Leroy Stoves and Motor Co.

LEROY STOVESAND MOTOR COMPANY 19 Leroy Stovesand Motor Company and District 9, International Association of Machinists, AFL-CIO, and Automotive, Petro- leum and Allied Industries Employees Union, Local 618, affili- ated with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. Case No. 14-CA-2070. April 5, 1960 DECISION AND ORDER On October 21, 1959, Trial Examiner John C. Fischer issued his In- termediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report at- tached hereto. Thereafter, the General Counsel and the Charging Parties filed exceptions to the Intermediate Report and supporting briefs; the Respondent filed a brief in support of the Intermediate Report and a reply brief. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- termediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. [The Board dismissed the complaint.] MEMBERS JENKINS and FANNING took no part in the consideration of the above Decision and Order. INTERMEDIATE REPORT STATEMENT OF THE- CASE Upon a charge filed by District 9, International Association of Machinists, AFL-CIO, and Automotive, Petroleum and Allied Industries Employees Union, Local 618, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, jointly, on February 16, 1959, the General Counsel of the National Labor Relations Board, by the Regional Director for the Fourteenth Region, issued his complaint, alleging that Leroy Stovesand Motor Company, herein called the Respondent, had been engaging in and is engaging in unfair labor practices affecting commerce as set forth and defined in the National Labor Relations Act, as amended 61 Stat. 136 (herein called the Act). A hearing was held on June 16, 17, and 18, 1959, at St. Louis, Missouri, before John C. Fischer, the duly appointed Trial Examiner. Full opportunity to be heard, to ex- amine and cross-examine witnesses, and to produce evidence, give oral argument, and submit written briefs was afforded all parties. The Respondent, in its timely filed answer, denied each and every allegation of unfair labor practices as charged. Upon motion by Respondent, a bill of particulars was granted. Certain other mo- tions made during the trial, and upon which definitive rulings were withheld, are disposed of in light of findings and conclusions hereinafter. The complaint alleged that the Respondent violated Section 8(a)(1), (3), and (5) in that it granted,a wage increase in order to discourage membership in the Union and to dissipate the Union's majority, and also discharged Ervin Gillman because of his activity in 127 NLRB No. 4. 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD behalf of the Union. Further, since on or about February 11, 1959, and there- after, the Respondent by its officers, agents; and representatives refused to bargain collectively with the authorized agents of District 9, International Association of Machinists, AFL-CIO, and Automotive, Petroleum and-Allied Industries Employees Union, Local 618, jointly. • Upon the entire record, and from my observation of the witnesses, I hereby make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT COMPANY Respondent Leroy Stovesand Motor Company is a Missouri corporation which in the course and conduct of its business sells new and used automobiles and operates an automobile service and repair shop at Imperial, Missouri. Respondent's gross volume of retail sales made in the course and conduct of its business operations during the past 12 months, a representative period, has been in excess of $500,000. A substantial portion of said sum results from the sale in Missouri of automobiles received by Respondent from without the State of Missouri. It is admitted and I find, therefore, that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED (a) District 9, International Association of Machinists, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. (b) Automotive, Petroleum and Allied Industries Employees Union, Local 618, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A brief resume of the complaint filed on April 29, 1959, alleges that since Janu- ary 9, 1959, a majority of Respondent's employees in a unit described as consisting of all automotive mechanics; machinists; electrical machinists; welders; trimmers; metal men; fender, body, and radiator repairmen; apprentices; foremen; testers; and parts lubrication and cleanup employees, excluding office clerical; professionals; guards; and supervisors as defined in the Act, designated and selected the Union as their representative for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment. The com- plaint further alleges that on January 9, 1959, Respondent granted a wage increase to employees within the unit above-described in order to discourage membership in the Union and to dissipate the Union's majority in the unit described. Com- plaint also alleges that Respondent discharged Ervin Gillman on February 14, 1959, because of his activities on behalf of the Union and in order to dissipate the Union's majority, and as above-stated refuses to bargain, all in violation of the Act. General Counsel's Contention In his opening statement to the Trial Examiner, the General Counsel argued that the Respondent embarked on a course of bargaining and continued bargaining, without ever questioning the majority status, and then suddenly, in bad faith, ques- tioned the majority status in order to delay bargaining. The General Counsel cited a wage increase granted to the employees on January 9 and an alleged dis- charge of Mechanic Gillman as evidence of Respondent's bad faith and refusal to bargain. Advent of the Union The sequence of the union organizing activity involved herein may be taken in part, from the testimony of James Redman, business representative of District 9, IAM. Redman stated that he received a call some time in October 1958 from one of his union members who was employed at Belmar Chevrolet telling him that the employees of Stovesand Motors wanted to get organized, but requested that this matter not be brought up and acted upon until after the first of the year (January 1959). Redman stated that around the first of January he received another call requesting that he send him authorization cards; these cards would be presented to Stovesand's employees.' Accordingly Redman sent the authorization cards, and in 'Redman testified that about 4 years prior to this organizing activity, LAM Business Representative Van Gibber was unsuccessful in unionizing Stovesand's Ford Agency, but did organize Boemler Chevrolet Company in Imperial. LEROY STOVESAND MOTOR COMPANY 21 due season received 12 cards signed by Stovesand's employees. The facts are that -on January 8 and 9, 1959, Henry Rush secured the signed cards of Millard Baird, Ervin Gillman, Harold Naes, Jacob Schaffer, Arthur Smith, August Luebke, Lonnie Lucy, Herman Baum, Kenneth Lee, Bill Laub, and William Luebke. Subsequently, on February 2, Archie Livingston and Annabell Baum signed Teamster union cards-the others having signed Machinist applications. On January 12, Redman, accompanied by Teamster Representative Gibbs, went to visit Stovesand, but Stovesand was not there. However, they met with Mechanic Rush and arranged a meeting with all of the employees in the Company's body shop. (Parts department employees Livingston and Annabell Baum were not present.) Rush was elected spokesman for dealings with Manager Stovesand, and Redman told the employees that the Union would mail a notice to Respondent stating that the unions represented Respondent's employees for purposes of collective bargaining and request a meeting. On January 21, Redman, on the stationery of District 9, JAM, wrote Respondent advising that a majority of its employees in the above-described unit had authorized District 9, 1AM, and Local 618, Automotive, Petroleum and Allied Industries Employees Union, to represent them for purposes of collective bargaining. The notice requested a meeting within the next week or 10 days for the purpose of negotiating a labor agreement. This meeting was held on January 26 with Stovesand at his office. Redman further testified that when he and Gibbs referred Stovesand to the contents of their letter, Stovesand removed the letter from a file and "said that he knew we did [represent a majority, he] immedi- ately tore the letter up and pitched it in the waste can and said it would not be necessary to keep it any longer." 2 They discussed with Stovesand the hours, condi- tions of employment, and wages and welfare and handed him a copy of the agree- ment that was approved and used by them entitled the "Greater St. Louis Auto- motive Automobile Dealers Association." Stovesand said that he had to go to a convention in Chicago and would turn over to his auditor the agreement for deter- mining what the Company could do about the terms required in the contract. Subsequently they called Stovesand and requested a meeting with him at his office on February 12. Stovesand advised them that it was necessary for him to come to the city, and it was arranged that they would meet at Dohacks Restaurant at 10 o'clock. Various provisions of the contract were discussed. Redman quoted Stovesand as saying that he felt it was an impossibility for his organization to operate on a 40-hour week, or that the Company could afford to pay the wages provided in the Union's overall contract. Stovesand was quoted as saying that he did not believe that the majority of his employees were interested, and he felt that an election should be held. Redman argued to Stovesand that an election was not proper because the National Labor Relations Board would not assert jurisdiction over automobile companies of the size of Respondent. Redman testified that he told Stovesand that he could not believe that his people were not interested in the Union, and that he intended to go out at noon and talk with the people person- ally-which they did. Redman testified that he and Gibbs went back to the shop and proceeded to bring the people up-to-date as to what had transpired in the dis- cussion with Stovesand, who, he said, had stated that he, Stovesand, doubted whether or not the employees desired the Union's contract. He quoted Gillman as saying to the employees "if you have changed your mind, speak up now so they will know where they are at, [continuing] `because we told them if you were not interested in the Union and have led the Company to believe you were not interested in it, we might as well leave and forget about it.' Because the 14 members wouldn't make or break the Union, as such." Confronted by the organizers, they remained silent. The next conference was held on February 14 with the Company's attorney, Talent. Redman stated that Counsel Talent called him at home that morning and told him that he was representing Respondent for the purpose of securing an elec- tion of the employees. Redman told Talent that he could not commit Gibbs, and that he was not in agreement to hold an election, as they had already been bargain- ing with the Company. However, Redman said he would get in touch with Gibbs and call back Talent later that day. In the interval, word came from Gillman to Redman, telling Redman that he, Gillman, had been laid off, given a week's pay, and told "there was not work for him." Redman then called Rush to find out if in his opinion there was a shortage of work and, upon being advised by Rush that there was no shortage of work, he called Talent at his home and told Talent that 2 Stovesand's explanation was that Gibbs' telephone number was not on- the letter, the union had a majority, and "it would not be necessary to keep it any longer." The Trial Examiner came to the conclusion from the entire record that Stovesand first realized that TAM and Teamsters represented his employees. 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Company would be required to put Gillman back before there was any use for further discussion. Redman stated that he then phoned both Stovesand and Talent. Be quoted Stovesand as saying that Gillman was not laid off on account of a threat or any attempt to break up the majority of the employees, but that there was actually a work shortage. Redman reiterated to Talent that he would not go along with this discharge, and quoted Talent as saying that he had discussed the matter with Stovesand and that he, Talent, was quite sure "we could work out something where the employee would be returned to work." The record bears out that there was a shortage of work in the shop and that one mechanic should be dispensed with but management reinstated Gillman in order to avert a sympathetic 'strike occasioned by Gillman's apparent, precipitous layoff. However, the evidence shows that the employees would not have struck Respondent in order to enforce the requirements of the Union's city contract policy demands, nor likely, because the Teamsters Union, unbeknownst to them, had become, jointly, with Machinists, their representatives as collective-bargaining agents. (It will be recalled that the 12 signatories-laborers in an auto dealer's agency signed application cards to become members in good standing in the International Association of Machinists, AFL-CIO, not in the Teamsters Brotherhood.) At least one signer tried to get back his Teamster card. The denouement occurred on Saturday, February 14, as a result of Gillman's discharge. The Union immediately went to the defense of Gillman and there fol- lowed several telephone conversations between Redman, Talent, and Stovesand. The upshot of these talks was that both Stovesand and Talent promised that Gillman would go back to work, and that a meeting on February 16 or 17 in regard to holding an election among the employees, would be held. However, two things happened; on Monday, the employees, in company with union officials, were assem- bled on the highway in front of the shop. They refused to go to work unless Gillman was reinstated. (The Trial,Examiner concluded that this withholding of employees' labor constituted a strike.) A conference was held in Stovesand's office between the hours of 8 and 9:30 a.m. with Redman, Gibbs, Rush, Stovesand, and George Schleuter, special organizer of District 9, in attendance. Stovesand agreed to put Gillman back to work, who had appeared, although discharged, at the demand of the union officials, and the employees then went back to work pending final settle- ment of the issue. However, District 9, IAM, and Teamsters, Local 618, jointly filed the aforesaid unfair labor practice charge with the National Labor Relations Board's Regional Office sometime on Monday after this meeting at the shop. The unions did not confer on such decision with management with whom they were purportedly negotiating a bargaining agreement. The next meeting was held in Respondent Counsel Talent's office on Tuesday, October 17, the next day. Counsel Talent stated that the purpose of this meeting was to discuss a consent election which had been agreed to the previous Saturday. (The Trial Examiner accepts, at full value, this statement.) Those present were: LAM Grand Lodge Representative Fred Carstens, Carl Gibbs of Teamsters Local 618, Schleuter, Redman, Rush, Talent, and Stovesand. Carstens, at this time, informed the company officials that the unions had filed charges of unfair labor practices citing the discharge of Gillman, refusal to bargain, and the wage increase. This announcement ended the meeting! The purpose of this meeting, as contemplated and communicated by Counsel Talent, was to discuss a consent election. (This was the reason Respondent had employed Talent as attorney.) The background of this is shown by the fact that Counsel Talent telephoned Redman on February 14 and said Stovesand wanted a Board election, and he asked for a meeting in his office for Tuesday, February 17. Redman would not agree until Gibbs had been contacted. The testimony in this connection was: "Q. (By Counsel Talent.) When I set up the meeting with you, wasn't it for the purpose of discussing whether or not we could have an election? A. At the time you set up the meeting tentatively, we could not agree to the meeting, because Mr. Gibbs had not been contacted. Then, in a later telephone call, after the discharge and everything had gotten into the case, we agreed to meet with you. Q. To discuss the election? A. Not for election only. Q. Well, at the meeting that we had in my office nothing else but the election was discussed, was it? A. We said the employer had already been in negotiations with us and we felt there should be no election." The final fact is that Redman filed the aforesaid unfair labor practice charge. As will be subsequently developed, Respondent was under no obligation to bargain with the Union, and if Respondent had done so, its actions would have been invalid. LEROY STOVESAND MOTOR COMPANY 23 The Wage Increase-8(a)(1) The complaint, paragraph XI, alleged that on or about January 9 , 1959, Respond- ent granted a wage increase to employees within the unit in order to discourage membership in the Union and in order to dissipate the Union's majority. As to this allegation, Manager Stovesand explained that he had actually committed himself in early 1958 to grant a general wage increase , but "business was so lousy" that a blanket raise was not justified until the buying public accepted the 1959 models and "I started making my plans then to give them a raise the first of the year ." After discussing the matter with his accounting department around the first of January, he then made the raises effective the first full week of January 1959 , rather than relate it back to 1958. This version is accepted by the Trial Examiner. This increase was given to all employees and was not limited to those in the unit. Lonnie Lucy, when asked if he had had a conversation with Manager Stovesand sometime in the spring of 1958 about giving the men a raise, testified that Stovesand told him in December , around Christmas time, that he was going to give the employ- ees a raise because the '59 models promised to sell well. Lucy testified that Stovesand told him earlier in the year that it looked then like business was not going to be good and collections were bad, and he would not be able to give the men a raise at that time. Lucy indicated that when he received his check on January 9, he was expecting to get the raise. August Luebke testified that Stovesand told him both in the spring and fall of 1958 that he,. Stovesand, was trying to give a raise earlier but couldn't do it on account of a lot of bad 1958 cars coming back for free repairs and business was pretty bad. Luebke stated that he didn't know when the raise was coming, but he figured it would probably be around the first of the year. The fact that this wage increase coincided with the second day of organizing , absent union animus, is no sounder basis from which to draw an inference of illegal moti- vation than would be an inference drawn from the fact that the Union delayed its campaign until after the Christmas bonuses had been received and a New Year wage raise granted. As will be shown subsequently in the rationale of the refusal to bargain , 8(a) (5), Respondent was free to grant a promised wage increase , under the facts of this case, since the Union did not jointly represent its employees-there was no obligation to refrain from a unilateral raise. In view of the entire record , the Trial Examiner finds the General Counsel did not sustain his burden of proof by preponderance of the evidence that this wage increase was given by Respondent for the purpose of discouraging membership in the Union or to dissipate the Union's majority. Accordingly, it will be recom- mended that this 8^(a),(1) count in the complaint be dismissed. The Alleged Discriminatory Discharge of Ervin Gillman The complaint alleged in paragraph 9 that on or about February 14, 1959, Respondent discharged or laid off its employee Ervin Gillman, because of his activities on behalf of the Union and in order to dissipate the Union's majority in the unit. Gillman's discharge occurred about a month after the Union 's organization campaign had begun. In fact, two bargaining meetings had been had between union officials and the company president , Stovesand. The year 1958 had ended with an unsatisfactory Ford model which had necessitated considerable free repair by the Company. The new 1959 car appeared to be a very successful automobile from the company standpoint in that it did not require so much free service. The record shows that the need of the same amount of mechanical service in January was less than in December previously and the Company could operate with fewer mechanics. Gillman was junior in seniority. Gillman contended that he was dis- charged because of his union activity . Respondent contended that Gillman's dis- charge was for economic reasons. Actually, Gillman did not play much of a part in the organizing. His testimony in reference as to whether he had distributed cards in this period of union activity in behalf of the Machinists was that he saw two cards signed, and he picked up and mailed one card to the Union. The unit organizer for the Machinists, Rush, a senior employee, "ran the show" with little if any assistance from Gillman and it is not shown that the Company had cognizance of any noticeable union interest or activity on his part. Gillman confirms, however, the general situation that there was a diminished amount of work in the shop with the advent of the 1959 model which required less servicing than the previous 1958 model. While he admitted that there was reason for curtailment of such shop service help, Gillman felt others should have been let out before him because , although admittedly, a junior mechanic in employment, he claimed he had a "'gentlemen's agreement,' When I went to work, -24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD how slack the work was, I wouldn't be laid off." (The two employees who would be junior to him were employed as washers and polishers and not mechanics. Gill- man had been employed 18 months, the next junior mechanic had worked there 12 years. When Gillman was laid off, no mechanic was hired to replace him). Henry Rush, the moving force in the unionization effort, was expressly told that he would not be discriminated against for such activity, and in fact he was not. With reference to Gillman's layoff, Stovesand's accepted testimony was: "We were selling more cars-selling about twice as many '59 models. We were doing a lot less work on them, a lot less free work on them, a lot less volume on the '59 models, -that is common knowledge." Respondent's Exhibit No. 1 was a report by a certified public accountant which shows that the cause of the less service required by the new 1959 model-only 64.9 percent of the cost of operating the service ,department was absorbed as against that of 91.6 percent because of the margin of volume of -service required in the 1958 model. There is no direct evidence that Manager Stovesand knew of Gillman's union activity. However, in a small shop -like this, one with only 15 employees and 14 of them having signed cards, there could be no question at all but that it was a matter of general knowledge-of which Manager Stovesand of necessity would be aware since he had 3 of his own relatives working there, 2 of whom signed union cards. It is obvious that he did not make any attempt to stop his own relatives from signing cards, in fact he was sympathetic toward getting a union in the shop if his employees so desired but he preferred that they be members of the Glass Workers' union with which he was familiar and which union was the bargaining agent for a company in which he had a financial interest. The record as a whole negatives any question of union animus on the part of Stovesand. On the contrary, with reference to Gillman, he suggested two different locations where Gillman might continue working for him. Gillman refused these opportunities. General Counsel has failed to carry his burden of proof. Accordingly, it will be recommended by the Trial Examiner that the 8(a) (3) charge of discrimina- tory discharge of Ervin Gillman be dismissed. Refusal to Bargain-8(a) (5) The complaint, after formal recitations, alleges that since January 9, 1959, a majority of Respondent's employees in a proper unit designated the Union as their representative for collective-bargaining purposes; that on January 21, 1959, the Union requested Respondent to bargain; and that since February 14, 1959, Respond- ent has refused to bargain. The complaint also alleges that Respondent gave a wage increase and discriminatorily discharged a union adherent in order to dispute the Union's majority. As previously indicated, IAM Representative Redman had been importuned to send application cards to be presented to Respondent's employees after the first of the year-1959. Redman complied, and on January 8 Mechanic Henry Rush secured 8 signatures of employees on JAM cards, 2 signatures on January 9, 1 on January 13, and 1 on January 20-a total of 12 of Respondent's 15 employees consisting of 5 mechanics, 2 bodymen, 2 wash and polishmen, 2 greasemen, 2 parts clerks, 1 truckdriver, and a shop foreman Subsequently, on February 2 the two parts department clerks signed cards of the Teamsters Union, Local 618. At the time of signing these applications, the employees were not told that they were to be repre- sented jointly by the Machinists local union and the Teamsters local union . However, on January 12 Redman and Teamsters' Representative Gibbs met with the employees who had signed Machinists' cards. The employees were told that Redman would represent the mechanics and Gibbs would represent the others. There is no evidence that the employees knew, when they signed their applications, that they would be jointly represented by both unions. There is no evidence that either of the two parts clerks, who signed Teamsters' cards (Livingston and Annabelle Baum) knew, even on February 2, that they would be jointly represented. On the contrary Miss Baum -testified that she was just joining "the Union." In fact, some employees did not learn until a week or so later that the Teamsters were even in the picture-at most they thought that Redman would represent the mechanics and Gibbs the others. Later, after signing , they learned that they would be divided between the Machinists and the Teamsters. At the first meeting on January 12, Rush was appointed spokesman for the em- ployees in dealings with Stovesand, and Redman was to contact Stovesand by mail, advising that the unions represented Respondent's employees. This notification, signed by Redman, was sent on January 21. Redman and Gibbs met Stovesand in Respondent's office on January 26. And they discussed the "standard automotive agreement." This brochure shows on its face that Automotive, Petroleum and Allied .Industries Employees Union, Local 618, and District 9, International Association of LEROY STOVESAND MOTOR COMPANY 25 Machinists, AFL-CIO, held contracts with Greater St. Louis Automotive Associa- tion embodying terms and conditions set out in detail therein. With the exception of the small emblem or decal of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, there is nothing to indicate that the Teamsters Union was involved or concerned. Even Redman's letter of January 21 carries no Teamsters' connotation. Perhaps, only then did Stovesand learn of the Teamsters' interest-if even then, certainly, his employees did not have this infor- mation when they signed cards at their benches and stalls. Stovesand, petulantly or otherwise, tore up their letter and threw it in the wastebasket, stating that he couldn't meet city wages, hours, and conditions from his point of disadvantage in a small country village of 300 persons. Doubtless Stovesand admitted that the Union held cards for a majority of his employees, as the record indicates. Stovesand made a trip in the interim to an automobile dealers' convention in Chicago where he was advised that he could request and secure a Board election, because the National Labor Relations Board was now taking jurisdiction of auto- mobile dealers. To this end and to get an election, he employed Counsel Talent. Stovesand's next meeting with Redman and Gibbs was at Dohacks Restaurant in St. Louis. At this meeting he insisted on a free election and advised them that he ques- tioned whether the unions represented a majority of his employees. The union representatives refused to agree to an election 3 and insisted on bargaining. They contended that his Company could not come under the Board's jurisdiction, and that, in any event, they had a majority and he had already entered upon bargaining nego- tiations. The meeting terminated with no progress. At this point in time, the Gill- man discharge incident and the unfair labor practice charge filed by the unions broke up further negotiations. Between these intervals Respondent's employees had learned that the mechanics were to become Machinists' members and all others Teamsters' members. The facts are clear in this case that 12 employees signed cards under the im- pression that the Machinists would represent them, 2, subsequently, signed Team- sters' cards without realizing it. At the time of signing, none knew that the Ma- chinists and Teamsters would be jointly representing them. It is elementary Board policy that when two labor organizations claim to be the bargaining representatives of the employees in an appropriate unit, there must be clear proof that a majority of the employees in the unit designated both unions to represent them on a joint basis. Respondents' employees were never given this opportunity and protection. It would be a philosophical non sequitur to contend that they had a knowledgeable choice when all signed up for one union. To hold otherwise, would open the door for fraud and defeat the purpose of the Act which gives the employees free rights to organize for mutual protection. Otherwise, one union which might get some members but not a majority could conspire with another union, which had some adherents but not a majority, and add their combined votes, thus securing a majority against the will of the employees. A majority joint representation requires a vote on this specific situation. . In conclusion, even though Respondent admitted that the unions had a majority, gained under the circumstances of this case, his recognition of joint representation and even bargaining was void ab initio. In any event, under the particular circum- stances here presented, the burden was upon the General Counsel to prove by a preponderance of the evidence that when a majority of the employees signed cards designating the Machinists that at the same time, they were freely designating an- other union as their joint bargaining representative. This he has failed to prove. It will be recommended that the alleged violation of Section 8(a) (5), refusal to bargain, be dismissed. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent Company is engaged in commerce within the meaning of the Act. 2. District 9, International Association of Machinists , AFL-CIO, and Automotive, Petroleum and Allied Industries Employees Union , Local 618, affiliated with the International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, are labor organizations within the meaning of the Act. 3. Respondent has not engaged in unfair labor practices as alleged in the complaint. [Recommendations omitted from publication.] 3 There is evidence In the record that these unions preferred and made a practice of refusing Board election process, and rather operated by striking an employer's plant and throwing a picket line around it.