Brittany Dyeing and Printing Crop.

BRITTANY DYEING AND PRINTING CORP. 785 Brittany Dyeing and Printing Corp . and Textile Workers Union of America, AFL-CIO Chauffeurs & Helpers Local Union #59, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Robert Weirauch. Cases Nos. 1-CA-2795 and 1-CB-579. February 24, 1960 DECISION AND ORDER On September 16, 1959, Trial Examiner Thomas A. Ricci issued his Intermediate Report in the above-entitled consolidated proceed- ings, finding that Respondent Brittany Dyeing and Printing Corp., herein called Brittany, 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 further found that the Respondent Chauffeurs and Helpers Local Union #59, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called Local Union #59, had not engaged in the unfair labor practice alleged in the com- plaint and recommended that the complaint against said Local Union #59 be dismissed in its entirety. Thereafter, Respondent Brittany and Respondent Local Union #59 filed exceptions, and briefs in sup- port thereof, to the findings, conclusions, and recommendations of the Trial Examiner with respect to the complaint against Respondent Brittany. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its power in connection with this case to a three-member panel [Chairman Leedom and Members Rodgers and Jenkins]. The Board has reviewed the rullings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The-rulings are hereby affirmed. The Board has considered the In- termediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the Trial Examiner's findings,' con- clusions, and recommendations except as modified herein. 1. Respondents contend that no actual request for recognition was made to Brittany by Textile Workers of Union of America, herein ' In the Intermediate Report, the Trial Examiner states, in the section entitled "The case against Brittany," that the decisive question herein is whether Textile Workers Union of America had claimed recognition of Brittany on March 4, 1959, in such a manner as to create a "real " rather than a "bare" question concerning representation. We do not agree . We find the decisive question to be whether recognition had been requested of Brittany by Textile Workers Union of America , prior to the execution of the aqi cen,ent with Local Union #59, in such a manner as to create a "rear" rather than a "bare" question concerning representation In his Intermediate Report, the Trial Examiner , in the 10th paragraph of "The facts " Inadvertently refers to Local 56 instead of Local 59. 126 NLRB No. 95. 554461-60-vol. 126-51 786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD called TWUA. Like the Trial Examiner, we find that a specific re- quest for recognition was unnecessary herein. TWUA did not know until February 23, 1959, that operations would be resumed, at what had been the Normandie plant,2 under the name Brittany Dyeing and Printing Corp. However, Production Manager Joblon 3 had, on February 20, discussed the application of the terms of the existing contract with Normandie to such resumed operations. We infer there- from that Joblon anticipated the application of the terms of the existing contract to Brittany inasmuch as the only operations sub- sequently resumed, or intended to be resumed, were those carried on under the Brittany name. Accordingly, TWUA's refusal of February 20 to deviate from certain terms of the existing agreement 4 was directed to the prospective resumption of operations of which Joblon had spoken. The differences in company names and in the identity of ownership, under the circumstances herein, cannot alter this fact. TWUA's negotiating with respect to changes in the existing contract terms, in the context within which such negotiations took place, thus was tantamount to a notification that TWUA deemed itself entitled, with respect to Brittany, to a continuance of the recognition accorded it by Normandie. Joblon, therefore, must have been aware of this fact, even though the name "Brittany" had not been mentioned at the February 20 meeting. In addition, Joblon's remarks during the course of this meeting, with respect to the contract with TWUA, are indicative of the fact that he believed that TWUA possessed more than a bare claim to represent the employees of Brittany. The sub- stantiality of the question concerning representation existing by virtue of TWUA's position was not diminished by the fact that Local Union #59 accompanied its request for recognition with authorization cards indicating majority status.5 We find, therefore, that Brittany's selec- tion of Local Union #59 as the bargaining representative of its em- ployees, in the face of TWUA's claim, was in derogation of the rights of said employees to make their own selection with respect to their bargaining representative and, accordingly, that such action on the part of Brittany, and its subsequent execution of a contract with z Normandle Printing Co. ceased operations on December 23, 1958, apparently for economic reasons. 3 The Trial Examiner refers to "Joplon " while the record makes reference to "Joblon." We recognize that both spellings are intended to refer to the production manager of Respondent Brittany. 4 Although Joblon had requested contract concessions wherein wages would be reduced from $2 021/2 and $1 751/2 per hour to $1.55 and $1 45 per hour for screen print and finishing employees , respectively , and concessions wherein fringe benefits would be gen- erally reduced , TWUA stated that it could grant concessions in the contract only with respect to the fringe benefits It is to be noted that the contract between Respondent Brittany and Local Union .H.59 provides for wage rates of $1 55 and $1 45 per hour for screen print and finishing employees , respectively s Halben Chemical Co, Inc, 124 NLRB 872. BRITTANY DYEING AND PRINTING CORP. 787 Local Union #59, was violative of Section 8(a) (1) and (2) of the Act.6 2. The record does not indicate that Local Union #59 possessed any knowledge with respect to TWUA's claim that it represented the employees of Brittany. We, like the Trial Examiner, find it unneces- sary to consider, therefore, the ramifications which possession of such knowledge might produce. Accordingly, we concur with the Trial Examiner's finding that Local Union #59 did not violate Section 8(b) (1) (A) of the Act. ORDER Upon the entire record in this case and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Brittany Dyeing and Printing Corp., New Bedford, Massachusetts, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Assisting or contributing support to Chauffeurs and Helpers Local Union #59, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, or any other labor organization. (b) Recognizing and contracting with Chauffeurs and Helpers Local Union #59, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, as the bargaining representative of its employees, unless and until said labor organiza- tion shall have demonstrated its exclusive majority representative status pursuant to a Board-conducted election among the employees. (c) Performing or giving effect to its March 4, 1959, agreement with said union, or to any renewal, extension, modification, or supple- ment thereof. (d) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collec- tive bargaining or other mutual aid or protection, or to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment as authorized in Section 8 (a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : e Midwest Piping & Supply Co., Inc, 63 NLRB 1060; Novak Logging Company, 119 NLRB 1573. 788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Withdraw and withhold all recognition from Chauffeurs and Helpers Local Union #59, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the collective- bargaining representative of its employees, unless and until said labor organization shall have demonstrated its exclusive majority repre- sentative status pursuant to a Board-conducted election among the employees. (b) Post at its New Bedford, Massachusetts, plant, copies of the notice attached hereto marked "Appendix."' Copies of said notice, to be furnished by the Regional Director for the First Region, shall, after being duly signed by the Respondent Brittany's representative, be posted by said Respondent and maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notice to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the First Region, Boston, Massachusetts, in writing, within 10 days from the date of this Order, what steps the Respondent Brittany has taken to comply herewith. IT IS FURTHER ORDERED that the complaint filed herein against Chauffeurs and Helpers Local Union #59, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, be, and it hereby is, dismissed in its entirety. 7 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 Ordei" the words "Pursuant to a Decree of the United States Couit of Appeals, Enforcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees, that : WE WILL NOT assist or contribute support to Chauffeurs and Helpers Local Union #59, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, or to any other labor organization. WE WILL NOT recognize or contract with Chauffeurs and Help- ers Local Union #59, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the bar- gaining representative of our employees, unless and until said labor organization shall have demonstrated its exclusive majority representative status pursuant to a Board-conducted election among our employees. BRITTANY DYEING AND PRINTING CORP. 789 WE, WILL NOT perform or give effect to our March 4, 1959, agree- ment with said Local Union #59, or to any renewal, extension, modification or supplement thereof. WE WILL withdraw and withhold all recognition from Chauf- feurs and Helpers Local Union #59, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the collective-bargaining representative of our em- ployees, unless and until said labor organization shall have demonstrated its exclusive majority representative status pursu- ant to a Board-conducted election among our employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights of self-organization, to bargain collectively through a representative of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities except to the extent that such right may be affected by an agreement re- quiring membership in a labor organization as a condition of employment as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. BRITTANY DYEING AND PRINTING CORP., 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. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding, with all parties represented , was heard before the duly designated Trial Examiner in New Bedford, Massachusetts, on July 28 and 29, 1959, on separate complaints issued by the General Counsel , one against Brittany Dyeing and Printing Corp., herein called the Company Respondent or the Company , and the other against Chauffeurs and Helpers Local Union No. 59, affiliated with International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America, herein called Local 59 or the Respondent Union . Answers were duly filed by both Respondents, in which each denied the commission of any unfair labor practices. The issues litigated were whether the Respondent Company violated Section 8(a) (1) and (2 ) of the statute, and whether the Respondent Union violated Section 8(b)(1) (A). The two complaints, each based on a separate case, were consolidated by order of the Regional Director. Upon the entire record and from my observation of the witnesses , I make the following: FINDINGS AND CONCLUSIONS I. THE BUSINESS OF THE RESPONDENT COMPANY Brittany Dyeing and Printing Corp., a corporation existing under the laws of the State of Massachusetts , maintains its principal office and place of business at 1357 Rodney French Boulevard, New Bedford, Massachusetts, where it is and has been continuously engaged in the business of dyeing and printing textiles and related 790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD products. In the course of its business it receives raw materials transported in -interstate commerce from other States of United States, and causes substantial quantities of its products to be sold and transported out of the State of Massachusetts. It annually ships such products directly to out-of-State points in an amount valued at over $50,000. The complaint alleges, the answers admit, and I find that the Company is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Chauffeurs and Helpers Local Union No. 59, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The issues: On March 4, 1959, the Respondent Company, Brittany, signed a collective-bargaining contract with the Respondent Union, Teamster Local 59, rec- ognizing it as the exclusive bargaining representative of all its production and main- tenance employees. Textile Workers Union of America, AFL-CIO, herein called TWUA, charged that execution of this contract was an unlawful act by both Re- spondents because TWUA had long represented the employees involved, it had continued to assert to Brittany its claim to such majority status, and Local 59 did not on the critical day in fact represent a majority of the employees. Consistent with such charges, two complaints were issued-one against the Company and one against Local 59. The first alleges that because TWUA's claim was real and alive, and because Local 59 represented only a minority of the employees, the Company unlawfully assisted Local 59 and unlawfully coerced its employees by signing the contract, in violation of Section 8(a)(2) and (1) of the Act respectively. The second complaint alleges that for the same two factual reasons Local 59 unlawfully coerced the employees in violation of Section 8(b)(1)(A) of the Act. Thus the only act to be appraised as lawful or unlawful is execution of the single contract on March 4, 1959. The facts: In large measure, the facts upon which the complaints rest are undis- puted. The only factual issue to be resolved so far as the evidence is concerned arises from a direct conflict between the testimony of Carignan, regional director and secretary-treasurer of TWUA, and Joplon, officer, stockholder, and general manager of the plant where the employees covered by the contract work. Carignan testified he had certain conversations with Joplon after the first week in January 1959, and up to February 20, and Joplon flatly denied he ever saw or exchanged a single word with Carignan after the first few days of January. The pertinent facts logically fall into two categories-the relationship between Brittany and TWUA, and the relationship between that company and Local 59. All of the following is undisputed. At 1357 Rodney French Boulevard, in the city of New Bedford, Massachusetts, there exists a plant, devoted to printing and dyeing textiles, with all the usual equipment. For upwards of 15 years it was operated by a company called Normandie Printing Co., and throughout that time TWUA was the recognized majority representative of the employees pursuant to successive written collective-bargaining agreements. The last contract was made in 1957, and by its terms extended into October 1959. Among the substantive provi- sions of that contract were the wage rates, set at $2.021/2 and $1.751/2 per hour for screen print and finishing respectively, the major classifications. About 126 em- ployees were at work. Joplon, the president and a stockholder in Normandie, was in direct charge of the day-to-day operations of the plant; he signed contracts on behalf of Normandie and regularly dealt personally with Carignan in matters of labor relations concerning the employees. Because of financial difficulties, the plant closed on December 23, 1958. On learning of the shutdown Carignan telephoned Joplon to discuss the situation. Carignan expressed concern over the welfare of the employees and asked Joplon about the prospects of early resumption of work. Joplon was apologetic that it had occurred so soon before Christmas, explained the directors over him had given no choice because of mounting financial losses, and said he could predict nothing about the future. The operation was refinanced. Precisely who the major debtors, creditors, and new owners were is unclear. It does appear, however, that a group called Dartmouth Textile Works had advanced a $125,000 loan to Normandie a year earlier and was calling in its loan. Joplon, as he testified, tried to raise money to pay Dartmouth off immediately after the shutdown. At one point he said he was doing this on behalf of a customer, and not for himself: "This had no connection with me." BRITTANY DYEING AND PRINTING CORP. 791 Elsewhere he said ". . . my plan was to make a living the best way I possibly knew how," and that he and one Schaffer, who was associated with him in Normandie, had discussed buying machinery and equipment for printing and finishing from Normandie. It does appear that for a period, while the plant was closed, Joplon was either out of the picture or in uncertain status. In any event , operations were resumed on about February 14, 1959, with only a few employees to operate the plant. A new company was formed , called Brittany Dyeing and Printing Corp., the Respondent here. Joplon emerged as minority stockholder and production manager in charge of operations . By February 23 there were approximately 16 or 17 em- ployees at work. On February 14 TWUA held a meeting of employees who had worked for Nor- mandie Print, where the reopening of the plant was discussed . A committee of 10 was selected to "watch the situation." Another such meeting was held at a hall on February 22, where about 95 old employees gathered and talked the matter over with Carignan. An almost unanimous strike vote was taken and on February 23 TWUA established a picket line in front of the Company's building, which was occupied by this plant and other concerns engaged in unrelated commercial activities. The pickets were not present or former employees but TWUA representatives; they carried placards reading "plant on strike-no contract-no work." The picketing has not been discontinued. On March 4 TWUA wrote a letter to the Respondent Company, claiming that its existing, unexpired contract with Normandie Print was still in force against Brittany as a party successor to the contract. Turning now to the conflict in testimony, Carignan testified that after his early January talk with Joplon, he called the latter several times on the telephone to inquire further what the outlook was and that on each occasion Joplon replied he could not say definitely but that he was attempting to raise additional capital to resume operations . Carignan explained he continued to call because the employees kept inquiring of TWUA what they could expect. Carignan also reminded Joplon of the existing contract, and told him that when work resumed it would have to be in accordance with those contract terms. Still according to Carignan, he made a final call and arranged a luncheon meeting with Joplon at the Cathay Temple, a restaurant in New Bedford, where they met on February 20 . Here Joplon told him operations were about to resume , but that there would have to be economic concessions by TWUA, on pay rates and fringe benefits. Carignan replied there could be no reduction in wage rates but that his union would consider contract changes in fringe benefits , possibly changing these aspects of the agreement from a "Metropolitan" to a "New England" type contract. Joplon asked Carignan to agree to rates of $ 1.55 and $ 1.45 per hour in place of the earlier higher ones, and Carignan refused. In direct contradiction, Joplon testified Carignan "lied." According to him, he met Carignan at the restaurant a few days after New Year 's Day because he felt "obligated" to explain the shutdown and to apologize, but that he never thereafter heard from Carignan, or met with him, or spoke to him , until he received the March 4 letter after the contract with the Teamsters was executed . Asked to explain what he understood to be the meaning, or purpose of the picket line estab- lished by TWUA on February 23 , he said it was only a "harassment," and something "beyond my comprehension." On the activities of Local 56, and the Company's response thereto there is no factual issue. All parties stipulated that on March 4, 1959, a majority of the employees of Brittany had signed membership application and representation authorization cards in favor of Local 59 , and on that day Brittany executed a contract in which that union was recognized as exclusive representative of all the employees. The agreement contains a lawful union-shop clause requiring present members to retain their membership in, and new employees to acquire membership in, Local 59 after 30 days of employment. Tripanier, president and organizer of Local 59, detailed further, without contra- diction, that on about February 23 some employees communicated with his union seeking representation , that he visited the plant several times shortly thereafter, and that he obtained 12 authorization cards signed by employees . On February 27 Local 59 wrote a letter to Brittany claiming majority representation and on the same day its attorney wrote to the Massachusetts State Board of Conciliation and Arbitration , advising it that a strike threat existed at Brittany. Mark Sander, a Massachusetts board conciliator , telephoned Joplon on Monday morning, March 2, and invited him to the office of Local 59. Joplon immediately proceeded to the office of Local 59, where the conciliator compared the signatures on the au- thorization cards with the Company's tax withholding signature cards for all its employees, and voiced his satisfaction that Local 59 represented a majority. Tri- 792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD panier and Joplon discussed the terms of a contract on Monday afternoon and dur- ing Tuesday in the plant . Late that evening Tripanier explained the agreed-upon terms to the employees and the next day he and Joplon signed the contract in the plant . The wage schedules set out in it vary from $ 1.25 to $1.55. Screen printers receive $1 .55 per hour, and finishers $1.45. I credit Cangnan's testimony that he called Joplon a number of times during January and February, that he told Joplon in January TWUA would insist future operations must follow the terms of the current contract , that on February 20 Joplon asked him to agree to reduce the wage rates , and that Carignan refused. Joplon's relations with TWUA had been friendly; they must have been, for Joplon said he felt an obligation to explain to Carignan (as distinguished from the em- ployees ) and to apologize for the sudden and, apparently, unannounced closing of the shop. If I am to believe, as Joplon testified, that not a word passed between him and Carignan or any TWUA representative after the first week of January, I must also believe that despite their long, amicable relations , Carignan started picketing the plant without first telling Joplon why he was doing so and without making any attempt, in a friendly way, to adjust TWUA's grievance with Joplon, as they necessarily must have done in the past . I would also have to believe that despite their past relations, Joplon saw his plant picketed by that union continuously from February 23 to March 4 without once asking Carignan what it was all about. These are both highly improbable eventualities. Carignan's story instead is logically consistent with certain objective facts clear on the record. He said Joplon wanted to reduce wage rates very substantially, and this is exactly what Joplon did when he reopened . Certainly the employees, who had been paid the higher wages, would wish to retain them. And certainly Joplon had the desire to reduce them . It can hardly be suggested the reduction in pay was one of the demands of Local 59, a demand to which Joplon may have acceded when he signed up with the new union . Unquestionably, therefore, the new and lower rates were instituted , precisely consistent with the plan which Joplon is said to have first proposed to Cangnan, as soon as employees were recalled to work. Just as I have no reason to disbelieve Tripanier's testimony that he solicited membership among the plant workers , so I must accept the fact that Carignan did hold two meetings with the old group of employees on February 14 and again on February 22, that they discussed the new wage rates, and , that they voted to strike. The plant had started operations ; the new rates were in effect; and the employees knew it. Quite apart from .the special circumstances here of recent good feeling, and of, perhaps, occasional arbitrary and highhanded treatment of employers by unions, it would be an utterly abnormal strategy for an established union to proceed with strike action without first at least attempting to obtain its demands by simple request. Indeed, strike action, without any word to an employer as to the reason , would be self-negating and necessarily abortive. Much more likely therefore, as Carignan testified, he already knew, and the employees knew through him, that the disagree- ment upon wages, having been discussed with Joplon, left them the choice of striking or yielding. And finally, Joplon, as a witness , did not impress me. He was evasive generally and by his demeanor on the stand revealed a frivolous and jocular attitude towards the entire proceeding. Moreover, he insisted he was unable to recall dates and details concerning matters that must have been of serious importance to him. For example, he said there came a time when promissory notes were delivered to buy off old creditors, he ceased being an officer and stockholder of Normandie, he acquired a financial interest in the new company , and all parties exchanged written general releases putting an end to old liabilities . He said all this took place simul- taneously one day, but he could not remember the date. On the total record, considering the inherent probabilities of the events as they unfolded, and in view of Joplon's demeanor on the witness stand , I credit Carignan and find that Joplon told him during January and February he was making efforts to reopen the plant with new capital , that he wanted TWUA to agree to a substantial reduction in wages, and that he did meet and discuss his plans for reopening the plant with Carignan on February 20, 1959. Analysis and Conclusions The Case Against Brittany The complaint against Brittany calls the Company's execution of the March 4 contract unlawful for two reasons: (1) because a rival claim for representation by TWUA was then pending ; and (2) because Local 59 did not represent a majority `BRITTANY DYEING AND PRINTING CORP . 793 of the employees on that day. As I understand the theory of the General Counsel the two grounds are not really disassociated by rather one flows inextricably from the other. Thus, he stipulated with all parties that on March 4 a majority of the employees had in fact signed authorization cards in favor of Local 59. He referred to this type of majority as a majority "in fact," to be distinguished from a majority "in law," which, he says, has not been shown in this case. He also admitted that there is no direct or affirmative proof establishing the fact that Local 59 only repre- sented a minority of the employees. Instead, he explained, that the essential sub- sidiary fact of minority status is affirmatively established , and necessarily flows from the existence of the question concerning representation found in the continuing claim for majority status by TWUA. In short, he conceded that unless it is first found that a real demand for majority recognition has been proved on this record, there is no other proof that Local 59 represented only a minority . In substance therefore this complaint is essentially grounded on the assertion that Brittany un- lawfully recognized one union when there were two claiming representation. In this type of situation , Board law is clear. Where an employer is confronted with rival union claims for exclusive recognition, one of which is substantial, reliably supported by reasonable evidence, and the other no more than a "bare" claim without substantiation, the employer is free to recognize and deal with the union which in fact represents the majority of the employees .' Where instead he extends recognition to a union which ostensibly evidences majority status , at a time when a rival labor organization is also claiming exclusive recognition in circumstances which raise a "real" question of representation , or a substantial issue as to which union is the true choice of the employees, the employer violates the general proscription of the statute which guarantees to all employees freedom of choice in the matter when he himself resolves the question by according exclusive recognition to one of the com- peting unions. This is the rule of Board law announced in the Midwest Piping case, long enforced, and recently affirmed ? Such action by an employer, in addition to unlawfully coercing the employees, has also been held to constitute unlawful assist- ance to the contract union in further violation of the Act.3 The question here, therefore, is whether TWUA had claimed recognition of Brittany on March 4, 1959, and in such circumstances as to create a "real" question of representation. I am satisfied, on the total evidence, and I find, that it did so. Joplon, officer and part owner of both Normandie and later of Brittany , was at all times the manager and in direct control of operations of the plant. Whoever the other owners may have been from time to time, and however the corporate entity may have changed , it was always he who had charge of labor relations and dealt with the union or unions on behalf of the "Company." The total complement of employees shrank in the changeover between December 1958 and the following March, but the physical plant, the type of machinery, the job classifications, the nature of the work, the products, and even some of the customers remained the same Of the approximately 14 employees at work on March 4 , 10 or 12 had been recalled from the earlier operations These were therefore predominantly employees covered by the earlier contract and long represented by TWUA. The first thing Carignan told Joplon, early in January, as they discussed the chance of reopening the plant, was that the unexpired contract must continue to govern conditions of employment . But insistence upon the effective force of a current contract necessarily includes the underlying claim to recognition . There is no indication Joplon disclaimed the contract . Carignan con- tinued to call Joplon from time to time. He did not in so many words "claim majority representation"; his immediate concern was the reopening of the plant, and that is what he talked about. The necessary import of his calls, however, could only have been a continuing representation interest in the employees , and Joplon could hardly have thought otherwise. This is what the dealings between these two men had always rested upon. Indeed, Carignan had no other plausible or indicated reason for calling Joplon at all. As to the Cathay Temple meeting, held after the plant had resumed work, it was an out and out bargaining conference . Joplon wanted to pay less for labor, and TWUA insisted upon more. Certainly, while an employer's representative is negotiating the terms of employment with a union agent who for years bargained with him for the very employees involved, that union need not keep repeating "we claim to represent a majority ." Its claim, as a minimum, is implicit in every word spoken by both sides. Joplon refused to yield to TWUA's William Penn Broadcasting Co, 93 NLRB 1104 2 Midwest Piping it Supply Co , Inc., 63 NLRB 1060; Novak Logging Company, 119 NLRB 1573 3 Jersey Contracting Corp., 112 NLRB 660. 794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wage demands, and 3 days later pickets appeared with signs reading "No contract no work." 4 In seeking to avoid the conclusion that TWUA continued to reassert its majority representative status for these employees regardless of the name or identity of the company employer at any given moment, the Respondent Company relies upon the fact a new business concern came into existence , and that Normandie Printing, which had signed TWUA's last contract, no longer existed. It would have it that Carignan's continued demand, if any, was against Normandie . This is not only a superficial technicality, but it also conflicts squarely with the fact that by February 20 Brittany had already been formed, and the employees for whom Carignan was negotiating were in fact employees of the new company. In view of this fact, if no other, Joplon's expressed belief that he considered TWUA's picket line as directed against Normandie, and not against the Respondent, loses all persuasion. Not only had Normandie ceased to be, but there was no other textile factory in the premises being picketed. I cannot join in the thought that any of the parties did not know exactly who, and why TWUA was picketing the plant. Indeed Joplon confessed this knowledge as early as February 22, when , on learning TWUA had decided to start picketing, he told a newspaper reporter : "If Mr. Carignan has a majority , I would be glad to talk to him." On the basis of all the foregoing , and on all that appears on the record , I find that the continuing claim for recognition of TWUA was a substantial and "real" one within the concept of the Board 's past decisions in this type of situation . Accord- ingly, as "an employer faced with conflicting claims of two or more rival unions which give rise to a real question concerning representation may not recognize or enter into a contract with one of these unions until its right to be recognized has finally been determined under the special procedures provided in the Act," I find that by executing the March 4, 1959, contract with the Respondent Local 59, the Re- spondent Company violated Section 8(a)(1) and (2) of the Act.5 The Case Against Local 59 The ultimate complaint allegation against the Respondent Union is that it violated Section 8(b)(I)(A) of the statute, which reads: "It shall be an unfair labor prac- tice for a labor organization or its agents . to restrain or coerce . employees in the exercise of the rights guaranteed in Section 7: . .. . " It is charged with having violated this section by one act, and one act alone-execution of the March 4, 1959, contract with Respondent Company. Two major factual allegations are asserted in the complaint, essential subsidiary facts intended to establish a reason why the act of making the contract was unlawful. The first (paragraph 8a) alleges that Local 59 "did not represent a majority of the employees" on the day the contract was executed. The second (paragraph 8b) alleges that on that day a claim for recognition by TWUA "was active and continuing." On their face, these two facts do not appear to bear any relationship one to the other, and the complaint nowhere suggests that they do. If the complaint is considered literally it can be taken as meaning that if either of the two assertions is proved, the execution of the contract becomes unlawful. As to the first ground-minority status-the Board has recently held at execution of a contract giving exclusive recognition to a union which in fact represents only a minority of the employees covered, is an act of coercion upon the employees by the union and therefore a violation of Section 8(b)(I)(A).e As to the second ground- the fact that a rival union was then claiming representative status-there is no legal precedent holding that such a fact alone suffices to make illegal, by a union, an otherwise perfectly lawful contract. And the General Counsel, in his oral argument at the hearing, conceded this to be so. With this admission by him, a next possible appraisal of the intendment of the complaint is a theory that both subsidiary facts-minority status and rival claim- established and considered together, constitute the necessary support for the ultimate contention that execution of the contract was therefore unlawful But this cannot be the theory of the case, and the General Counsel conceded that also when he agreed there was no independent proof of minority standing. If fact number one- minority status-suffices to prove illegality, the second is not necessary, especially 4 Compare, United Rubber, Cork, Linoleum, and Plastic Workers of America, AFL-CIO, and its Local 511 (O'Sullman Rubber Corporation), 121 NLRB 1439, enfd 269 F. 2d 694 (CA 4), which equates a contract demand with recognition demand 5 Novak Logginq Company, supra 6 Bernhard-Altmann Texas Corporation, 122 NLRB 1289. BRITTANY DYEING AND PRINTING CORP. 795 where, as here, fact number two-rival claim-has never been deemed an obstacle to exclusive recognition. The foregoing reasoning leads to but one conclusion concerning exactly what subsidiary facts must be established to prove the unfair labor practice, and that is: Local 59 in fact represented only a minority of the employees on March 4, 1959. That this is the sine qua non to support the entire complaint against the Respondent Union the General Counsel, at least during one portion of his argument, did agree of the record. In the light of his factual stipulation that a majority of the em- ployees-12 out of 14-had signed membership authorization cards in favor of Local 59 before the contract was executed, his contentions concerning the evidence become obscured. Having proved that there did exist at that time a rival claim by TWUA, which must be considered as having raised a real question concerning representation, he requested a further factual finding-based on that evidence alone-that Local 59 represented no more than a minority of the employees. If the above breakdown of the factual allegations of the complaint seems almost childlike in its simplicity, it is only because the General Counsel explicitly said he rested his case against the Union Respondent on pure logic.7 He admitted, as indeed he must, there is no direct evidence to prove minority status affirmatively. He wants it reasoned, from the sole fact of a rival claim, that the "fact" of the authori- zation cards received in evidence be supplanted by a logical conclusion that the cards establish "nonmembership," instead of "membership." The issue, then, being presented as one of a logic, I can only test it against the same process of reasoning. I view the cards placed in evidence at least as prima facie evidence that Local 59 represented a majority. To remove the cards from consideration, the General Counsel pointed to certain language regularly appearing in those Board decisions involving unfair labor practices by employers who make contracts with one of two simultaneously competing unions. Thus, in the original lead case of the subject, Midwest Piping, supra, the Board said that cards "obtained during the heat of rival organizing campaigns . . . do not necessarily reflect the ultimate choice ." of the employees. Later, continuing to apply the same rule of law where an employer is charged with having arrogated to himself the privilege of deciding which of two competing unions in fact represents a majority, the Board described such cards as "notoriously unreliable." 8 The same language continues to appear consistently in later decisions, always critical of an employer's actions in favoring one of two unions. See, for example, Novak Logging Co., supra, at footnote 7, reaffirming, by direct quotation, the descriptive language of the Midwest Piping case. I think the General Counsel in this case has not proved affirmatively that Local 59 represented only a minority of the employees, or did not represent a majority. Lack of majority, although a negative proposition, is one that must be proved af- firmatively to support the complaint. The General Counsel concedes that on a record showing only that a contract is executed, with no reference whatever made to any cards-good or bad-it cannot be found affirmatively that the Union does not represent a majority. He also added it is not his contention the union bears an af- firmative burden, in the first instance, to disprove a mere allegation of minority status, or that it in fact represents a majority. If to this skeleton case there is then added evidence of cards, which, for one reason or another, are found to be un- reliable, and therefore to be ignored, can it be said, as a matter of logic, that there remains more than appeared when no cards at all were ever shown? I think not. When questionable, or doubtful cards are eliminated from the picture, nothing re- mains. But that is precisely the situation when the record shows only a contract and nothing more. The General Counsel sees more than there is in the words "un- reliable" or "not necessarily reflecting." Each card reads: "I authorize the Union." To say such a card is "unreliable," or does not "necessarily reflect" the employee's true intent, is to say it does not truly reveal his state-of-mind, or, one does not know. But not knowing cannot be equated with affirmatively knowing, or stating that the employee does not authorize the union to act on his behalf. He may or he may not, 7 In his argument , the General Counsel said . . . how does the fact that the cards are notoriously unreliable equal affirmative proof of minority status " Well, that to me seems to be a logical demonstration. If I can demonstrate that a thing is logically null, . . I demonstrate in effect that it equals zero. That's the heart of my argument as to the cards , and shortly, if I show that these cards are no good, as I would , for instance if I show they are obtained through fraud , deceit , or misrepresentation , I show they are invalid , there- fore these cards cannot be counted , therefore it follows that in the counting they represent nothing , and the Union represents a minority 8 Siinbeain Corporation, 99 NLRB 546 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is all that follows from calling the card "unreliable." The positive conclusion-that he, or the employees, desire the opposite of what they have written-can only be stated, on the basis of something more than merely disregarding the evidence that appears. Apart from the matter of pure logic, the General Counsel has misconceived the true purport of the Board's holdings in the Midwest Pipe line of cases. The very problem giving rise to all these cases is itself a question-called a "question con- cerning representation." With rival unions organizing the same group of employees, how determine which, if any, represents a majority? The employer may not make the decision, it is for the Board to resolve the question by secret election under the scheme of the statute. Recognizing that under the statute a union in fact enjoying majority status is entitled to exclusive recognition, and, indeed, that an employer is obligated to accord it, the Board is careful to avoid saying that the contract union does not have such status at the moment. Were the Board to say this, it would itself be resolving the basic question, adversely to that union, in the absence of the very election which the Board says is the only way to answer the question concerning representation in these circumstances. It is for this reason that the language of those decisions only cast aspersions upon the cards, and does not say whether they are good or bad. In this way, the question of majority status is kept alive for an elec- tion to resolve. When, therefore, the General Counsel reads into those decisions a positive finding that the employees do not want a particular union, he departs from the entire concept of the cases. Interwoven through the General Counsel's argument, but in essence not a separate and distinct contention, is the theory that because the employer confers an unwarranted prestige upon the contract union, the union also coerces the employees by accepting it. He called this theory the "other side of the coin" of the Midwest Piping rule. I am not sure I understand this precisely; the General Counsel said it stands apart from the first argument involving the "logical" demonstration of lack of majority. The position was not submitted in writing; from a careful study of the oral argument made at the hearing, the theory appears to be as follows: (1) When Brittany signed the March 4 contract with Local 59, its act was unlaw- ful and therefore the resultant agreement was itself "illegal," a word the Board has often used to describe the contract in the context of a Midwest Piping situation; (2) an unlawful contract exerts a coercive effect upon the employees which it em- braces. For example: a closed-shop contract forces employees to join the union; exclusive recognition deprives the employees of freedom to choose a union other than that which signed the contract; (3) as the coercion, or illegal compulsion upon the employees, springs from the contract itself, the parties thereto-each bene- fitting from its existence-must be held accountable for its inherent evil. According to the General Counsel, Brittany signed only in order to avoid destructive picketing by the Teamster Local, and Local 59 signed in order to gain recognition without risk- ing the results of a secret Board election; and (4) finally, as the evil lies in the contract itself once it is made, intent and motive by the Respondents become im- material, and therefore, there is no need to prove, either that Brittany was aware the rival claim was anything but a bare, unsupported request, or that Local 59 ever knew TWUA existed, let alone was claiming in any way. So long as TWUA's claim in fact was a substantial, "real" one, nothing else need be proved except execution of the contract. I think this entire ingenious structure of ideas cannot avail to support the com- plaint against Local 59 in this case because it rests on too weak a foundation. Repeatedly, the General Counsel insisted that when an employer makes this type of contract "it is the Midwest context that coerces." I help him by giving body to the nebulous thought, and read "context" to mean "contract." But even with so tangible a concept, the nature of the unfair labor practice found in the case against the employer is being totally misread. Coercion, or restraint upon employees is a consequence that flows from certain conduct of people, acting either individually or on behalf of employer companies or labor organizations. Coercion does not flow from inanimate objects; rather, a signed contract, or a posted notice, or a letter containing a threat is the means whereby the actor brings illegal pressure upon those affected by the written document. Restated: the contract evidences, in the best way possible, the act of a respondent which the Board finds to have been an unfair labor practice. When Brittany signed up with Local 59, it was Joblon, its manager, and the Company, which deprived the employees of their freedom of choice. I do not find that the March 4 contract is itself illegal. Indeed I may not, for on its face it conforms with all statutory requirements. I find that the Company erred in pre- suming to usurp the Board's function. There are other weaknesses inherent in the General Counsel's last argument. To say that because the Company acted illegally in signing the contract, it follows, as BRITTANY DYEING AND PRINTING CORP. 797 "the other side of the coin," that Local 59 also violated the law, overlooks the fact that Brittany made a choice between two unions , while Local 59 only did what comes naturally. In the very nature of organizaional activities and the collective bargaining process, demands are not made upon unions, as they are upon employers. The "choosing" element, which the employer unlawfully preempts away from the em- ployees when he picks a union for them, is never a factor in a union's activities. Its only choice, if such it can be called , is to deal or not deal with the employer. The union, therefore, has nothing to do with any labor organization. Once in possession of membership cards voluntarily signed by a majority of employees, all it can do is demand exclusive bargaining rights, as the entire scheme of the Act contemplates. I need not say what the answer would be in other circumstances . There is no basis on this record-suspicion apart-for saying Tripanier, business agent of Local 59, knew of the long history of TWUA bargaining on behalf of these employees, of Carignan's futile negotiations with Joplon on February 20, or of all those other facts, except for the picketing, which establish the real rival claim in this case It has not been shown that Local 59 represented only a minority of the employees on March 4. No other persuasive reason has been advanced for a legal conclusion that, despite the fact 12 out of 14 employees authorized Local 59 in writing , that union could not lawfully negotiate or sign an exclusive recognition agreement with the Company. I shall therefore recommend that the complaint against Local 59 be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent Company set forth above , occurring in connec- tion with the operations of that company as set out 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 commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent Company has engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative action necessary to effectuate the policies of the Act I have found that the Respondent Company recognized Chauffeurs and Helpers Local Union No. 59 , affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America , and entered into an agreement with it on March 4, 1959 , during the pendency of a question concerning the repre- sentation of the employees covered thereby. By such conduct, the Company has interfered with, restrained , and coerced its employees in the exercise of their right freely to select their own bargaining representative , and has accorded unlawful assistance and support to that union. In order to dissipate the effect of the Re- spondent's unfair labor practices, I shall recommend that it be ordered to withdraw and withhold all recognition from Chauffeurs and Helpers Local No. 59, and to cease giving effect to the aforementioned agreement , or to any renewal or extension thereof, until such time as that labor organization shall have demonstrated its exclusive majority representative status pursuant to a Board -conducted election among the employees. Nothing herein shall, however, be construed to require that the Respondent Company vary or abandon any existing term or condition of employment. Upon the basis of the foregoing , and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW I Brittany Dyeing and Printing Corp . is an employer within the meaning of Section 2(2) of the Act. 2. Chauffeurs and Helpers Local Union No. 59, affiliated with international Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. , 3. By contributing unlawful assistance and support to Chauffeurs and Helpers Local Union No. 59, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, the Respondent Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(2) of the Act. 4. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent Company has engaged in 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The foregoing 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.] Anderson Express Ltd. and James McCaffrey and Local Union 295, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case No. 2-CA-6477. February 24, 1960 DECISION AND ORDER On September 16, 1959, Trial Examiner Louis Libbin issued his Intermediate Report in the above-entitled proceedings, 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 Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Bean, and Fanning]. 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 brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommen- dations of the Trial Examiner.' ORDER Upon the entire record in this case and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent Anderson Express Ltd., New York, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Maintaining in effect, implementing, or renewing paragraphs (B), (C) and (D) of Section 6 of the agreement executed on October 8, 1958, with Local Union 295, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, or from executing or maintaining in effect any agreement with the above- named or any other organiaztion containing union-security provisions not authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. i The Respondent's request for oral argument is denied as the record, the exceptions, and the brief, adequately present the positions of the parties. 126 NLRB No. 97.