Swift & Co.

622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. By discriminating in regard to the hire and tenure of employment of Paul F. Hoffman and Ervin Worth, thereby discouraging membership in the Union , Respond- ent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent has engaged in and is en- gaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By interrogating its employees regarding their union activities and sympathies and regarding the union activities and sympathies of other employees, by granting a wage increase , and changing the employees' work schedule in order to defeat the employees' organization drive, thereby interfering with, restraining , and coercing said employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices within the mean- ing of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] St. Louis Independent Packing Company , a Division of Swift & Company and Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO and Local 20, National Brotherhood of Packinghouse Workers and National Brother- hood of Packinghouse Workers, Parties to the Contract. Case No. 14-CA-2238. November 3, 1960 DECISION AND ORDER On June 13, 1960, Trial Examiner Arnold Ordman issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent 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, the Charging Party, and National Brotherhood of Packinghouse Work- ers, and its Local 20, filed exceptions to the Intermediate Report and all of these parties filed supporting briefs. 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 [Chairman Leedom and Members Rodgers and Jenkins]. 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 findings, conclusions, and recom- mendations of the Trial Examiner 1 except as noted below? 1 The Board recently considered substantially the same issues involving the parties at another plant of the Respondent, finding that Respondent violated Section 8 ( a) (2) and (1) by conduct similar to that here involved. Swift and Company, 128 NLRB 732. 2 We do not adopt the Trial Examiner 's characterization of the letters written by the Respondent as illegal. We nevertheless agree with the Trial Examiner that the letters are material in evaluating Respondent's conduct. 129 NLRB No. 71. ST. LOUIS INDEPENDENT PACKING COMPANY, ETC. 623 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, St. Louis Inde- pendent Packing Company, A Division of Swift & Company, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Recognizing National Brotherhood of Packinghouse Workers and/or Local 20, National Brotherhood of Packinghouse Workers, as the representative of the production and maintenance employees at its St. Louis, Missouri, plant for the purpose of dealing with the Re- spondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until the said labor organization or organizations have been duly certified by the National Labor Relations Board as the exclusive repre- sentative of such employees. (b) Entering into, renewing, giving effect to, or publicizing any negotiations, agreements, or understanding with either or both of the above-named labor organizations respecting the production and main- tenance employees at its St. Louis, Missouri, plant, unless and until either or both of the said organizations shall have been duly certified in the manner stated above. (c) Interfering with, restraining, or coercing employees in the exercise of their rights to self-organization, to form labor organi- zations, to join or assist Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, or any other labor organi- zation, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid and protection, or to re- frain from any or all such activities, except to the extent that such right may be affected by an agreement requiring 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. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Withdraw and withhold all recognition from National Brother- hood of Packinghouse Workers and/or Local 20, National Brother- hood of Packinghouse Workers, as the representative of its production and maintenance employees at its St. Louis, Missouri, plant for the purpose of dealing with Respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until the said labor organization or organi- zations shall have been duly certified by the National Labor Relations Board as the exclusive representative of such employees. 624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Post at its plant in St. Louis, Missouri , copies of the notice attached hereto marked "Appendix." 3 Copies of said notice, to be furnished by the Regional Director for the Fourteenth Region , shall, after being signed by Respondent's authorized representative, be posted by it immediately upon receipt thereof, and be maintained by Respondent for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Fourteenth Region, in writing, within 10 days from the date of this Decision and Order, what steps Respondent has taken to comply herewith. 3In 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." 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, as amended, we hereby notify our employees that : AVE WILL withdraw and withhold all recognition from National Brotherhood of Packinghouse Workers and/or Local 20, National Brotherhood of Packinghouse Workers, as the collective- bargaining representative of the production and maintenance employees at our St. Louis, Missouri, plant, and will not recognize the said labor organization or organizations as such representa- tive, unless and until the said labor organizations shall have been duly certified by the National Labor Relations Board as the exclusive representative of such employees. WE WILL NOT enter into, renew, give effect to, or publicize any negotiations, agreements, or understanding with the above-named labor organizations, unless and until either or both of the said labor organizations have been duly certified in the manner stated above. WE WILL NOT interfere with, restrain, or coerce our employee's in the exercise of their right to self-organization, to form labor or- ganizations, to join or assist Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, or any other labor organization, to bargain collectively through representa- tives of their own choosing and to engage in any other concerted activities for the purpose 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 agree- ST. LOUIS INDEPENDENT PACKING COMPANY, ETC. 625 ment requiring 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. ST. Louis INDEPENDENT PACKING COMPANY, A DIVISION OF SWIFT & COMPANY, Employer. Dated----- ----------- B-'------------------------------------- (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 STATEMENT OF THE CASE An unfair labor practice charge having been filed on December 9, 1959, by Amalgamated Meat Cutters and Butcher Workmen of North America , AFL-CIO (herein called Amalgamated), the General Counsel of the National Labor Relations Board issued a complaint, dated January 12, 1960, against St. Louis Independent Packing Company, a Division of Swift & Company i (herein called Respondent), alleging that Respondent violated Section 8(a) (1) and (2) of the National Labor Relations Act, as amended, by rendering assistance and support to National Brother- hood of Packinghouse Workers and its Local 20 (herein called NBPW and Local 20, respectively). Respondent filed an answer denying the alleged violations, and NBPW and Local 20, as parties to a contract with Respondent, likewise filed a document entitled "Answer to Complaint" denying that Respondent had engaged in the alleged violations. A hearing thereon was held before the duly designated Trial Examiner in St. Louis, Missouri , on February 19, 1960. All parties were represented at the hearing. The only evidence adduced was by way of stipulation and by the introduction of exhibits .2 The parties waived oral argument at the hearing and elected to file briefs. Upon the entire record,3 and upon consideration of the briefs, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent, a corporation duly authorized to do business in the State of Missouri, is engaged at its St. Louis, Missouri, plant in packinghouse activities including the slaughtering and butchering of animals and the wholesale distribution of meat. In the course of its business Respondent annually ships from its St. Louis plant to points outside the State of Missouri goods valued in excess of $50,000. The parties stipulate, and I find, that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. H. THE LABOR ORGANIZATION INVOLVED Amalgamated, NBPW, and Local 20 are labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The issue defined The issue here in controversy is a narrow one. The production and maintenance employees at Respondent's St. Louis plant had for some years been represented for 1 The name of the Company appears as corrected by stipulation of the parties at the hearing 2 Certain exhibits not admitted Into evidence by the Trial Examiner have been placed in the "rejected exhibits" file. 3A motion to correct certain errors in the transcript of the hearing is hereby granted. 586439-61-vol. 129-41 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD purposes of collective bargaining by NBPW and its Local 20. Together with other appropriate units of employees working at various locations in Respondent's multi- state enterprise, who likewise were represented for collective bargaining by NBPW and its various locals, the terms and conditions of employment of the St. Louis employees were governed by a master agreement which, subject to appropriate notice, expired on September 1, 1959.4 Appropriate notice was given and negotiations ensued for a new master agreement. In the meantime, however, Amalgamated was seeking to displace NBPW as bargaining representative of the St. Louis production and maintenance employees and itself obtain that status. To this end Amalgamated on May 1, 1959, at a time when it was concededly appropriated to do so, filed a representation petition with the Board to determine the representation question respecting the St. Louis employees. Notwithstanding that the representation of the St. Louis employees was thus in issue and that the question raised thereby was pend- ing before the Board for resolution, Respondent continued to negotiate and enter into agreements with NBPW not only respecting the various other groups of em- ployees covered by the predecessor master agreement but also respecting the St. Louis employees. Respondent also concurrently publicized to its employees the substance and content of its negotiations and agreements. Stripped to its bare essentials, the question thus presented is whether an employer may negotiate and enter into agreements with an incumbent bargaining representa- tive-and publicize such negotiations and agreements-at a time when the continued representative status of the incumbent has been put in question and a proceeding to resolve that question is pending before the Board. General Counsel and Amalgamated, the Charging Party herein, take the position that Respondent's conduct in continuing to deal wtih NBPW concerning the terms and conditions of employment of the St. Louis employees, and in publicizing to those employees the course and results of such dealings, at a time when Respond- ent knew that the question of their representation was in issue and was pending before the Board for resolution, violated Respondent's duty of neutrality in a contest between labor organizations competing for employee support and, pro tanto, constituted unlawful support and assistance to NBPW and its Local 20. Such conduct, General Counsel and Amalgamated argue, is in derogation of the rights of the employees to make a free choice between competing labor organizations and constitutes a violation of Section 8(a) (1) and (2) of the Act. Respondent and NPBW, for their part, take the position that Respondent's conduct was lawful in all respects, that its negotiations with NBPW respecting the St. Louis employees was only incidental to its overall negotiations for a new master agreement covering numerous plants in its operations in which NBPW was the unchallenged bargaining representative, that it did not discriminate for or against the St. Louis employees, and that its conduct in this regard was required by the nature of its opera- tions and reflected a course of dealings which it had consistently followed not only with respect to NBPW but also with respect to other international labor organiza- tions, including Amalgamated, with which it had similar arrangements and master agreements. See footnote 4, supra. In further support of Respondent's position, it is urged that at all times here relevant, the great majority of the St. Louis employees desired NBPW and its Local 20 as their bargaining representative, and that in any event Respondent and NBPW throughout all their agreements and negotiations in- cluded a precautionary provision that in the event a different bargaining representa- tive was designated for any group of employees covered by their agreements, the agreements would be of no effect as to such employees. Before proceeding to resolve the foregoing issues, a somewhat fuller recital of the facts, all of which are undisputed, is appropriate. B. Chronology of events On September 23, 1954, the Board certified Local 20 of NBPW as the exclusive bargaining representative of the employees in a bargaining unit consisting essentially of the nonsupervisory production and maintenance personnel in Respondent's St. Louis plant. No certification respecting these employees has been issued since. On October 11, 1956, Respondent and NBPW entered into a master agreement concern- ing wages, hours, and working conditions of some 17 bargaining units of Respond- ent's employees represented by NBPW and various locals thereof. One of the units so covered was the St. Louis unit of production and maintenance employees 4 Respondent had similar arrangements and master agreements with Amalgamated and with United Packinghouse Workers of America, AFL-CIO, who also represented groups of its employees constituting appropriate bargaining units. ST. LOUIS INDEPENDENT PACKING COIVIPANY, ETC. 627 here involved. On the same date, October 11, 1956, Respondent and NBPW entered into a supplemental agreement which provided that in the event a different bargain- ing representative was designated for the employees in any unit covered by the master agreement, the terms and conditions set forth in the master agreement would no longer be effective as to such employees. The term of the 1956 master agreement was for 3 years and its expiration date, subject to appropriate notice, was September 1, 1959. The master agreement did not contain a union-shop provision; it did, however, provide for a dues checkoff upon authorization of the individual employee, revocable by the employee at the end of 1 year or at the termination date of the agreement whichever occurred sooner. Toward the end of the term of the 1956 agreement Respondent and NBPW entered into negotiations for a new master agreement. In the meantime, however, Amalgamated was making a bid to represent the St. Louis production and mainte- nance employees who therefore had been represented by NBPW and its Local 20 and who were covered by the 1956 master agreement. To that end Amalgamated on May 1, 1959, filed a timely petition with the Board asking for a representation de- termination respecting these employees. A hearing was held and in due course the Board on August 26, 1959, issued its decision finding, in accord with the position urged by Amalgamated and Respondent and over the objection of NBPW which pressed for a multiplant unit, that the production and maintenance employees at Respondent's St. Louis plant constituted a separate appropriate unit for purposes of collective bargaining. The Board directed that an election be held to determine whether these employees wanted to be represented for purposes of collective bargain- ing by Amalgamated, by NBPW and its Local 20, or by neither. The election was held on September 23, 1959, and 941 of the approximately 1,300 eligible voters who cast ballots designated NBPW and its Local 20 as their choice for bargaining representative. Thereafter Amalgamated filed timely objections to the conduct of the election setting forth in substance the same allegations which are the subject matter of the complaint herein. After due investigation the Regional Director of the National Labor Relations Board for the Fourteenth Region (St. Louis, Missouri) issued a report, dated November 3, 1959, recommending that the objections be sustained, that the first election be set aside, and that a new election be conducted. Upon appropriate exceptions to that report, the Board itself reviewed the matter and on January 18, 1960, issued its decision adopting the Regional Director's findings and recommendations. In the meantime, however, Amalgamated had filed the un- fair labor practice charges herein and General Counsel had issued his complaint. Accordingly, the Board entered an order deferring the second election pending dis- position of the complaint herein.5 While the above-described representation proceeding was pending, Respondent continued to negotiate with NBPW for a new master agreement to succeed the 1956 agreement.6 Notwithstanding that the question of representation respecting the St. Louis employees was unresolved, Respondent continued to negotiate with NBPW concerning their terms and conditions of employment along with the terms and conditions of other groups of employees covered by the 1956 master agreement. On August 21, 1959, 5 days before the Board's initial decision and direction of election, Respondent and NBPW executed a temporary agreement reciting that because they anticipated inability to consummate a successor master agreement by September 1, 1959, the terminal date of the old master agreement, the parties would continue in effect the terms and conditions of the old master agreement and the supplements thereto. The temporary agreement further provided that the terms and conditions of the old master agreement and the supplements thereto would remain in effect until the effective date of a new master agreement or until termination of the temporary agreement by written notice of either party, whichever occurred first. On September 18, 1959, 5 days before the election already described, Respondent and NBPW entered into a-further agreement supplementing the terms of the August 21 agreement and granting an increase in wage rates and other benefits. Employees in certain of the plants covered in the earlier agreements were excluded from these benefits. The employees in the St. Louis plant, however, were included. 5 The facts set forth in the foregoing paragraph derived from the evidence submitted in the instant unfair labor practice proceeding and from the public records in the representa- tion proceeding (Case No. 14-RC-3006, not published in NLRB volumes), in which Respondent, Amalgamated, and NBPW and Its Local 20 participated fully I take admin- istrative notice of the public records in that proceeding. e Concurrently, Respondent was carrying on separate negotiations with Amalgamated and with United Packinghouse Workers of America, AFL-CIO, for new master agree- ments with those organizations for the employees they represented. 628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Finally, on October 22, 1959, Respondent and NBPW entered into a new master agreement covering, inter alia, the production and maintenance employees in the St. Louis plant. On the same day, Respondent and NBPW exchanged letters em- bodying their understanding that in the event the National Labor Relations Board should certify a different labor organization for any of the employees in any of the bargaining units covered by the master agreement, such "Master Agreement would cease and terminate as to such employees effective with the date of the Board's certification." As already noted, Amalgamated's objections to the election were pending before the Board at this time? While the above-described negotiations were being carried on and the agreements being executed, Respondent, pursuant to a consistent information policy followed by it in all its plants, kept the St. Louis employees advised of the state of negotiations. Thus, on September 4, 1959, in a two-page letter addressed to "All Master Agreement Bargaining Unit Employees" and signed by H. W. Ninker, superintendent of the St. Louis plant, Respondent told the St. Louis employees that it was offering "your Union representatives" a 2-year contract and certain economic benefits. On the same day, Ninker sent another letter to all his employees noting Respondent's appreciation of "the constructive and reasonable attitude of you and your Union officers" and attaching a copy of letter sent to employees represented by Amalgamated and United Packinghouse Workers criticizing the latter unions for engaging in need- less strike action.8 On September 8, 1959, the St. Louis employees received another letter signed by Ninker setting forth in greater detail benefits "offered your union representatives." A letter dated September 10, 1959, described a savings and security plan "offered to your union." On September 21, 1959, 2 days before the scheduled election, Re- spondent in a letter again signed by Ninker, told the St. Louis employees of the agreement signed with NBPW on September 18, which put into immediate effect a wage increase and other benefits. On the other hand, on September 22, 1959, 1 day before the election, Ninker read a statement to all St. Louis employees eligible to vote which stressed that the em- ployees were free to vote for the union of their choice or for no union, and that Respondent would recognize and bargain with any union that was certified. At about this same time Amalgamated was issuing preelection leaflets bitterly criticizing Respondent and NBPW, telling the employees the benefits Amalgamated was seeking, and urging the employees to vote for Amalgamated. As already noted, Respondent and NBPW executed a new master agreement on October 22, 1959. On the following day, Ninker again wrote to the St. Louis em- ployees enumerating the highlights of the agreement, congratulating "you and your union" for working out the agreement at the bargaining table, and closing wiht the statement: "This is a sound agreement which will provide the basis for a continuing sound relationship." C. Analysis, defenses, and concluding findings As stated at the outset the basic issue here is whether an employer may negotiate and enter into agreements with an incumbent bargaining representative-and pub- licize such negotiations and agreements-at a time when the continued representative status of that incumbent union has been put in question by a rival labor organization and a proceeding to resolve that question is pending before the Board. Generally speaking, the Board has, since its decision in Midwest Piping and Supply Co., Inc., 63 NLRB 1060, held that an employer violates the Act by recognizing and bargaining with one union at a time when another union has filed a petition for certification which raises a real question concerning representation. This principle, known as the Midwest Piping rule or doctrine, rests intrinsically on the proposition that the choice of a bargaining representative under the statutory scheme is for the employees and not the employer to make, and that the manifestation of employer favor, arising out of a unilateral grant of recognition or bargaining rights to one of two or more competing unions, constitutes unlawful assistance and support to 7 Throughout the entire period here relevant, Respondent handled grievances relating to the St Louis production and maintenance employees with NBPW Efforts made by Amalgamated in January 1960, to process grievances for certain of these employees who had requested Amalgamated to take such action in their behalf were rebuffed. $ As already suggested, letters virtually identical to those described herein, but signed by the superintendent of the particular plant involved, were sent to employees in the other plants covered by the master agreement with NBPW. This is also true of the letters hereinafter describe,' ST. LOUIS INDEPENDENT PACKING COMPANY, ETC. 629 the favored union and unlawfully interferes with the freedom of choice guaranteed employees by the Act. In such competing union situations, resolution of the question concerning representation is best left to the Board election machinery devised by Congress for that purpose whereby the employees can make a free choice un- trammeled by any concrete demonstration of employer favoritism. The situation is no different where one of the competing unions has been the incumbent bargaining representative of the employees involved. The right of em- ployees to change their bargaining representative carries no less dignity in the statutory scheme than their right to choose in the first instance between unions competing for representative status. Accordingly, the Board, in Shea Chemical Corporation, 121 NLRB 1027, 1029, held that "upon presentation of a rival or conflicting claim which raises a real question concerning representation, an employer may not go so far as to bargain collectively with the incumbent (or any other) union unless and until the question concerning representation has been settled by the Board." In so holding, the Board squarely overruled its prior decision in William D. Gibson Co., 110 NLRB 660, which for a brief interval introduced a variation in the basic Midwest Piping rule to the extent that it permitted bargaining with an incumbent representative in a rival union situation pending Board disposi- tion of the question concerning representation. Applying the rule of law laid down in Shea Chemical Corporation, supra, there- fore, Respondent's violation of the Act would appear to be clearly established. For it is undisputed that Respondent negotiated and entered into agreements with NBPW-and publicized these dealings-at a time when Amalgamated, in support of its claim for bargaining status, had filed a representation petition with the Board. Respondent argues, however, that notwithstanding the pendency of Amalgamated's petition, no real question concerning representation was presented and hence, under the Board's own formulation, the Midwest Piping rule was inapplicable .9 Thus, Re- spondent asseits that NBPW at all times here relevant represented a decisive ma- jority among the production and maintenance employees in the St. Louis plant and that Respondent was therefore wholly within its rights in dealing with NBPW con- cerning their terms and conditions of employment. In support of its position Re- spondent points to the fact that approximately 97 percent of the employees in the appropriate unit indicated their adherence to NBPW by authorizing their dues to be checked off in favor of that organization; that few, if any, of these employees availed themselves of their right prior to the expiration of the 1956 master agree- ment to revoke such authorizations; and that a decisive majority voted for NBPW in the election on September 23, 1959. The short answer to this contention, of course, is that the Board in the representative proceeding herein found that a ques- tion of representation did exist and administrative regularity warrants the pre- sumption that Amalgamated made the prerequisite showing of a substantial interest. Moreover, Respondent's argument based on the checkoff authorizations is patently without merit These authorizations would indicate that at most 3 percent of the employees were dissatisfied with NBPW when as a matter of fact the election re- vealed that approximately 27 percent of the employees who voted and almost 24 percent of all the employees eligible to vote cast their ballots for Amalgamated. How many of the remainder might also have voted for Amalgamated had not Re- spondent cast its weight in favor of NBPW is conjectural. At the very least how- ever, it is manifest that a real question concerning representation was presented and that the prerequisites for application of the Midwest Piping rule were satisfied. But even assuming the applicability of the Midwest Piping rule, Respondent and NBPW nevertheless argue that because of the special circumstances of this case that rule should not be applied here. The considerations here advanced will be considered seriaitim. 1. Preliminarily, Respondent contends that General Counsel is precluded from relying on conduct which occurred before September 23, the date of the election, and that its conduct thereafter was free of illegality. In support of this contention, B Courts have on occasion rejected the Board's application of the 1T,dwc't Pin'nq rule in particular cases because on their view of the facts in those cases no real nuestion con- cerning representation was presented See for example Cleaver-Rrooks Aff0 Corpora- tion v N L.R B , 264 F 2d 037 (CA 7), cert denied 861 II S, 817. setting aside 120 NLRB 1135 , N L R B v The Wheland Company et al , 271 F 2d 122 (C A 6), setting aside 120 NLRB 814; Stewart Warner Corp v N L R R , 194 F 2d 207 (C A 4) setting aside 94 NLRB 607 No rejection of the DTidwest Pzpinq rule was here involved how- ever As already indicated, the Board, ton, regards the cvistence of a real nuestion con- cerning representation as a prerequisite to application of that rule See 1V0iam Penn Broadcast,,ny Company, 93 NLRB 1104. 630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent notes that its preelection conduct was known to Amalgamated and that Amalgamated,,by proceeding to an election notwithstanding that knowledge, waived its right to rely on such conduct as a basis for a later unfair labor practice proceed- ing. The argument has a deceptive appeal. The Board has held in representation proceedings, as distinguished from unfair labor practice proceedings, that it will not, generally speaking, entertain objections to an election based upon preelection conduct of which the aggrieved party had knowledge but did not file charges or otherwise protest such conduct to the Board until after the election was concluded. F. W. Woolworth Co., 109 NLRB 1446. But the cutoff date even in these circum- stances is not the date of the election; as Respondent urges, but rather the date of the decision and direction of election-here August 26, 1959.10 Improper conduct thereafter may be utilized as the basis for objections. In addition, with respect to unfair labor practice proceedings as such, the Board has held in Aiello Dairy Farms, 110 NLRB 1365, that once a party has resorted to a representation election despite its knowledge of prior unfair labor practices, it will not permit such party later to resort to a Section 8(a) (5) (refusal to bargain) proceeding as an alternate means of establishing its representative status. But see N.L.R.B. v. Howell Chevrolet Com- pany, 204 F 2d 79, 86 (C.A. 9), affd. 346 U S. 482. The Aiello holding was based in substantial part on the Board's view that sound administrative practice militates against its "being compelled to diffuse its energy and expend time and public funds in useless and repetitive proceedings." 110 NLRB 1365 at 1368 On the other hand, the Board in the same case emphasized that it did not intend by this ruling to let unfair labor practices go unremedied and accordingly entered a remedial order in the Aiello case itself. Id. at 1369. The situation in the instant case is comparable. Here no Section 8(a) (5) allegation was even made nor would the Board entertain such an allegation under its Aiello holding. But nothing in the Act or in sound ad- ministrative practice dictates that allegations of other unfair labor practices, if sub- stantiated, should go unremedied and that the fruits of such unfair labor practices be retained. To preclude such a result, all relevant conduct of Respondent within the 6-month limitations penod prescribed by Section 10(b) may properly be con- sidered.ll Even on Respondent's view however, it merits mention that, the agree- ments of August 21 and September 18 and the attendant publicity aside, Respond- ent's execution of a new master agreement on October 22, 1959, and its followup letter of October 23, 1959, both of which occurred after the election and while ob- jections to the election were pending, would themselves warrant a finding of unfair labor practices under the Midwest Piping and Shea Chemical holdings 2. Respondent and NBPW argue further that Midwest Piping and Shea Chemical precedent should not be applied here because Respondent's 1959 negotiations and its new master agreement covered not only the St Louis production and maintenance employees but also numerous groups of employees in other plants where no question concerning representation was involved. To disrupt such overall bargaining, the argument runs, because such a question is raised as to one group would not serve the policies of the Act to encourage stability in bargaining relationships The fact remains, however, that the St Louis production and maintenance employees con- stituted a separate appropriate bargaining unit,12 and neither in logic nor in law are their statutory rights, including their right to change bargaining representatives, diminished because Respondent and NBPW chose for reasons of their own to bunch them for purposes of collective bargaining with employees in other bargaining, units Cr'ntino'itol Can Company, Inc. 110 NLRR 1042. Amv'rican Can Co, 109 NT_RB 1284; Hvgrade Food Products Corn , 85 NLRB 841. This may. of course, add to the complexities of Respondent's bargaining negotiations, but "economic interests of an emnlover are not valid reasons for violation of the Act." Ai L R R v tihiek Rr"wine Company, et al . 144 F. 2d 847, 853 (C.A. 8). Accord- N L.R B v Union Manufacturing Compann', 200 F 2d 656, 659 (C A. 5) Moreover, the difficulties Respondent envisages are more apparent than real. Respondent could have con- tinued bargaining for all the units represented by NBPW and merely excluded the St. Louis production and maintenance employees pending resolution of the question 1o As demonstrated by the record herein, the Regional Director's report on objections, subsequently adopted by the Board, applied this rule in the representation proceeding n In view of the foregoing, it seems unnecessary to stress that Respondent's argument here is in the nature of an estoppel contention based on conduct of Amalgamated This proceeding, however, is being pressed by General Counsel, a Government representative, in the public interest, and authority need not be cited to demonstrate the inefficacy of an estoppel defense in that regard is Indeed. Respondent in the representation proceeding herein described urged the Board to so find. ST. LOUIS INDEPENDENT PACKING COMPANY, ETC. 631 concerning their representation .13 Indeed, nothing in the Act would require or even condone a suspension of Respondent 's bargaining obligation with respect to any plants or units where the representation of its employees was not in issue. 3. Respondent likewise cannot rely on its "supplemental agreements " which pro- vided that in the event a different bargaining representative was ultimately designated or certified for a particular bargaining unit, any master agreement insofar as it related to that unit would terminate and be of no effect. Respondent's offense here arises out of conduct which precedes in point of time such designation or certification and Respondent cannot retroactively exonerate itself from liability for that past conduct. More to the point, the gravamen of Respondent 's offense lies in the fact that its con- duct tends to preclude the very designation or certification which it would utilize as a shield for its prior conduct. 4. Similarly, Respondent's statement to the St. Louis employees on September 22, the day before the election, that they were free to vote for the Union of their choice and that Respondent would bargain with such union does not erase the impact of its earlier and later grants of concrete benefits to NBPW. Respondent's willingness to grant benefits to the St. Louis production and maintenance employees under the aegis of NBPW had already been demonstrated by the actual grant of such benefits. Its willingness to do so under the aegis of Amalgamated , so far as the St. Louis em- ployees were concerned, was only a matter of verbal assurance. 5. Respondent contends that the essential element of discrimination essential in this case to a finding of unlawful assistance and support or of unlawful interference with employee rights is lacking. In that connection Respondent offered to prove that similar or substantially equivalent benefits to those offered NBPW were likewise being offered to its employees in other appropriate units represented by Amalga- mated or by United Packinghouse Workers of America, AFL-CIO. The issue here, however, is not the propriety of Respondent's overall labor relations policy. It is merely whether Respondent unlawfully interfered with the statutory freedom of the St Louis production and maintenance employees to change their bargaining repre- sentative and whether Respondent gave unlawful assistance and support to NBPW in that regard. So far as these employees were concerned , they had been represented by NBPW and Respondent .had manifested its continued willingness to grant and had in fact granted them benefits through NBPW. Moreover, in letters signed by their own superintendent, Respondent had congratulated the St. Louis employees on the "constructive and reasonable attitude" of NBPW and had made clear its desire "for a continuing sound relationship." 14 Under these circumstances the St. Louis produc- tion and maintenance employees would have an understandable reluctance to risk a change of representation even assuming they were aware that Respondent in other plants and areas did not discriminate as between unions. I conclude therefore that Respondent's several defenses are without merit and that a finding of violation of Section 8(a)(1) and (2) of the Act, as alleged in the com- plaint, is warranted. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The unfair labor practices of the Respondent set forth in section III, above , occur- ring in connection with the operations of 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 affecting commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices , Section 10(c) of the Act directs that an order issue requiring Respondent to cease and desist from such practices and to take such affirmative action as will effectuate the policies of the Act. I shall recommend such an order. Inasmuch as Respondent improperly resolved the question concerning the repre- sentation of its St. Louis production and maintenance employees by according NBPW "For reasons set forth in Shea Chemical Corporation , supra, 121 NLRB at 1029, there is no merit to the contention that such a course of action would in effect amount to un- lawful assistance to Amalgamated. A similar contention was long ago rejected by the Supreme Court in May Department Stores v. N L R B , 326 U S. 376, 385-386 1+ Respondent urges that its letters to the employees were free of threats of reprisal or force or promises of benefit and hence were protected by Section 8(c) of the Act. Re- spondent misconceives the issue No claim is made that the letters were in and of them- selves coercive or unlawful. Their illegality lay rather in the fact that they published and thereby impressed upon the employees the preference which Respondent had for dealing with NBPW and Respondent 's concrete implementation of that preference 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and its Local 20 continued recognition as their collective -bargaining representative, I shall direct that Respondent withdraw and withhold such recognition unless and until the said labor organization or organizations shall have demonstrated exclusive ma- jority representative status pursuant to a Board-conducted election. I shall further direct that Respondent cease giving effect to any agreements, contracts, or under- standings between itself and NBPW or Local 20 respecting its St. Louis production and maintenance employees , or to any modifications or extensions thereof subject to the same condition. Nothing in this recommended order, however, shall be construed as requiring Respondent to vary the wages, hours, or other terms and conditions of employment which Respondent has heretofore established in that regard. Finally, I shall recommend that Respondent post appropriate notices to dissipate the effect of its unfair labor practices. CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. Amalgamated, NBPW, and Local 20 are labor organizations within the meaning of Section 2(5) of the Act. 3. By granting unlawful assistance and support to NBPW and Local 20, Respond- ent has violated Section 8(a) (2) of the Act. 4. By frustrating the Section 7 rights of its employees to self-organization and col- lective bargaining, Respondent has violated Section 8 (a) (1) of the Act. [Recommendations omitted from publication.] International Ladies Garment Workers Union [Home Manu- facturing Company] and B. Pauline Anderson Baldwin. Case No. 13-CB-858. November 3, 1960 DECISION AND ORDER On July 15, 1960, Trial Examiner William Seagle issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in and was not engaging 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 attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report, and a supporting brief. The Board i 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 Intermedi- ate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the Trial Examiner's findings,' conclusions, and recommendations.' [The Board dismissed the complaint.] '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, Jenkins, and Fanning]. 2 We have carefully reviewed each of Respondent's exceptions and we find them to be without merit. We deem it unnecessary to discuss them further herein in light of our ultimate disposition of this matter 3 We have adopted the Trial Examiner's finding that Respondent did not engage in unfair labor practices within the meaning of Section 8(b) (1) (A) and (2) of the Act pro forma in the absence of exceptions to such finding by any of the parties 129 NLRB No. 75.