevant herein with but one significant exception. The positions of the General Counsel and the Respond- ent are in conflict with regard to whether the Respondent at the time it recognized and entered into a collective-bargaining agreement with the Independent knew of the pendency of the representation petition filed by the IBEW in Case No. 9-RC-2009. The General Counsel relies upon circumstantial evidence to prove that the Respond- ent in July 1953 received a copy of the representation petition which had been filed with the Board by the IBEW. Mrs. Helen K. Jones, who since 1947 has been super- visor of the affidavit compliance, docketing, and mail, files, and records section for the Ninth Regional Office of the National Labor Relations Board, testified that she had personally handled the clerical operations on behalf of the Regional Office of the Board in connection with the representation petition ,filed, by, the IBEW and, that, on July 9, 1953, a copy thereof was mailed to the Respondent. She, testified that, in accordance with the routine procedure of the office, among other things, she ad- dressed envelopes with return addresses marked thereon and bearing United States Government franks to the employer named in the petition at the address set forth therein 4 and to the Steelworkers, which organization was listed in the petition as another union interested in Respondent's employees. She inserted a copy of the IBEW petition in each envelope and deposited the envelopes on a desk in the sane office which is used as a repository for outgoing mail. She further testified that, although she does not have any personal recollection of the ultimate deposit of the letter addressed to the Respondent in a duly authorized receptacle of the United States Post Office, in the normal coarse of the office's routine operations one of her subordinates or herself that same night removed all the letters from the mail desk and deposited them in a mailbag in the lobby of the building in which the Board's Regional Office is located. Mrs. Jones further testified that any undelivered letters are received by another clerical employee who then forwards such letters to the unit supervised by Mrs. Jones. Undelivered letters are placed in the appropriate case files. She testified that the file in the Case No. 9-RC-2009 does not show that the copy of the represen- tation petition which- had been. mailed to the -Respondent,-had -`_been `returned' uiide- livered to the Board's Regional Office. J. Robert Keys testified that the Steelworkers had received the copy of the IBEW petition which Mrs. Jones testified was mailed to it at the same time that another copy was mailed to the Respondent. Frank Twiss, Respondent's vice president and general manager, on the other hand, testified that the Respondent never received the copy of the representation petition which Mrs. Jones testified was mailed to Respondent on July 9, 1953. The generally accepted rule in most United States jurisdictions is that proof of the existence of an office practice or custom in the mailing of letters, together with proof that the custom was followed in the particular instance, constitutes sufficient evidence of mailing to support a presumption of due receipt by the addressee.5 This presump- tion is strengthened where, as in this case, it is shown that the letter was not returned to the sender, although the envelope bore a return address, and also that other letters 4 The petition names Associated Machine Industries as the employer instead of Associated Machines, Inc However, the address of the employer named in the IBEW petition is 234 North Memorial Drive, Lancaster, Ohio, which is the address of the Respondent herein . I do not find any merit in Respondent's argument that the General Counsel has failed to prove that the letter in issue in this case had been duly mailed because the evidence shows that the envelope was addressed to Associated Machine Industries instead of'Associated Machines, Inc, where the street address which was placed on the envelope corresponded exactly with the Respondent's street address. 6 Meyers et at. v. Moore-Kite Co.,-279 Fed 233 (C A. 3) , 31 C J. S 782. ASSOCIATED MACHINES, INC. 397 mailed by the sender at the same time as the letter in issue were received by their respective addressees . Furthermore, the addressee's positive denial of receipt does not nullify the presumption but merely creates an issue of fact with such weight to be given the presumption as the trier of facts thinks it entitled to, the burden of proving receipt remaining throughout on the party who asserts it.6 The General Counsel argues, in effect, that Twiss ' denial was a fabricated afterthought which should not be accorded any weight., This argument is based upon the opening statement of Re- spondent's counsel and testimony of Frank Twiss which are inconsistent with Twiss' later denial that the Respondent had received a copy of the IBEW petition . The com- plaint alleges, inter alia, ". . . Respondent . assisted . the Independent by . .. agreeing to bargain with said Independent . . ., even though it knew there was a current representation petition pending, raising a question concerning representa- tion within an appropriate unit, which had been filed by the IBEW on or about July 9, 1953; . However, at the opening of the hearing when the Trial Examiner re- ,quested the attorneys for the parties to state their respective positions, counsel for the Respondent did not state that the Respondent's defense to the aforesaid allegation of the complaint was lack of knowledge of the pendency of the IBEW petition but in effect asserted that its defense was one of confession and avoidance , namely, "I think ,our [ Respondent's] position is merely that there was a petition for representation pending which was well over a year old at the time we [ Respondent ] recognized another union. , [ Emphasis supplied .] Had Respondent 's counsel been ad- vised by his client prior to the opening of the hearing that it had no knowledge of the pendency of the 1BEW representation petition when it entered into its contract with the Independent, it would have been only natural for counsel also to have relied upon this fact in his opening statement instead of "merely" upon the legal position that the passage of time caused the IBEW petition to become dormant. Moreover, when the General Counsel sought to introduce in evidence a document which purported to be a motion by the Steelworkers to intervene in Case No. 9-RC-2009, Respondent's attorney objected , and his objection was sustained by the Trial Examiner, on the ground that there was no proof of service upon the Respondent of the Steelworkers' motion to intervene . On the other hand , Respondent's counsel raised no similar ob- jection to the admission of the IBEW petition itself into evidence although he did object to its admission on grounds of materiality , which indicates that Respondent's attorney at that stage of the hearing had not yet been advised by his client that it had not received a copy of the IBEW representation petition.? The General Counsel also directs attention to testimony of Frank Twiss given early in the hearing which is inconsistent with his later denial of receipt of a copy of the IBEW petition. The General Counsel , while interrogating Frank Twiss concerning the supervisory status of certain employees on particular dates, asked the questions and received the answers quoted below: Q. Was he in that position at the time the IBEW filed its petition in RC- 2009, for instance? A. I don't remember., He was there before Paul. Q. Well, the petition was filed , I believe, on July 9, 1953. To the best of your recollection ' [Emphasis`•supplie l ] A. Yes, I would think so, yes. It is true at that particular time in the proceeding Mr. Twiss was not being interro- gated about the petition in Case No. 9-RC-2009 , nevertheless, it does not appear to the Trial Examiner that it would have been natural for Twiss to have answered the last question quoted above with a simple yes if the fact was that the Respondent had not received the IBEW petition. Upon consideration of all the factors bearing upon the issue , including my impres- sion of the reliability of Frank Twiss as a witness, I do not credit his testimony that the Respondent , prior to September 1954, had no knowledge of the pendency of the IBEW petition in Case No. 9-RC-2009. On the other hand, I find that the Respond- ,ent received a copy of the said petition in July 1953.8 131 C J. S. 786 7 See Pacific Intermountain Express Company, 110 NLRB 96, footnote 14. 8 In making this finding I do not rely in any respect upon the testimony of Ervin L. 'Schwartzmiller that in August 1954 a representative of the Respondent admitted to him that the Respondent had knowledge of the pendency of the IBEW petition in Case No. '9-RC-2009. Seliwartzmiller 's testimony was too indefinite to merit credit when opposed lby the forthright but^contr.idictory testimony of Frank Gallucci. 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Conclusions 1. With respect to the execution of the agreement with the Independent The Act imposes upon an employer the duty of bargaining collectively with the representative designated or selected by the majority of the employees in a unit ap- propriate for such purposes. In substance, the Respondent's position is that it did no- more than fulfill its statutory obligations by recognizing, negotiating, and entering into a written agreement with the Independent. The General Counsel's position, on the other hand, is that during all the times material hereto a genuine question existed as to whether any of the'competing labor organizations had been designated by Re- spondent's employees as their collective-bargaining agent and that the Respondent by voluntarily recognizing and entering into a contract with the Independenent, par- ticularly a contract containing a union-security provision, determined the question of representation for itself thereby according to the Independent potent advantage over its rivals and infringing upon the employees' statutory right to self-organization and to freely choose their collective-bargaining representative. The most reliable indicium of the employees' wishes as to representation is the re- sults of a secret ballot election conducted under Board auspices pursuant to Section 9 of the Act.. However, this method of selection of a bargaining agent is not exclu- sive. Even absent the imprimateur of a Board certification, an employer, neverthe- less, may recognize and deal with a labor organization freely chosen by the em- ployees as their bargaining representative. On the other hand, where a real question exists as to whether a particular organization is the majority representative of the employees in an appropriate unit, an employer who arrogates to himself the author- ity vested in the Board by Section 9 of the Act to determine such question violates the Act. The existence of a question concerning representation is normally, and in most instances conclusively, indicated by the pendency of a representation proceed- ing based upon a petition which had been filed with the Board in accordance with Section 9 (c) of the Act. However, the pendency of a proceeding before the Board is not an indispensable prerequisite to the existence of a question concerning repre- sentation. Under normal circumstances where several labor organizations are vying for the same employees' favor the Act requires the employer to remain neutral in the contest. He should not interfere with the employees exercising a free and unham- pered choice and should refrain from any action which tends to give one union advantage over its rivals Thus, recognition of one of the competing unions as ex- clusive bargaining agent while the question concerning representation is still unre- solved is a breach of the employer's obligation of neutrality and is proscribed by the Act. This is so regardless of whether a proceeding under Section 9 of the Act for the determination of representatives is pending before the Board. The General Counsel, citing Midwest Piping and Supply Co., Inc., 63 NLRB 1060, contends that in July 1954 when Respondent entered into its contract with the In- dependent a question concerning representation is conclusively presumed to have existed solely by virtue of the pendency of the petition in Case No. 9-RC-2009, which had been filed by the IBEW more than a year earlier. I do not agree with the General Counsel's premise that a violation of the Act is spelled out in this case merely by proving that the IBEW's petition for certification of representatives in a concededly appropriate unit had not been dismissed or otherwise disposed of by the Board when the Respondent executed its collective-bargaining agreement with the Independent. It is not the purpose of the Act to cause postponement or interrup- tion of collective bargaining "whenever a clearly unsupportable or specious rival union claim is made upon an employer." 9 Thus, in Ensher, Alexander & Barsoom, Inc., 74 NLRB 1443, the Board cautioned that the Midwest Piping doctrine "neces- sary though it is to protect freedom of choice in certain situations can easily oper- ate in derogation of the practice of continuous collective bargaining, and should, therefore, be strictly construed and sparingly applied." 10 A prima facie case of violation of the Act under the Midwest Piping principle is not made out merely by establishing that a representation petition was on file with the Board at the time the employer entered into a collective-bargaining agreement. It is incumbent upon the General Counsel to establish by a preponderance of the evidence that "the petition has a character and timeliness which create a real question concerning representation." William Penn Broadcasting Company, 93 NLRB 1104, 91Villcam Penn Broadcasting Company, 93 NLRB 1104, 1105. 10 See also N. L. R B. v. FlotiU Products, Inc., 180 F 2d 441 (C A 9) ; N. L. R B. v. Standard Steel Sprcng Company, 180 F. 2d 942 (C. A 0) 'ASSOCIATED MACHINES;,.INC. ' 399 1105.11 This the General Counsel has failed to do. "The existence of [such] a question [concerning representation ] is determinable by applying the same criteria, contemplated in Section 9 of the Act, that are uniformally applied by the Board in finding a `question of representation ' before proceeding to an election." 12 - One of the essential elements which must be established before the. Board will make a determination that such a "question" exists is that the petitioning union represents a "substantial number of employees ." 13 It has been "the Board's administrative ex- perience that in the absence of special factors the conduct of an election serves no purpose under the statute unless the petitioner has been designated by at least 30 percent of the employees." 14 Although the determination of substantial interest is administrative 15 and may be made ex parte by the Board's Regional Director, it does not relieve the General Counsel in this case from showing in some manner that such administrative determination had been made and that the Regional Director had found that the petitioning union, the IBEW, did represent a substantial number of employees. Absent evidence in any form that the 1BEW had an adequate showing of interest to support its petition, I find that the General Counsel has failed to prove that the petition filed by the IBEW in Case No. 9-RC-2009 raised a real question concerning representation.16 Additionally, Respondent argues that it was justified in assuming that the IBEW petition was dormant at the time it entered into its contract with the Independent. This argument has merit. The evidence shows that when the IBEW filed its petition the Respondent was sent a copy thereof but the Board did nothing more in the matter. If the Regional Director of the Board had determined that reasonable cause existed to believe that the IBEW petition raised a question concerning rep- resentation he made no effort to communicate such determination to the Respondent. The lapse of more than 1 year, through no fault of the Respondent,17 together with the fact that after the IBEW had filed its representation petition the Board named that union as an assisted union in Case No. 9-CA-673, in my view were sufficient to lull Respondent into the belief that the IBEW petition would not result in a hear- ing and representation election. As the court said in N. L. R. B. v. Flotill Products, Inc., supra, "The [Midwest Piping] doctrine is certainly disruptive of the practice of [continuous ] collective bargaining where, as here, representation proceedings are retained before the Board for inordinate lengths of times." 18 If any question of "The respondent in the William Penn case had entered into a contract with an in- cumbent union and the principle enunciated by the Board in that case was phrased to reflect this circumstance The Board majority emphasized its concern that "a broad application of the [Midwest Piping] doctrine 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 ." However, employees are likewise prejudiced by the postponement , as well as by the Interruption , of bargaining relation- ships and the rule of the William Penn case is not limited to instances where an employer enters into a contract with an incumbent union. Thus, in Leubren Paper Corporation, etc., 105 NLRB 567, the Board dismissed a complaint alleging violation of Section 8 (a) (1) and (2) of the Act where the respondent had entered into a collective-bargaining agreement with a union, which was not an incumbent union, after a representation petition had been filed with the Board and while the petition had not been finally disposed of by the Board. 11 William Penn Broadcasting Company, supra, p. 1106. 13 Section 9 (c) (1) (A) of the Act. - i4 National Labor Relations Board, Statements of Procedure, June 3, 1952, Section 101.17. 15 Potomac Electric Power Company, 111 NLRB 553. 16 Cf. N. L. R. B. v. J. I. Case Company, 201 F 2d 597 (C A. 9) ; Intermediate Reports in General Electric Company, 110 NLRB 1109, and Leubren Paper Corporation, etc., supra. 1S In the present posture of the case, because the court of appeals has exonerated Respondent of any alleged violations of the Act in connection with the charges and complaint in Case No. 9-CA-673, Respondent's relationship with the Associated Machines, Inc , Committee cannot be considered culpable. 1s Had the court of appeals handed down a different decision in Case No. 9-CA-673 it might be argued that so long as the unfair labor practices found by the Board in the earlier proceeding are unremedied an atmosphere of coercion prevails which, in accordance with the Board's usual practices , prevents the holding of a free election . In such circum- stance, the Board normally would not direct an election in Case No. 9-RC-2009 until the coercive effects of the Employer's unfair labor practices have been dissipated by compliance with the Board's order. Therefore, because the Board would not attempt to de- termine the employees' bargaining representative in an atmosphere which is not conducive to an untrammeled and free exercise of choice, a fortiori, the Respondent who is not as well equipped as the Boaid to determine the employees ' true Ilesires as to representation 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representation was raised by the IBEW petition , under the circumstances , it was; technical rather than real and cannot be the springboard for any findings of unfair labor practices herein.19 Apart from the alleged Midwest Piping violation , the broader question raised in, this case is whether the Respondent breached its obligation to remain neutral during a period of contest among several labor organizations for designation as bargaining agent of Respondent's employees . The Respondent's position, in substance, is that so far as it knew the Independent had no active rival and therefore when that Union requested recognition and submitted evidence of its majority the Respondent was. fulfilling its statutory obligations by recognizing and entering into negotiations with the Independent. Respondent further contends that the later conflicting representa- tion claims of the IAM, mailed to it on July 16 and July 21, 1954, 10 days and 5• days, respectively, before it executed its agreement with the Independent were un- supportable and therefore Respondent was justified in ignoring them . In defense of its position various witnesses called on behalf of the Respondent , including the Com- pany's managers and supervisors , testified that from September 1953 until the In- dependent was recognized by Respondent, on June 30, 1954, they were aware of no activity in behalf of any union other than the Independent . In rebuttal, the General Counsel was able to show only that : (1) On October 20 and 27 and No- vember 4, 1953, a representative of the IAM distributed pamphlets , which generally advertised the benefits of unionism , at the gate of one of Respondent's plants, but did not actively solicit the employees to join the JAM; (2) that the Steelworkers held 3 meetings ; 1 in August 1953, the second in January 1954, and the third on July 23, 1954, which were attended by from 8 to 12 employees ; and (3 ) on February 23, 1954, Frank Twiss in a speech to the employees in which he defended the Company's position with respect to the Board's decision and order in Case No. 9-CA-673 said, "You can join any union you want. You can join the CIO, the AFL, the IBEW, the JAM, any union you want ." 20 The foregoing circumstantial evidence is inade- quate to overcome the testimony of Respondent's managers and supervisors that they did not know of any organizational activity on the part of any union other than the Independent from September 1953 to July 1954. The remark of Frank Twiss, quoted above, in context of the entire speech does not establish that in February 1954 he knew of current efforts by any of the unions mentioned to organize Re- spondent's employees ; it was merely a specific explication of his thesis that the Com- pany would not interfere with its employees' self-organizational efforts. The per- functory distribution of leaflets by the IAM in October and November 1953, unac- companied by any overt attempts to sign up members, was not likely to have aroused sufficient employee interest to warrant an inference that these activities had been reported to the Respondent . Furthermore, such a limited organizational effort by the JAM was not sufficient to raise even a suspicion that that union had succeeded thereby in obtaining designations from any substantial number of employees. As to the Steelworkers' meetings there was no evidence that they had been publicly ad- vertised or that there had been any general talk about them in the plant . Further- more, the General Counsel sought to show that the Steelworkers' adherents prob- ably feared reprisals from the Respondent for supporting that Union and would have kept their activities in its behalf secret . Accordingly, there is no basis on the record for inferring that the Respondent had obtained any information concerning those, may not determine for itself the employees' bargaining representative "Otherwise, we should have the anomalous lesult of an employer being permitted unilaterally to [re]determine his employees' bargaining representative at a time when the Board would refuse to make such [re]determination because the time is inappropriate for such action "i Hexton Furniture Company, 111 NLRB 342 10 National Labor Relations Board, Twelfth Annual Report, p 26, Enslacr, Alexander & Barsoom, Inc, supra. 20J. Robert Keys, a representative of the Steelworkers, testified that he telephoned Frank Twiss and "told him that we still represented the people and asked him for a copy of the transcript of his [February 23] talk that lie made to his employees." Twiss acknowledged that Keys had telephoned him and had requested a copy of his speech. However, Twiss denied that Keys said to him that the Steelworkers represented Re- spondent's employees Although this incident, as well as the circumstance that the Steelworkers had filed the charges in Case No. 9-CA-673, indicates the continuing interest of the Steelworkers in iepiesentmg Respondent's employees, they are not sufficient to put the-Respondent on notice that the Steelworkers actually had, obtained authorizations from a substantial number of employees, even assuming that Keys had made the ambiguous remark to Twiss in February 1954 "that we still represented the people." ASSOCIATED MACHINES, INC. 401 meetings or other organizational efforts on the part of the Steelworkers between September 1953 and July 1954.21 Although at times the principle of employer-neutrality has been expressed in sweeping language,22 it is applied with sensible appreciation that indiscriminate and rigid adherence to such rule may unreasonably frustrate or delay collective bargaining if no genuine, question exists as to which of several competing labor organizations is the true representative of the employees.23 An employer is privileged, if not required, to recognize any bona fide labor organization which genuinely demonstrates that it has been freely designated as bargaining agent by an uncoerced majority of the em- ployees in an appropriate unit, despite conflicting representation claims, so long as the employer's action is free of wrongful intent and the contesting union's claims of majority status lack sufficient semblance of genuineness or substantiality to raise a valid question concerning representation.24 Thus, in Siler Mill Company, 92 NLRB 1680, 1683, the Board held that it is not unlawful for an employer to enter into a contract with a majority representative merely because at the time of the execution there may have existed a speculative possibility that another union might claim to represent the employees concerned. Similarly, in Anaconda Copper Mining Com- pany, 104 NLRB 1064, the Board held that recognition of a union which adequately proved its majority did not constitute unlawful assistance where the employer was not confronted with a conflicting representation claim although aware of the organiza- tion interest of a competing union.25 In the instant case, Frank Twiss testified that when he received the purported evidence of majority submitted by the Independent, he compared the names thereon against the Company's payroll and upon finding that a majority of the employees had signed the instrument accorded the Independent recognition. There is nothing in the present state of the record which impeaches Respondent's asserted bona fides 26 in recognizing the Independent upon the basis of that Union's petition. The Respond- ent was free to disregard the earlier claim of the IBEW which at that time had lain dormant for more than a year. Likewise, because there is no proof that the JAM-'s subsequent claims of majority status had any support in fact, the Respondent was justified in its action in ignoring such claims.27 The General Counsel argues, how- ever, that the Steelworkers' authorization cards from a majority of the employees in the appropriate unit suffices to impugn the validity of the Independent's majority. That would be true had the Steelworkers made timely assertion of a claim to repre- sent the Respondent's employees. However, because the Steelworkers did not advance its claim until after the Respondent concluded its contract with the In- 21 The evidence shows that a substantial number of employees gave the Steelworkers authorization cards in the early months of 1954. However, such testimony as appears in the record on the subject indicates that the solicitation of Steelworkers' cards was conducted surreptitiously and probably did not come to Respondent's attention. 22 For instance, in Henry Heide, file, 107 NLRB 1160, the Board said • that an employer confronted with claims to recognition by rival unions violates Section 8 (a) (2) if he recognizes one of them on the basis of a card-showing. 23N. L. R. B. v. Indianapol)s Newspapers, Inc, 210 F. 2d 501 (C A. 7) : The Act does not require, however, that this neutrality continue until the last dissident voice is stilled. . . . Although the prize of recognition must not be em- ployed coercively to influence the employees in making their decision, once indis- putable proof of majority choice is presented to the employer, the Act imposes on him a duty to award recognition to the agent so chosen by his employees. 34Spitcer Moto) Sales, Inc, 102 NLRB 437, enfd 211 F. 2d 235 (C. A. 2). 21 See N. L. R B. v. Corning Glass Works et at, 204 F. 2d 422 (C A 1). 111 find no merit in the contention advanced by the General Counsel in his brief that the letter, dated June 17, 1954, from the Independent's attorney to Merrill Pottle, secretary of the Union, which contains the statement that the Independent "is now recognized as the bargaining agent for the group it represents," absent proof that Respondent was in any way responsible for the composition of the letter and absent proof that its contents were made known to the employees generally, is evidence of Respondent's bad faith in granting recognition to the Independent. 21 The mere fact that an employer is engaged in collective bargaining with one union at the time lie receives a claim from another labor organization that the latter represents a majority, normally does not excuse the employer from investigating such conflicting claim and from discontinuing further bargaining with the first union if such claim raises a genuine question concerning representation 1 Sp)ewak d Sons, 71 NLRB 770, 771, enfd. as to this point 179 F. 2d 695 (C. A. 3). 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dependent,- the fact that the, Steelworkers also had authorization cards from a majority of the employees did not raise a timely question concerning representation. ' Upon the basis of the foregoing, I do not find that the Respondent unlawfully assisted the Independent by recognizing and bargaining collectively with it. 2. With respect to the union-security provision - The agreement which was concluded on July 26, 1954, by the Respondent and the Independent contains in article II, section 3, the following provision relating to union security: All employees of the Company in the unit covered by this Agreement shall become members of the Union within thirty-one (31) calendar days after the effective date of this Agreement and shall remain members of the union in good standing for the term of this Agreement. .. . The effective date referred to in the above-quoted clause is July 22, 1954. This is apparent upon reference to article I, section 1, of the contract, which provides, "This agreement shall take effect as of July 22, 1954 " and the interpretation given the union-security clause by the parties. Thus, Merrill Pottle, the Independ- ent's secretary-treasurer, testified that on August 4 and again on August 17, 1954, the Union posted notices on the bulletin boards in Respondent's plants which warned employees that under the terms of the collective-bargaining agreement with the Respondent they were required to join the Independent not later than August 22, 1954, subject to the penalty of discharge for failure to do so. The first notice, in pertinent part, read: All employees of AMI are required to sign the obligation of the Independent Machine Workers Union of Lancaster, 0. within 30 calendar days after date the contract was dated. The contract was dated July 22, 1954. The second notice, in pertinent parts, read: This notice has been posted to remind the remaining employees who have not signed their obligation cards that August 22, 1954 is the closing date for signing. Any employee who does not sign the obligation of the Independent Machine Workers Union will be discharged by the Company at the request of the Union. It is the desires of the Union and its members that no employees will have to be discharged. However it is our intention to abide by the rules with no exception. That the Respondent adopted the foregoing interpretation of its agreement with the Independent and gave effect to the union-security clause of the contract in accord- ance with such interpretation may be inferred from the circumstance that the Inde- pendent's notices were displayed on the plants' bulletin boards for several weeks' and had come to the attention of Frank Twiss, Respondent's vice president and general manager, without Respondent in any respect disavowing the warnings therein contained. The union-security proviso of Section 8 (a) (3) of the Act reads, in relevant part: Nothing in this Act . . . shall preclude an employer from making an agreement with a labor organization . to require as a condition of employment member- ship therein on or after the thirtieth day following . . . the effective date of such agreement. .. . This provision of the Act is unambiguous. It is clear therefrom that a clause providing for a grace period of less than the specified 30 days violates the Act. Thus, a union-security clause which provides a grace period of 29 days does not satisfy the minimum requirements of the Act and is unlawful. Chesler Glass Co., 92 NLRB 1016, 1017.28 The contract herein having been finally consummated on July 26, 1954, the ,employees were entitled , under the statute, to a minimum period of 30 days, which would have expired on August 25, 1954, within which to join the Independent. The contract, however, allowed the employees a grace period of only 27 days from the 28 In some circumstances where a union -security clause does not expressly accord em- ployees the required grace period, the statutory provision will be read into the agreement. N. L. R. B. v. United Electrical, Radio and Machine Workers of America, Local 622 (UE), 203 F. 2d 673 (C. A 3). Similarly, parol evidence may rescue an ambiguous or in- artistically worded union-security clause. Krambo Food Stores, Incorporated, 306 NLRB 870, 873, and Kaiser Aliunitnum d Chemical Corporation, 98 NLRB 753, 754. ASSOCIATED MACHINES, INC. 403 date on which it actually became effective (not the retroactive effective date), and therefore exceeded the degree of union security permitted by Section 8 (a) (3) of the Act. Accordingly, the Respondent by entering into and maintaining in force an agreement containing such unlawful union -security provision has violated Section 8 (a) (1), (2 ) and (3 ) of theAct29 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade , traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and that it take affirmative action designed to effectuate the policies of the Act. It has been found that the Respondent has violated Section 8 (a) (1), (2), and (3) of the Act by entering into and giving effect to a collective-bargaining agreement with the Independent containing an unlawful " union-security provision. In accordance with the Board's established policy in such cases, it will be recommended that the Respondent withdraw ' rei ogiiition from the Independent as the collective-bargaining representative of its employees and cease giving effect to its contract, entered into in July 1954, with the Independent, `or to any modification , extension , supplement, or renewal thereof, unless and until the Independent shall have been certified by the Board as the collective-bargaining representative of the employees concerned.30 Nothing in this recommendation, however, shall be construed to require the Respond- ent to vary or abandon those wage, hour , seniority, or other substantive features of the relationship between Respondent and its employees which may have been estab- lished pursuant to the aforesaid agreement. Upon the basis of the foregoing findings of fact , and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. By entering into and continuing in effect, during the times material hereto, the unlawful union-security provision in its collective-bargaining agreement with the Independent, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1), (2), and (3) of the Act. 2. 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.] 80 Prsntz Leather Company, Inc., et al., 94 NLRB 1312 Accord . Tacoma Harbor Lumber and Timber Co., 108 NLRB 930; and Acme Mattress Company, Inc., 91 NLRB 1010. 1012, enfd 192 F. 2d 524 (C. A 7). so Ebasco Service Incorporated, 107 NLRB 617; Printz Leather Company, Inc, supra; Strauss Stores Corporation, at al, 94 NLRB 440; Julius Resnick, Inc, 86 NLRB 38; Lee's Department Store v.'N. L R B, 195 P. 2d 411 (C. A. 9). But see N. L. R. B. v. Gaynor News Company, Inc, 197 P 2d 719 (C A 2), affd 347 U. S 17 APPENDIX A NOTICE To ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the Labor Management Relations Act, we hereby notify our employees that: WE WILL withdraw and withhold all recognition from Independent Machine Workers Union of Lancaster, Ohio, as the collective-bargaining representative of any of our employees for the purposes of dealing with us concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until said labor organization shall have been certified by the National Labor Relations Board as such representative. 387644-50--vol. 114- 27 . 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT perform , enforce, or give , effect to our contract entered into in July 1954 with Independent Machine Workers Union of Lancaster , Ohio, or to any modification , extension, supplement, or renewal thereof unless and until said organization shall have been certified by the National Labor Relations Board. WE WILL NOT encourage membership in said Union, or any other labor organization , by discriminating against employees in regard to hire, tenure of employment, or terms and conditions of employment. All our employees are free to become, remain , or refrain from becoming members of, any labor organization , except to the extent that this right may be affected by agreements in conformity with Section 8 (a) (3) of the National Labor Relations Act, as amended. _ ASSOCIATED MACHINES, INC., Employer. Dated---------------- By------------- - -------------=---------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Rheem Manufacturing Company and United Steelworkers of America, CIO, Petitioner. Case No. 4-RC-f3614. October 13; 1955 - SUPPLEMENTAL DECISION AND CERTIFICATION OF REPRESENTATIVES On June 1, 1955, pursuant to a Decision and Direction of Election of the National Labor Relations Board,' an election by secret ballot was conducted under the -direction and supervision of the Regional Director for the Fourth Region among the employees of the Employer in the unit found appropriate by the Board. Upon the conclusion of the Election, the parties were furnished a tally of ballots. The tally showed that there were 187 votes cast, of which 134 were for the Petitioner, 51 were for the Intervenor, and 2 ballots were challenged. Thereafter the Intervenor filed timely objections to the election. After an investigation, the Regional Director, on June 7, 1955, issued and duly served upon the parties his report on objections, which is at- tached hereto. In his report the Regional Director made various factual findings, and concluded that the Intervenor's objections lacked merit, and recommended that they be dismissed and that an appropriate certification be issued by the Board. The Intervenor filed timely ex- ceptions to the Regional Director's report on objections. The Board has considered the Intervenor's objections, the Regional Director's report on objections , and the Intervenor's exceptions thereto. For reasons hereinafter stated we find the Intervenor's objections and exceptions to be without merit. We therefore deny the Intervenor's request that a hearing be held on its exceptions to the Regional Di- rector's report. Not reported in printed volumes of Board Decisions and Orders. 114 NLRB No. 74. 1 -