Air Master Corp.

AIR MASTER CORPORATION, ETC . 181 Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Division 1230, Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. 2. By restraining and coercing employees in the exercise of rights guaranteed by Section 7 of the Act, the Respondent Division 1230 has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b) (1) (A) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting com- coerce within the meaning of Section 2(6) and (7) of the Act. 4. The Respondent Amalgamated has not engaged in unfair labor practices in vio- lation of the Act. [Recommended Order omitted from publication.] Air Master Corporation; Air Master Manufacturing Company, Inc.; Philadelphia Industries, Inc.; Aluminum Press Corpora- tion; Aluminum Smelting Corporation and United Industrial Workers of North America of the Seafarers International. Union of North America, Atlantic, Gulf, Lakes & Inland Waters District, AFL-CIO Allied Trades and Bulk Plant Workers; Amusement Park Work- ers and Industrial Workers Local 158, Philadelphia and Vi- cinity, International Brotherhood of Teamsters, 'Chauffeurs, . Warehousemen and Helpers of America and United Industrial Workers of North America of the Seafarers International Union of North America, Atlantic, Gulf, Lakes & Inland Waters District, AFL-CIO. Cases Nos. 4-OA-2545 and 4-CB- 8^?3. April 23, 1963 DECISION AND ORDER On December 19, 1962, Trial Examiner Harold X. Summers issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents have engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist there- from and take certain affirmative action as recommended in the at- tached Intermediate Report. Thereafter, the General Counsel and the Respondents filed exceptions and 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 McCulloch and Members Rodgers 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 entire rec- 142 NLRB No. 23. 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ord in this case,' including the Intermediate Report, the exceptions, and briefs, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. ORDER The Board, adopts as its Order the Recommended Order of the Trial Examiner,2 as modified herein.' I The Intermediate Report shows the following errors : On page 186, line 20, the Trial Examiner states "1-year" whereas the record shows "one cent" ; on page 187, line 15, the Trial Examiner states "persuasive" whereas the excerpt reads "pervasive." We hereby correct these inadvertent errors. g Board Member Rodgers would order the Respondents to reimburse all dues withheld from the employees' pay pursuant to the unlawful agreement between Respondent Air Master and Respondent Teamsters 158. In Member Rodgers' opinion, the failure to order such reimbursement is inconsistent not only with the Board's substantive findings in this case, but also with the other remedial action ordered herein . See Virginia Electric Power Company v. N.L.R.B., 365 U.S. 651. s The General Counsel excepted to the Trial Examiner's failure to provide in his Recom- mended Order the requirement that both of the Respondents, Air Master and Teamsters 158, post signed copies of Appendices A and B . We agree with the General Counsel and we shall modify the Trial Examiner's Recommended Order . Accordingly, we shall add to the affirmative action requirements of the Trial Examiner 's Recommended Order running to Air Master the following provisions: (3) Mail to the. Regional Director for the Fourth Region signed copies of the attached notice marked "Appendix A" for posting by the Respondent Teamsters 158 as provided herein. Copies of said notice, to be furnished by the Regional Director, shall, after being duly signed by a representative of the Respondent Air Master, be forthwith returned for such posting. (4) Post at the same places and under the same conditions as set forth in (2), as soon as they are forwarded by the Regional Director , copies of the Respondent Teamsters 158 notice marked "Appendix B." Paragraph ( 3) of this section of the Recommended Order shall be renumbered paragraph (5). Also, we shall add to the affirmative action requirements of the Trial Examiner 's Recom- mended Order running to Teamsters 158 the following provisions: (2) Mail to the Regional Director for the Fourth Region signed copies of the attached notice marked "Appendix B" for posting by the Respondent Air Master as provided herein. Copies of said notice, to be furnished by the Regional Director, shall, after being duly signed by a representative of the Respondent Teamsters 158, be forthwith returned for such posting. (3) Post at the same places and under the same conditions as set forth in (1) as soon as they are forwarded by the Regional Director, copies of the Respondent Air Master's notice marked "Appendix A." Paragraph ( 2) of this section of the Recommended Order shall be renumbered paragraph (4). INTERMEDIATE REPORT Upon an unfair labor practice charge filed on February 5, 1962 ( and amended on June 6, 1962), by United Industrial Workers of North America of the Seafarers International Union of North America, Atlantic, Gulf, Lakes & Inland Waters District, AFL-CIO, hereinafter called SIU, against Air Master Corporation, Air Master Manufacturing Company, Inc., Philadelphia Industries, Inc., Aluminum Press Corporation, and Aluminum Smelting Corporation, hereinafter referred to collectively as Air Master; and upon an unfair labor practice charge filed on June 6, 1962, by SIU against Allied Trades and Bulk Plant Workers, Amusement Park Workers and Industrial Workers Local 158, Philadelphia and Vicinity, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, hereinafter referred to as Teamsters 158, the General Counsel of the National Labor Relations Board issued a consolidated complaint on June 29, 1962 , alleging that Air Master and Teamsters 158, respectively, had engaged in unfair labor prac- tices within the meaning of Section 8(a)(1), (2), and (3) and Section 8(b)(1)(A) and (2) of the National Labor Relations Act, herein called the Act . Respondents' AIR MASTER CORPORATION, ETC. 183 answers admitted some allegations of the complaint , denied or disclaimed knowledge of others, and, in substance, denied the commission of any unfair labor practices. Pursuant to notice , a hearing was held before Trial Examiner Harold X . Summers on August 6 and 7, 1962, at which all parties were afforded full opportunity to examine and cross-examine witnesses , to argue orally, and to submit briefs. Briefs have been fled by the General Counsel, Air Master, Teamsters 158, and SIU, which briefs have been fully considered. Upon the entire record in the case , including my evaluation of the credibility of the witnesses based upon the evidence and upon my observation of their demeanor, I make the following: FINDINGS OF FACT 1. COMMERCE Five corporations are here involved : Air Master Corporation ; Air Master Manu- facturing Company, Inc.; Philadelphia Industries , Inc.; Aluminum Press Corpor- ation; and Aluminum Smelting Corporation. Although separately incorporated (all under the laws of the Commonwealth of Pennsylvania), they are engaged in a joint enterprise-the manufacture of storm sash and window screens. Their operations take place at different locations in Philadelphia, Pennsylvania, but the principal office of each is maintained at one location, the office of Air Master Corporation. The same individuals own all five corporations. Leroy Hewit is president and Harold Kapp is secretary-treasurer of Air Master Corporation; Kapp is president and Hewit is secretary-treasurer of the other four. All five corporations have the same production manager, and there is an interchange of both processes and per- sonnel . Finally, the five enterprises have a common labor relations manager and there is a common labor relations program; in the relevant history of bargaining, employees of all five corporations have been treated as a single bargaining unit. The pleadings and stipulations establish , and I find, that the five corporations con- stitute a single employer for the purposes of the Act. (As earlier indicated, they are collectively referred to herein as Air Master.) In the course and conduct of its business operations during the year preceding the issuance of the instant consolidated complaint , Air Master purchased and received directly from points outside the Commonwealth of Pennsylvania goods and materials valued at in excess of $50,000; and sold and shipped directly to points outside the Commonwealth of Pennsylvania finished products valued at in excess of $50,000. I find that Air Master is an employer engaged in commerce within the meaning of the Act. II. THE UNIONS SIU, a district of the Seafarers International Union of North America, and Teamsters 158, a local union of International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, bargain collectively with employers with respect to working conditions of their employees . I find that SIU and Teamsters 158 are both labor organizations within the meaning of the Act. M. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and chronology 1 Air Master has been in business since early 1953. At one time, Air Master's nonsupervisory production and maintenance employees were represented by an unaffiliated labor organization. This organization was suc- ceeded, in approximately November 1955, by SIU, on the basis of an informal (non- Board) recognition procedure. Air Master and SIU thereafter entered into two successive collective-bargaining agreements: the first effective from January 1, 1956, through January 31, 1959; the second effective from February 1, 1959, through January 31, 1962. The last contract contained a union-security clause and a dues- deduction clause. Pursuant to the latter provision, Air Master, each month, de- ducted and transmitted to SIU the dues for employees; the last such deduction, covering 360 employees, was made for the month of January 1962. Pursuant to the terms of the last contract above-mentioned, SIU, on October 16, 1961, served Air Master with notice of intention to negotiate a new agreement upon the expiration of the current one; on December 29, 1961, Air Master, through counsel, acknowledged receipt of SIU's expressed intentions and notified the Federal Mediation and Conciliation Service of the existing situation. i The facts here related are not substantially in dispute . They are derived from stipula- tions of the parties, plus credited testimony. 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bargaining demands were exchanged, and the parties held their first negotiating meeting on January 15, 1962.2 They met again on January 18, 22, 24,3 29, 30, and 31. In addition to representatives of Air Master and SIU, a Federal mediator was present at the meetings of January 29, 30, and 31. On January 25, between the fourth and the fifth meeting, Air Master issued a letter to its employees notifying them that negotiations were still at a stalemate and explaining that conditions in the industry made it impossible for it to meet SIU's demands.4 The meeting of January 31 was the last meeting between Air Master and SIU. The meeting, which took place at the office of the Federal Mediation and Concilia- tion Service, commenced at approximately 9:30 p.m. Bargaining proceeded until approximately 11:20 p.m., at which time Air Master representatives were informed by the business agents present that an "overwhelming majority" of Air Master's production and maintenance employees, including all stewards and committeemen, had "disaffiliated from" the SIU and had signed cards authorizing Teamsters 158 to represent them. They noted further that the business agents themselves, until then on the SIU staff, were now staff members of Teamsters 158. In connection with these representations, the business agents produced and laid upon the table a pack of authorization cards. They claimed that, under the cir- cumstances, Air Master was now required to recognize and to bargain with Teamsters 158. When Air Master representatives challenged Teamsters 158's right to recog- nition on the grounds that Air Master was under agreement wtih SIU and that it had no proof of Teamsters 158's right to represent the employees, Teamsters 158 representatives insisted on an immediate check of the authorization cards, agreeing only to wait until after the expiration of the current contract, at midnight. Air Master refused to assume the responsibility of checking the cards. The holding of an election by the National Labor Relations Board was discussed,5 and Teamsters 158 representatives stated that they were unwilling to undergo the delay attendant thereupon. Teamsters 158, through Jack Miller,6 stated that the present contract expired at midnight and that Air Master's employees would not work without a contract; and he stated further that, if Air Master had any doubt about Teamsters 158's majority, "they could count the members on the picket line." (In agreement with stipulations of the parties, I find that statements made by Teamsters 158 representative, as set forth above, constituted a threat by Teamsters 158 to strike if they were not granted immediate recognition.) Air Master then consented to a card check by a third party. The Federal mediator present declined to make the check, based upon the rules of the Mediation Service, and three other proposed names were rejected. Finally, a member of the Phila- delphia Bar, Alexander Borden, was agreed upon, and, at or about midnight of January 31, he was called at his home; agreeing to undertake the task, he was asked to come to the Mediation Service office immediately. Meanwhile, Air Master representatives went to the plant to procure forms bearing the original signa- tures of employees in the unit. At approximately 2 a.m. on February 1, Borden, assisted by representatives of Air Master and Teamsters 158, using the signature forms, commenced to check the names on the authorization cards against those of a list of employees furnished by Air Master. At approximately 4 a.m., he announced that, of 236 cards examined he was satisfied that 230 7 of the 270 persons on the list of employees furnished 2 All dates hereinafter mentioned are for the year 1962 unless the contrary Is indicated. 8 Stipulations of the parties set this meeting as having occurred on January 25. On the basis of the independent documentary evidence, I find that the meeting ended at 1 :30 a.m. on January 25. For the purposes of this case, however, the variance is immaterial. 4 As I understand It, the General Counsel does not contend that the sending of this letter constituted an unfair.labor practice as such ; he urges, however that It contributes to the context from which I must draw Inferences. 5 The only evidence as to who raised the subject of a Labor Board election was Air Master Production Manager Caporaletti's testimony that he did not "believe" that Air Master asked for such an election. In the context of the discussions of the night of January 31, Including Teamsters 158's reaction to the idea, as detailed infra, I find that Air Master did put on the table the idea of holding a Labor Board election to solve the problem. 9 Formerly area director for SIU, subsequently director of organization of Teamsters 158. In addition to him, at least two additional paid staff members of SIU transferred to the paid staff of Teamsters 158. 7 The original signatures of two Individuals were not available . The signatures of four names on cards were questionable. AIR MASTER CORPORATION, ETC. 185 by Air Master had designated Teamsters 158 as their bargaining agent, and he issued a certification to this effect .8 After a recess for breakfast, the parties returned to the bargaining table. From this time on, I find, the employees' representatives were acting on behalf of Teamsters 158, and Air Master was dealing with them as such; from this time on, there was a de facto recognition of Teamsters 158. By approximately 4 p.m. on February 1, the parties executed an instrument which, in this factual recitation, I shall refer to as an "interim agreement." It describes itself, rather ineptly, as a group of company offers which were to be submitted to the employees for acceptance or rejection; and it is signed by representatives of Air Master and Teamsters 158. By its terms, certain changes were made in work- ing conditions 9 from those existing under the old (SIU) contract. The intention of the parties, I find, was that, subject to ratification by the membership of Teamsters 158, the new contract should consist of the terms of the old contract as altered by this interim agreement.19 On Thursday evening, February 1, the membership of Teamsters 158 met." By a vote of 233-1 and 228-1, respectively, they voted to disaffiliate from SIU and to affiliate with Teamsters 158. James Hoffa, president of the Teamsters international, formally presented a charter to the local. Finally, by a show of hands, the mem- bership rejected the terms of the interim agreement prepared by representatives of Air Master and Teamsters 158 that afternoon. Meanwhile, the SIU had gone into action. At or about noon on February 1, Earl Shepard, vice president of the Atlantic Coast District of which SIU was a part, received word at his Baltimore office, via New York officials of the SIU interna- tional, that something was amiss in Philadelphia. Two calls to Philadelphia gave him no enlightenment except to heighten his suspicions ; among the meager informa- tion he obtained, he was told that the mailing address of SIU had been changed to that of Teamsters 158. He went to Philadelphia, arriving at 7 p.m., and heard, in a 9 p .m. news telecast, of a defection from SIU to Teamsters 158. Next morning, February 2, Shepard telephoned Air Master and spoke to Victor Marker, controller. He said that a defection of SIU officials to the Teamsters 12 had been reported to him and that, since the SIU contract had expired, he would like to meet with company officials. Marker-who had nothing to do with Air Master's labor relations-conceded that Air Master was negotiating with the Team- sters 13 but said that he would inform company counsel of this telephone call. Dur- ing the same day, representatives of SIU were denied entry to Air Master' s premises, and there were at least two more telephone conversations between Shepard and Marker: Shepard repeated his request for a meeting and warned the Company not to negotiate a contract with the Teamsters; Marker stated he would pass on the information. That afternoon, Shepard sent duplicate telegrams to Marker and to Harold L. Kapp, another Air Master official: As I have informed you in our telephone conversation the United Industrial Workers of North America Atlantic Gulf Lakes and Inland Waters District AFL-CIO still represents the majority of the employees within the collective bargaining unit set forth in the labor agreement. As the collective bargaining 8 Although Borden's certification made no mention of the dates on the cards , it appears, and I find, that they were signed on the morning of January 31. At the time of 'signing, the cards had authorized bargaining by the Teamsters, without a local being named; sub- sequently, the local number ( 158) was inserted. 0 Relating to a wage increase , a wage scale , contributions to a welfare plan, the setting up of a welfare plan to substitute for the SIU plan, a coffee break , and breaks in seniority. 10 The old contract contained the name of the SIU throughout-among other places, in the recognition clause and in a union security and dues checkoff clause. I find-although this was not set forth in the interim agreement of February 1-that the parties were also in implicit agreement that the name of Teamsters 158 be substituted for SIU wherever it appeared. 11 Air Master's second and third shifts, consisting of approximately 40 employees, did not work on the evening of February 1, although work was scheduled for that evening. They were not paid for the time lost. 12 In so finding, I credit witness Marker as against witness Shepard who in direct examination , testified he did not recall if the Teamsters were mentioned and, on cross- examination , testified first, "I may have said the Teamsters at the time ," and, then, "I would say the Teamsters wasn't mentioned." 13 Here again , I credit Marker's testimony. From his testimony , it was obvious that the passage of time had dimmed Shepard 's recollection of details of the conversation. 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representative of the majority of the production and maintenance employees this Union demands you meet with us in order to complete negotiations for a labor agreement. Do not recognize or sign any labor agreement with any other union. EARL SHEPARD, Vice President, Seafarer's Intl. The record does not show whether these telegrams were answered. Another meeting between Air Master and Teamsters 158 was held on February 3. Air Master refused to modify its "offer" 14 of February 1, which had been rejected by the union membership. On Sunday, February 4, there was another membership meeting. Thereafter-on the same day-Teamsters 158 representatives again met with Air Master representatives, informing them that the employees had now agreed to the terms of the February 1 interim agreement, subject only to a different distri- bution of the 16-cent "package." 15 Air Master agreed to the new condition, and appropriate changes were made on a previously prepared contract form. The finished contract was executed at 7 p.m. on Sunday, February 4,16 being predated to February 1. The contract followed the format of the (expired) SIU contract, mutatis mutandis, with a number of changes or additions: a minor alteration of the unit description, a change in the union- security requirement, a 1-year increase in Health and Welfare Fund payments, wage increases, a change in the provision for seniority breaks, and the addition of a pro- vision respecting coffee breaks.17 The contract, like its predecessor, contained a union-security clause (this time, however, running to Teamsters 158) and a dues- checkoff clause. On February 5, the same day as it filed the instant charge, SIU filed a petition for certification with the Regional Office of the Board, simultaneously notifying Air Master of the fact.ls Since the execution of its contract with Teamsters 158, Air Master, pursuant to the dues-checkoff clause, has withheld dues from the employees' pay but has held the money in escrow pending the outcome of the instant case. B. Discussion and conclusions The complaint, answers, and arguments at the hearing and in briefs framed the basic issues : whether there was a continuing demand for bargaining by SIU; whether SIU "abandoned" its rights to recognition ; whether a question concerning repre- sentation existed when Air Master accorded recognition to Teamsters 158 and, if so, whether Teamsters 158 forced Air Master to accord such recognition ; whether a question concerning representation existed when Air Master and Teamsters 158 entered into a collective-bargaining agreement, which provided , among other things, for a union shop and for the checkoff of dues; and whether , under the circumstances, the grant of recognition by Air Master, the demand for and acceptance of recog- nition by Teamsters 158, and the execution and subsequent maintenance and en- forcement of the collective -bargaining agreement were violative of the Act. Since these issues are inextricably intertwined , I shall make no attempt to treat with them individually. All parties are in essential agreement that the outcome of this case depends upon the general applicability (and correctness ) of the "Midwest Piping" line of cases.19 The line, as subsequently followed or expanded by the Board 20 stands for the proposi- tion that an employer faced with a real question concerning representation is inter- fering with his employees' rights of self-organization when he resolves the question by according recognition and executing a contract with one of two rival union- 14 The label "offer" is that used by the parties in a stipulation in this record. 15 In substance, the employees' condition would divert more of the package to wage increases and lower the Health and Welfare contributions. 11 In view of a Pennsylvania prohibition against the execution of contracts on Sunday, It was reexecuted at 12:01 a.m. on Monday, February 5. 17 A comparison of the interim agreement of February 1 (rejected by Teamsters 158's membership) and the final contract reveals that only the provisions as to coffee breaks and seniority survived unchanged. 1s The petition was dismissed by the Regional Director, on grounds not specified in this record. The dismissal was upheld by the Board on appeal, but a request for reconsidera- tion of the Board's action was pending at the time this hearing was held. 19 So-called after the lead case, Midwest Piping & Supply Co., Inc., 63 NLRB 1060. 20 For example, in Novak Logging Company, 119 NLRB 1573; Shea Chemical Corpora- tion, 121 NLRB 1027; and Duralite Co., Inc., 132 NLRB 425. AIR MASTER CORPORATION, ETC. 187 claimants; and, corollarily, that the union thus favored has likewise intruded upon the employees' self-organizational rights.21 The General Counsel and SIU urge that the instant case is covered by this principle. Respondents urge that the Midwest Piping principle does not apply and should not be applied. Air Master, among other arguments, contends that the principle is a discredited, erroneous one, pointing to the various refusals of circuit courts of appeals to follow it. Apart from the fact that my reading of the court decisions indicates to me that (at times, because of events occurring subsequent to the relevant Board decisions) many of these courts disagreed with the Board that a representation question truly existed rather than that a Midwest Piping principle was an improper one,22 I am constrained to follow what I consider to be unchanged Board precedent. I believe that Air Master's reliance upon language in the Supreme Court's decision in Team- sters Local 357 v. N.L.R.B23 as the basis for that Court's views on the Midwest Piping principle is misplaced; it presupposes that, in this area as in the one involved in that case (the hiring hall), the Board has established "a broader, more persuasive regulatory scheme" than was specified by Congress. For reasons stated in the original Midwest Piping case,24 I believe that the Board's treatment of the rival union situation fully accorded with both congressional wording and intent. Respondent Air Master has pointed out that the Board itself has gone on record as advocating a "strict construction" of the Midwest Piping principle 25 and has re- fused to apply the principle in a number of cases 26 to which a complaint sought to apply it. In each of these cases, I note, the Board concluded that there was no real question concerning representation which should serve to inhibit the employer from making a choice 27 I find each of these cases to be relevantly distinguishable from the case at hand. To say this, however, is not to dispose of the matter. For I find that none of the cases cited by the General Counsel or the Charging Party is "on all fours." It be- comes necessary to consider all the surrounding circumstances in order to determine whether, in fact, a question concerning representation existed when Air Master took the action which is the subject of this complaint. We start with the fact that, for the month of January 1962, at least 360 employees of Air Master were members of SIU, their dues having been checked off pursuant to contract.26 As of the entire period with which we are concerned, there is no con- tention or evidence that-other than might be read into their signing Teamsters authorization cards-any employee-members of SIU resigned from SIU or revoked their dues-deduction authorizations. During the morning of January 31, while they were still members of SIU and still covered by a collective-bargaining agreement running to SIU, and while negotia- tions on their behalf were still being conducted between their employer and SIU, a majority of the employees in the involved unit signed cards authorizing the Teamsters to bargain for them. At 11:20 p.m., with 40 minutes of the contract period still 2' Duralite Co., Inc., supra. 22I note, in passing, that a circuit court recently affirmed both the principle and its application by the Board to the case under consideration . N.L.R.B. v. Signal Oil and Gas Co., 303 F. 2d 785 (C.A. 5, 1962). 2s 365 U. S. 667 ( 1961). 2* At page 1070. 25 Enaher, Alexander, c6 Barroom, Inc., 74 NLRB 1443, 1445. 29 William Penn Broadcasting Company, 93 NLRB 1104; Gulf Shipside Storage Corpora- tion, 91 NLRB 181; B. M. Reeves Company, Inc., 128 NLRB 320. 27 Thus, in William Penn Broadcasting, supra, it was concluded that the rival union's claim was in an inappropriate bargaining unit ; in Gulf Shipside, supra, the rival's petition had been filed at a time-midcontract-when, under contract bar rules, so representation question could be raised; in Reeves, supra, where the complaint was based on alleged assistance to an incumbent union rather than on a Midwest Piping basis, it was held ,that there was a failure of proof ; and in Ensher itself, supra, it was held that, while a repre- sentation case was technically still pending, the only rival to the Union which was recognized by the employer was in fact "defunct." Significantly, in the first three cases, it was the recognition of the incumbent, rather than that of an outside union, which was being attacked. To the extent it has significance, it appears that the Board will allow greater leeway in the recognition of an incumbent union than of an outside union ; see William Penn Broadcasting Company, at page 1106. 2s The record contains no explanation of the discrepancy between this figure and the 270 names against which, on the morning of February 1, Teamsters 158 authorization cards were checked. In the absence of contentions or evidence to the contrary , I shall assume that the discrepancy is expainable on a lawful basis, and I shall draw no inferences there- from which are unfavorable to any of the parties. 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to run and during a negotiating meeting which, up to then, had been conducted between Air Master and SIU, Air Master was apprised of the new development by the committee which had been acting for SIU. Air Master suggested resort to a Board representation proceeding and only when a strike for recognition was threatened did it agree to the holding of a card check. Employees formally voted to "disaffiliate" from SIU and to "affiliate" with Team- sters 158 after Air Master had recognized and had arrived at a tentative collective- bargaining agreement with Teamsters 158. The natural question arises: What caused the employees to vote as they did-their uncoerced desires or the events of the preceding 24 hours? Although Respondents, among other things, have argued that Teamsters 158 "succeeded" SIU as bargaining agent-i.e., was nothing but SIU with a different name and affiliation-no such claim was made by Teamsters 158 to Air Master at the time recognition was demanded. The demand was based on the asserted claim that an overwhelming majority of Air Master had switched their allegiance from SIU to Teamsters 158. At the hearing, Respondents conceded that SIU was not "defunct." I find, in fact, that they were not; although SIU had not presented any renewed evidence of desires for SIU representation by employees, SIU representa- tives, relying upon their incumbency as bargaining agent and upon their status as union party to the recently expired contract, made affirmative (rebuffed) attempts to meet with Air Master to discuss a new contract and these attempts were made prior to the execution of a contract between Air Master and Teamsters 158.29 Air Master, in effect, concedes that the contract here executed might not be a bar to the holding of a new representation election 30 but argues that the principle does not cross over into the area of unfair labor practices. The fallacy of this reasoning is patent. If, in a companion representation proceeding, it should be found that there were no contract bar (i.e., there existed a question concerning representation), then the excuse for the employer's accord of recognition (that there was no representation question) will have been swept away. As indicated in the chronology of events, no petition for certification was on file. at the time the events complained of took place. But there was no petition on file in Genesee Foundry Company, Incorporated,31 or in Novak Logging Co.,32 where- in Midwest Piping violations were found. Deluxe Metal Furniture Company,33 reversing the General Electric X-Ray Corporation case,34 put to rest the pro forma reliance on the pendency of a petition in a rival-union situation; the filing of a petition is no longer the test of the substantiality of a union's claim. Apart from the absence of a petition at the vital moment. Respondents question the substantiality of SIU's representation claim. Teamsters 158's brief points out that SIU represented no one; indeed, at the hearing, SIU made no attempt to introduce evidence to current desires of employees. On the other hand, it is well settled 35 that an incumbent union, as such, has a "substantial" claim to representation. In this connection, I also give consideration to the fact that paid staff members of SIU, well aware of what was happening, failed to notify superior officials, thus pre- venting SIU from taking steps that might have shed more light on the desires of the employees. With an awareness that the issue is a close one-for I am certain that the Board would not permit a slavish adherence to a technical rule to becloud the outcome- I have carefully considered each of the factors herein and the total picture which they depict. In sum, viewing the record as a whole and on the basis of what I am convinced is a fair preponderance of credible evidence, I conclude that there was a question concerning representation throughout the period from February 1 to 5, inclusive; that Air Master's accord of recognition to the execution of a contract with Teamsters 158 during this period, and its subsequent maintenance and enforce- ment of the contract, not only constituted interference, restraint, and coercion of employees in the exercise of rights guaranteed them in Section 7 of the Act, but 21 At my request, the parties, in briefs, commented on Michigan Bell Telephone Company, 85 NLRB 303. Upon a rereading of that case, I find it distinguishable from the instant situation in that no vestige of the "old" union ever made a representation claim. 20 Citing Deluume Metal Furniture Company, 121 NLRB 995. 31109 NLRB 1253. 22 Supra. 33 Supra, at page 998. of 67 NLRB 997. 35 National Chemical cE Manufacturing Company, 94 NLRB 1190, 1192; Acme Brewing Company et at., 72 NLRB 1005, 1012; Bauer-Schweitzer Hop f Malt Co. et al., 72 NLRB 1233, 1228. AIR MASTER CORPORATION, ETC. 189 also constituted assistance to Teamsters 158 and discrimination in regard to tenure of employment of its employees, in violation of Section 8(a)(1), (2), and (3) of the Act; and that Teamsters 158's demand for and acceptance of recognition from and execution of a contract with Air Master during this period, and its subsequent maintenance and execution of the contract, not only constituted restraint and coercion of employees in the exercise of rights guaranteed them by Section 7 of the Act, but also constituted a causing of an employer to discriminate in regard to tenure of employment, in violation of Section 8(b) (1) (A) and (2) of the Act 36 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents set forth in section III, above, occurring in con- nection with its operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondents have engaged in certain unfair labor practices, I shall recommend that they be ordered to cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. Having found that Air Master violated Section 8(a) (1), (2), and (3) by recogniz- ing and entering into a contract with Teamsters 158 while there was a question con- cerning representation and by enforcing and maintaining the contract, which con- tained a union-security and a dues-deduction clause, I shall recommend that Air Master cease and desist from enforcing and maintaining such contract and with- draw and withhold all recognition from Teamsters 158 or any successor as the collective-bargining representative of its employees unless and until such labor organization shall have been certified by the Board. Having found that Teamsters 158 violated Section 8(b)(1)(A) and (2) by demanding and accepting recognition from and entering into a contract with Air Master while there was a question con- cerning representation and by enforcing and maintaining the contract, which con- tained a union-security and dues-deduction clause, I shall recommend that Teamsters 158 cease and desist from enforcing and maintaining such contract and cease and desist from demanding or accepting recognition from Air Master as the collective- bargaining representative of Air Master's employees unless and until it shall have been certified by the Board.37 In the absence of evidence that Air Master employees were coerced into joining or signing checkoff-authorizations running to Teamsters 158, I shall not recommend the reimbursement, by either Respondent, of dues deducted pursuant to the con- tract between Air Master and Teamsters 158 .38 Because of the narrow scope of the unfair labor practices as found herein, I shall recommend a narrow cease and desist order. Upon the basis of the foregoing factual findings and conclusions and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Air Master is a single employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Teamsters 158 and SIU are labor organizations within the meaning of the Act. so In so concluding, I have given due consideration to Air Master's argument that the above result might give rise to these anomalous questions: Suppose that SIU had never followed up on its asserted claim? Suppose it had faded out of the picture? How long would Air Master have had to refrain from the action it took? The short answer, I believe, is that Air Master acted at its peril. If my conclusion is correct, its action was the wrong one ; I do not feel called upon to say what would have been the result if SIU had never followed up its claim. In addition, Air Master has pointed to the fact that in taking the action it did, it avoided potential economic disaster-from picketing. Apart from the fact that a strike threat does not protect otherwise unlawful action, I believe that Congress' answer to this problem is found in Section 8(b) (7) (C) and the related expedited election procedure. 87 Nothing In this recommendation shall be construed to require Air Master to vary wage, hour, seniority or other substantive features of Its employees ' working conditions which may have been established pursuant to its contract with Teamsters 158. 38 Duralite Co., Ino., 132 NLRB 425, 429. 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. A question concerning representation among employees of Air Master existed at all times between February 1 and 5, 1962, inclusive. 4. By recognizing and entering into a contract with Teamsters 158 while there was a question concerning representation and by enforcing and maintaining the contract, which contained a union-security and dues-deduction clause, Air Master engaged in unfair labor practices within the meaning of Section 8(a)(1), (2), and (3) of the Act. 5. By demanding and accepting recognition from and entering into a contract with Air Master while there was a question concerning representation and by enforc- ing and maintaining the contract, which contained a union-security and a dues- deduction clause, Teamsters 158 engaged in unfair labor practices within the mean- ing of Section 8 (b) (1) (A) and (2) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices within the mean- ing-of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record of the case, I recommend that: A. Air Master Corporation, Air Master Manufacturing Company, Inc., Phila- delphia Industries, Inc., Aluminum Press Corporation, and Aluminum Smelting Cor- poration, and their officers, agents, successors, and assigns shall: 1. Cease and desist from: (a) Recognizing or contracting with Allied Trades and Bulk Plant Workers, Amusement Park Workers and Industrial Workers Local 158, Philadelphia and Vicinity, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any successor thereto, as the representative of any of their employees for the purpose of dealing with said labor organization concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other con- ditions of employment, unless and until said labor organizations shall have been certified by the Board as the exclusive representative of such employees. (b) Enforcing or maintaining its collective-bargaining contract with the above labor organization entered into on or about February 5, 1962, or any modifications, extensions, supplements, or renewals thereof, unless and until said labor organiza- tion shall have been certified by the Board as the exclusive representative of such employees. (c) In any like or related manner, interfering with, restraining, or coercing their employees in the exercise of their right to self-organization, to form labor organiza- tions, to join or assist any labor organization, to bargain collectively through repre- sentatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any and all such activities. 2. Take the following affirmative action, which I find will effectuate the policies of the Act: (a) Withdraw and withhold all recognition from Allied Trades and Bulk Plant Workers, Amusement Park Workers and Industrial Workers Local 158, Philadelphia and Vicinity, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any successor thereto, unless and until such labor organization shall have been certified by the Board as the exclusive representative of their employees. (b) Post at their plants at Philadelphia, Pennsylvania, copies of the attached notice marked "Appendix A." 39 Copies of such notice, to be furnished by the Regional Director for the Fourth Region, shall, after being duly signed by an authorized representative, be posted immediately upon receipt thereof, and be main- tained by them for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondents to insure that such notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Fourth Region, in writing, within 20 19 If these Recommendations are adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. If the Board's Order is enforced by a decree of the United States Court of Appeals, the notice will be further amended by the substitution of the words "A Decree of the United States Court of Appeals, Enforcing an Order" for the words "A Decision and Order." AIR MASTER CORPORATION, ETC. 191 days from the date of the receipt of this Intermediate Report, what steps the Re- spondent has taken to comply herewith4e B. Allied Trades and Bulk Plant Workers, Amusement Park Workers and In- dustrial Workers Local 158, Philadelphia and Vicinity, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Demanding or accepting recognition from, or contracting with Air Master Corporation, Air Master Manufacturing Company, Inc., Philadelphia Industries, Inc., Aluminum Press Corporation, and Aluminum Smelting Corporation, as the representative of their employees for the purpose of dealing with them concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other con- ditions of employment unless and until it shall have been certified by the Board as the exclusive representative of said employers' employees. (b) Enforcing or maintaining its collective-bargaining contract with the above employers entered into on or about February 5, 1962, or any modifications, exten- sions, supplements, or renewals thereof, unless and until it shall have been certified as the exclusive representative of said employers' employees. (c) In any like or related manner, restraining or coercing employees of the above employers in the exercise of their right to self-organization, to form labor organiza- tions, to join or assist any labor organization, to bargain collectively through repre- sentatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any and all such activities. 2. Take the following affirmative action, which I find will effectuate the policies of the Act: (a) Post at its offices and meeting halls and at the plants of the above employers at Philadelphia, Pennsylvania, the attached notice marked "Appendix B." 41 Copies of such notice, to be furnished by the Regional Director for the Fourth Region, shall, after being duly signed by an authorized representative, be posted immediately upon receipt thereof, and be maintained for a period of 60 consecutive days there- after, in conspicuous places, including all places where notices to members and employees of said employers are customarily posted. Reasonable steps shall be taken by Respondent to insure that such notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for the Fourth Region, in writing, within 20 days from the date of the receipt of this Intermediate Report, what steps the Re- spondent has taken to comply herewith 42 40 If this Recommended Order is adopted by the Board, this provision shall be modified to read : "Notify the Regional Director for the Fourth Region, in writing within 10 days from the date of this Order, what steps the Respondents have taken to comply herewith." 41 If this Recommended Order is adopted by the Board, the words "A Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. If the Board's Order is enforced by a decree of the United States Court of Appeals, the notice will be further amended by the substitution of the words "A Decree of the United States Court of Appeals, Enforcing an Order" for the words "A Decision and Order." 4a If this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for the Fourth Region, in writing within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the Labor Management Relations Act, we hereby notify our employees that: WE WILL NOT discourage membership in SIU, or any other labor organiza- tion, by discriminating as to the hire, tenure or any other term or condition of employment of any of our employees. WE WILL NOT recognize or contract with Teamsters 158 as representative of our employees unless and until that organization has been certified by the National Labor Relations Board as the exclusive. representative of our employees. WE WILL NOT enforce the contract entered into with Teamsters 158 on or about February 5, 1962, unless and until that labor organization has been 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD certified by the National Labor Relations Board as the exclusive representative of our employees. WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights to organize; to form, join, or assist a labor organization; to bargain collectively through a bargaining agent chosen by themselves; to engage in other concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection; or to refrain from any such activities (except to the extent that the right to refrain is limited by the lawful enforcement of a lawful union-security requirement). WE WILL withdraw and withhold all recognition from Teamsters 158 as representative of our employees unless and until that labor organization has been certified by the National Labor Relations Board as the exclusive representa- tive of our employees. AIR MASTER CORPORATION; AIR MASTER MANUFACTURING COMPANY, INC.; PHILADELPHIA INDUSTRIES, INC.; ALUMI- NUM PRESS CORPORATION; AND ALUMINUM SMELTING CORPORATION, Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered , defaced, or covered by any other material. Employees may communicate directly with the Board 's Regional Office, 1700 Bankers Securities Building, Walnut and Juniper Streets , Philadelphia, Pennsylvania, 19107 , Telephone No. Pennypacker 5-2612 , if they have any question concerning this notice or compliance with its provisions. APPENDIX B NOTICE TO ALL MEMBERS Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify you that: WE WILL NOT demand or accept recognition from or contract with Air Master Corporation, Air Master Manufacturing Company, Inc., Philadelphia Industries, Inc., Aluminum Press Corporation, and Aluminum Smelting Corporation as representative of their employees unless and until we have been certified by the National Labor Relations Board as the exclusive representative of their employees. WE WILL NOT enforce the contract entered into with the above employers on or about February 5, 1962, unless and until we have been certified by the National Labor Relations Board as the exclusive representative of their employees. WE WILL- NOT in any like or related manner, restrain, or coerce employees of the above employers in the exercise of their right to organize; to form; join, or assist a labor organization; to bargain collectively through a bargaining agent chosen by themselves; to engage in other concerted activities for the pur- pose of collective bargaining or other mutual aid or protection; or to refrain from any such activities (except to the extent that the right to refrain is limited by the lawful enforcement of a lawful union-security requirement). ALLIED TRADES AND BULK PLANT WORKERS, AMUSEMENT PARK WORKERS AND INDUSTRIAL WORKERS LOCAL 158, PHILADELPHIA AND VICINITY, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELP- ERS OF AMERICA, Labor Organization. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 1700 Bankers Securities Building, Walnut and Juniper Streets, Philadelphia, Pennsylvania, 19107, Telephone No. Pennypacker 5-2612, if they have any question concerning this notice or compliance with its provisions.