Teramana Brothers Coal Mining Co.

TERAMANA BROTHERS Teramana Brothers Coal Mining Company and United Mine Workers of America , District 61 and Tera- mana Coal Employees Union,2 Party to the Contract. Case 8-CA-4818 November 5, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On April 19, 1968, Trial Examiner Sidney Sherman issued his Decision in the above-entitled proceeding, finding that Respondent had not engaged in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel and the Charging Party filed exceptions to the Trial Exam- iner's Decision and supporting briefs, and Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. 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 Trial Examiner's Decision, the exceptions, briefs, and the entire record in this case, and finds merit in the exceptions of the Charging Party and the General Counsel. The Board therefore adopts the findings and conclusions of the Trial Examiner only to the extent consistent with the Decision herein. Following certification of the Union as representa- tive of Respondent's production and maintenance employees on September 30, 1966, Respondent and the Union initiated contract negotiations on January 3, 1967, which continued until April 22, 1967. On that date agreement was reached. The execution of a written contract by the parties was, however, made contingent upon the condition that Respondent obtain a higher price for its coal from Ohio Edison Company, Respondent's sole customer. Efforts to obtain the higher price were undertaken by represen- tatives of the Union's International, and according to the testimony of Williams, the Union's president, continued throughout the succeeding summer months. In the meantime, the Union's local involved herein was duly organized and held meetings, while contact between it and Williams concerning the progress of price raise negotiations was maintained informally through personal contacts and phone calls to him from the Local's president. 581 Because of agitation for an independent organiza- tion to represent employees, commencing sometime in September 1967, an employee meeting was called on September 30, 1967, for the announced purpose of determining employee preference as between the Union and an independent; a vote by secret ballot was then taken following discussion of the issue, explana- tion of the voting procedure, and exhibition of a sample ballot. The secret ballot vote resulted in 16 "yes" votes for the Union and 15 "no" votes. Although two employees testified to confusion at the meeting on their part regarding the voting procedure, other employees testified that the procedure was plainly understandable and clearly explained at the meeting. There was additional uncontroverted testi- mony from Williams that a number of union adher- ents were absent from the meeting. Following this favorable majority vote, the Union on October 5, wrote Respondent's counsel requesting the resump- tion of negotiations. Having received no reply to this letter, the Union again communicated this request to Respondent by telegram dated October 25. A petition dated October 7, 1967, prepared in the office of Respondent and typed by a secretary, was circulated among employees and presented to Re- spondent's president with 42 signatures, including 3 clericals not part of the unit and Dominic Teramana Jr., son of a part-owner of Respondent. Teramana, upon receipt of this petition, and without any effort to authenticate the signatures thereon, at once sug- gested to employees that a committee of their number be formed to negotiate a contract. On October 30, 1967, Respondent notified the Union that it would not negotiate further with it, and on November 14, approximately 2 weeks after its initial meeting with the committee representing the Inde- pendent, Respondent executed a contract with the Independent. The Trial Examiner found that, contrary to the allegations of the complaint, Respondent did not violate Section 8(a)(2) and (1) in recognizing and contracting with the Independent. The grounds relied upon by the Trial Examiner for these findings were twofold: (a) he concluded that the Union's claim to representation was not substantial enough to bring it within the doctrine of the Board's decision in Midwest Piping,3 since at the time Respondent agreed to deal directly with a committee of employees, the Union had at most 5 adherents out of a unit of 41; and (b) the Trial Examiner held that the Union's request for renewed bargaining, made October 5, 1967, was not bona fide because it was made only in response to the employees' agitation for an indepen- dent union. Therefore, the Trial Examiner concluded, Respondent was not precluded from dealing with the Hereinafter called the Union . 3 Midwest Piping & Supply Co ., Inc, 63 NLRB 1060. 2 Hereinafter called the Independent. 173 NLRB No. 93 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Independent Union. We do not agree with the Trial Ex- aminer's conclusions. Just prior to Respondent's recog- nition of the Independent, Respondent had received two demands for continuation of bargaining from the incumbent union, a consideration which the Board has found to raise a substantial question concerning representation.' This incumbent union had been certified by the Board as sole representative of its employees following an election among them, the Union had been the employees' representative during several months of contract negotiations, January to April 1967, and Respondent had arrived at substantial agreement with it as to contract provisions securing various substantive advantages to the employees. The Union at its own behest was to seek higher prices for Respondent's coal from its principal customer, in order to render execution and application of the Union's area contract possible. Respondent's employ- ees had organized themselves to constitute a local chapter of this union and, other than the possible inference to be drawn from the petition, there is no evidence of employee resignation from the Union. Respondent was faced with renewed demands for bargaining by the Union following a vote by employ- ees at a meeting it admitted having knowledge of. Though Respondent denied actual knowledge of the outcome of the vote, the fact remains that promptly thereafter Respondent was faced, as already indi- cated, with renewed and vigorous demands for bar- gaining by the Union. Contrary to the Trial Exam- iner's observation, the Union's renewed demands for bargaining, on October 5, were sent and received before Respondent received the petition from the Independent, and, indeed, before circulation, or even preparation, of such petition, which was dated Octo- ber 7; we thus cannot conclude, as did the Trial Examiner, that Respondent's request for bargaining came after the circulation of the petition, and only in response thereto. Respondent, nevertheless, when presented with the petition of the Independent on or about November 1, 1967, without questioning the authenticity of the signatures, instantaneously urged upon the employees presenting it that they form a committee with which Respondent could negotiate a contract. We find it difficult to say in the circumstances of this case that Respondent maintained an attitude of strict neutrality throughout, and that it acted in good faith in recognizing the Independent. In any event, we cannot accept the Trial Examiner's holding that the apparent numerical majority reflected by the signa- tures on the petition favoring the Independent re- moved the existence of a question concerning repre- sentation.' As the Board has often stated, an employ- er cannot arrogate to himself authority to determine which of two or more contending unions is entitled to recognition as exclusive bargaining agent.' This is particularly so on the facts of the present case, in which the incumbent, certified Union had just re- ceived a vote of confidence from employees, and had reiterated to the Respondent its demand for con- tinued bargaining. We accordingly find that by recog- nizing and executing a collective-bargaining agreement with the Independent, in the face of an existing question concerning representation, Respondent granted unlawful assistance and support to the Inde- pendent in violation of Section 8(a)(2) and (1) of the Act. THE REMEDY We have found that the Respondent recognized the Teramana Coal Employees Union and entered into an agreement with it on November 14, 1967, all during the pendency of a real question concerning represen- tation of the employees covered thereby; and that by such conduct, Respondent has interfered with, re- strained, and coerced its employees in the exercise of their right freely to select their own bargaining representative, and has accorded unlawful assistance and support to the Teramana Coal Employees Union, in violation of Section 8(a)(2) and (1) of the Act. In order to dissipate the effect of Respondent's unfair labor practices, we shall order Respondent to with- draw and withhold all recognition from Teramana Coal Employees Union, and to cease giving effect to the aforementioned agreement, or to any renewal, modification, or extension thereof, until such time as Teramana Coal Employees Union shall have been certified by the Board as the exclusive representative of the employees in question. Nothing herein shall, however, be construed to require that Respondent vary or abandon any existing term or condition of employment. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Teramana Brothers Coal Mining Company, Steuben- ville, Ohio, its officers, agents, successors, and assigns, shall : 4 See, e g, National Chemical & Manufacturing Co, 94 NLRB 1190, 1192. 5 See Iowa Beef Packers, Inc., 144 NLRB 615, 619 We do not view The Boy's Market, Inc., 156 NLRB 105, relied on by the Trial Examiner, as apposite. In that case, the Board found that, when the respondents had recognized one union for a new unit of snack bar employees, the incumbent union had, in effect, no colorable claim to represent these employees The snack bar employees had never been covered by the multiemployer contract respondents had executed with the incumbent union, and that union's claim was viewed as part of an all-encompassing claim-for the most part unsupported by cards-to represent the snack bar employees as part of the existing multiemployer unit. 6 Iowa Beef Packers, Inc., supra, and cases cited therein. TERAMANA BROTHERS 1. Cease and desist from: (a) Assisting or contributing support to the Teramana Coal Employees Union, or to any other labor organization, by recognizing such labor organi- zation as the exclusive representative of any of its employees for the purpose of collective bargaining at a time when there exists a real question concerning representation, or in any other manner. (b) Giving effect to its contract of November 14, 1967, with the Teramana Coal Employees Union or to any renewal, modification, or extension thereof, unless and until said labor organization has been duly certified by the National Labor Relations Board as the exclusive bargaining representative of such em- ployees. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the right to self-organization, to form labor organiza- tions, to join or assist United Mine Workers of America, District 6, or any other labor organization, to bargain collectively through representatives 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 and 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 it is found will effectuate the policies of the Act: (a) Withdraw and withhold all recognition from Teramana Coal Employees Union as the repre- sentative of its employees for the purposes of collective bargaining unless and until the said labor org nization has been duly certified by the National Labor Relations Board as the exclusive representative of such employees. (b) Post at its plant in Steubenville, Ohio, copies of the attached notice marked "Appendix."7 Copies of this notice, on forms provided by the Regional Director for Region 8, shall, after being duly signed by a representative of Respondent, be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees 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. (c) Notify the Regional Director for Region 8, in writing, within 10 days from the date of this Decision 7 In the event that this Order is enforced by a decree of a United States Court of Appeals , there shall be substituted for the words "a 583 and Order, what steps Respondent has taken to comply herewith. APPENDIX NOTICE To ALL EMPLOYEES Pursuant to the 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. WE WILL NOT assist or contribute support to the Teramana Coal Employees Union, or any other labor organization, by recognizing, or contracting with, such labor organization as the exclusive representative of our employees for the purpose of collective bargaining at a time when there exists a real question concerning representation, or in any other manner. WE WILL NOT give effect to our November 14, 1967, agreement with the Teramana Coal Employ- ees Union or to any renewal, extension, modifi- cation, or supplement thereof unless and until said labor organization has been duly certified by the National Labor Relations Board as the exclusive representative of our employees, but nothing herein shall be construed to require that Respon- dent vary or abandon any existing term or condition of employment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist United Mine Workers of America, District 6, or any other 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, or to refrain from engaging in 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. WE WILL withdraw and withhold all recognition from Teramana Coal Employees Union as the collective-bargaining representative of our employ- ees unless and until said labor organization has been certified as such by the National Labor Relations Board. Decision and Order" the words "a Decree of the United States Court of Appeals Enforcing an Order." 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD TERAMANA BROTHERS COAL MINING COMPANY (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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 1695 Federal Office Building, 1240 E. 9th Street, Cleveland, Ohio 44199, Telephone 216- 522-3715. TRIAL EXAMINER'S DECISION SIDNEY SHERMAN, Trial Examiner: The original charge herein was served upon Respondent on November 15, 1967,1 the complaint issued on December 28, and the case was heard on March 7, 1968. Briefs were filed after the hearing by the General Counsel and Respondent. The only issue litigated was whether Respondent violated Section 8(a)(2) and (1) of the Act by recognizing and contracting with, Teramana Coal Employees Union. Upon the entire record2 and my observation of the witnesses, I adopt the following findings and conclusions. I. RESPONDENT'S BUSINESS Anthony J. Teramana, Alfred J. Teramana, and Dominic J. Teiamana constitute a partnership, doing business as Teramana Brothers Coal Mining Company, which partnership is the Respondent herein, and such partnership is herein referred to as Respondent. It is engaged in the mining of coal in the Steubenville, Ohio, area, and annually ships coal valued in excess of $50,000 to the Toronto, Ohio, facility of Ohio Edison Company. That Company is a public utility, which annually grosses more than $500,000, and which annually buys more than $50,000 worth of goods or services directly from out-of-State sources.3 Respondent is engaged in operations affecting commerce within the meaning of the Act, and it will effectuate the policies of the Act to assert jurisdiction herein .4 II. THE UNIONS INVOLVED United Mine Workers of America, District 6, hereinafter called the Union, and Teramana Coal Employees Union, i All dates refer to 1967, unless otherwise stated 2 For corrections of the transcript , see the orders of April 10 and 12, 1968. 3 The above findings are based in part on admissions by Respondent in its answer and at the hearing , and in part on a stipulation received from Respondent after the hearing as to the accuracy of certain data submitted by the General Counsel after the hearing Such stipulation and submission have been marked as Trial Examiner 's Exhibits 1 (a), (b), (c), and (d), and are hereby received in evidence. 4 Siemons Mailing Service, 122 NLRB 81, Sioux Valley Empire Electric Association , 122 NLRB 92 hereinafter called the Independent, are labor organizations under the Act. III. THE UNFAIR LABOR PRACTICES A. Sequence of Events On September 30, 1966, the Union was certified as the representative of Respondent's production and maintenance employees. Negotiations for an initial contract began on January 3, but were broken off on April 22. At a bargaining meeting on that date the parties reached agreement on contract terms, which included a 25-cent an hour wage increase, but it was also agreed that the contract would not take effect until Respondent succeeded in obtaining a higher price for its coal from Ohio Edison Company, which was Respondent's only customer. The Union undertook to attempt to negotiate such a price increase. However, all the Union's efforts in that direction were unavailing. As a result of the bargaining stalemate Respondent's employees became restive, and on September 30, 31 of the approximately 40 employees in the unit attended a meeting, where, after some discussion, they voted by secret ballot on the question of representation by the Union or by an independent union. The tally of ballots showed 16 "yes" votes and 15 "no" votes. About October 1, and for 2 weeks thereafter the employees circulated a petition repudiating the Union and requesting direct negotiations with Respondent for a contract. Upon learning of these develop- ments, the Union on October 5, wrote Respondent's counsel, requesting the resumption of negotiations. On October 13 or 14, Respondent received the aforementioned employee peti- tion, which bore the names of 42 employees, and agreed to negotiate with a committee to be selected by the employees. On October 25, having recieved no reply to its letter, the Union sent a follow-up wire to Respondent's counsel, who, on October 30, rejected the Union's bargaining request, citing the fact that Respondent had learned that the Union no longer represented the employees and that they wished to negotiate directly with Respondent. After some bargaining between Respondent and the employee committee, a contract was executed on November 14, which was signed by the members of the committe on behalf of the Independent, and which granted a wage increase, albeit less than that provided for in Respondent's "tentative" contract with the Union. B. Discussion The only issue here is whether Respondent violated Section 8(a)(2) and (1) of the Act by recognizing and bargaining with the Independent and executing the foregoing contract, in the face of the Union's bargaining request.5 The General Counsel relies on the Board's Midwest Piping6 doctrine, which requires that, when confronted with con- flicting representation claims, the employer maintain a posi- tion of neutrality and refrain from recognizing any union, 5 The General Counsel does not contend that the rejection on October 30, of the Union's bargaining requests violated Section 8(a)(5) of the Act, presumably in recognition of the fact that any presumption that the Union's majority status continued beyond the certification year was effectively rebutted by the fact that the petition repudiating the Union was signed by an overwhelming majority of the employees. 6 Midwest Piping & Supply Co, Inc., 63 NLRB 1060, Novak Logging Company, 119 NLRB 1573, 1574. TERAMANA BROTHERS pending a Board resolution of the matter. This rule has been held not to apply, however, where there is no "real question concerning representation," as where the unit sought by one of two competing unions is inappropriate,7 where such a union does not have sufficient employee support to give it a "colorable" or "substantial" claim, or where such a union has become defunct by the time its rival is recognized.8 Respondent contends that the Union's claim was not "substantial" and that, in any event, the Union should be treated as having become "defunct" by mid-October, when Respondent recognized the Independent. 1 The "substantial claim" issue In Boy's Market, supra, the Board held that a union's claim was not substantial enough to warrant application of the Midwest Piping rule, where the union had obtained 5 signed cards out of a unit of 21 employees. On the other hand, more recently, in American Bread Company,9 the Board found that a claim by a local of the Teamsters' union made in March 1966, raised a "substantial" representation question, even though only 8 out of 92 employees in the unit sought by it had signed cards for that union at the time that the employer recognized a rival union, which had produced 170 cards out of 295 employees in the more inclusive unit sought by it. However, in that case, the Board pointed out, inter aka, that the Teamsters local was still pursuing before the Board its claim that an election held in May 1965, on the employer's petition, which election had been lost by that local, was invalid, and, in fact, on the same day that the above decision issued, the Board in a companion case,i o issued a decision sustaining that claim and directing that a new election be held. In view of such ruling, which in effect recognized that the representation question raised by the employer's 1965 petition had not yet been resolved, the Board could hardly have held that there was no real representation issue in April 1966, when the employer recognized the rival union. As no such situation exists here, it would seem that the controlling precedent is Boy's Market, where the Board held that a union's claim supported by only 5 out of 21 employees in the unit did not preclude recognition of a rival union as the bargaining agent for such unit. Here, the petition repudiating the Union contained 42 names. It was stipulated that Respondent had 44 employees on its payroll on October 6. If one eliminates from both these figures the 3 office employees, who signed the petition, although not in the bargaining unit, the count becomes 39 purported signers out of 41 unit employees. And, if Dominic Teramana, Jr., and Di Carlantonio, both whose names do not 7 William Penn Broadcasting Co., 93 NLRB 1104 8 The Boy's Market, Inc, 156 NLRB 105, Ensher, Alexander & Barsoom, Inc., 74 NLRB 1443 9 170 NLRB No.20 10 American Bread Company, 170 NLRB No 19 11 As the son of a part -owner of Respondent , D Teramana, Jr., would not be deemed eligible , in any event. 12 Such endorsements appear over those of the wives , and apparently were made in connection with the deposit of the checks in joint bank accounts 13 Among the specimen signatures submitted at the hearing was that 585 appear on the stipulated payroll list, are also eliminated from the number of signatories, the count is 37 out of 41.11 The bulk of the signatures on the petition were not authenticated at the hearing other than by the production of payroll records and checks purporting to bear specimens of the signatories' handwriting, and it was agreed that the parties would be bound by my ruling as to the authenticity of the signatures on the petition, on the basis of a comparison thereof with such specimens. From such comparison, I am satisfied that the signatures on the petition are genuine, except for those of Hoover and E. House. As to them, I can make no determination on the foregoing basis, since the only specimens submitted were apparently endorsements made by their wives on checks issued to the husbands.12 However, as Miller attested at the hearing that he saw Hoover sign the petition, I deem that sufficient verification of his signature. It thus appears that at least 36 out of the 41 unit employees signed the petition and that the only ones in the unit who clearly did not sign are Hanks, Zende, Chilensky, and Modransky.13 Accordingly, if one is to consider the petition as accurately reflecting employee sentiment, it appears that at the time the Respondent agreed to deal directly with a committee of employees, the Union had at most only five adherentsi 4 out of 41. Under the rule of Boy's Market such a count would not suffice to preclude Respondent from dealing with another union. Moreover, of the foregoing five employees, there was no evidence at the hearing as to the reason for the failure of Modransky and Chilensky to sign the petition, and only as to Zende and Hanks was there any competent, affirmative evidence that they were Union adherents in October.' 5 It may be contended that Boy's Market is distinguishable on the ground that, there, the prevailing union demonstrated its majority status by a "reliable" card check, whereas, here, there is only a petition. While one may well debate the relative reliability of signatures on union authorization cards and signatures on petitions as an index of employee sentiment, I am aware of no Board rulings that one is per se more reliable than the other. Both must be appraised in the light of the circumstances under which they were obtained. In Boy's Market the Board found the card check to be reliable evidence of employee sentiment notwithstanding that 5 of the 17 employees of Boy's Market, who signed cards for the prevailing union, had also signed cards for the rival union.' 6 Here, there is the somewhat analogous question of the effect to be given to the employee vote on September 30. As already related, 16 "yes" votes were cast as against 15 "no" votes. However, it is clear that the ballots, themselves, did not contain a statement of the proposition on which the employees were voting, and, while E. Blake and Hanks testified that it was announced at of "Charles Young " However, his name does not appear on the stipulated payroll list, presumably because , as he testified , he left Respondent 's employ on October 3. 14 Absent proper verification of E. House's signature on the petition, I have counted him as a possible Union adherent, even though it would seem more realistic to assume , under all the circumstances, that, had Respondent been given further opportunity to do so, his signature would have been duly verified. 15 As to the evidence relating to E. Blake, who signed the petition, see the discussion in the text , below. 16 See fns . 12 and 14 at 115 of cited decision. 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the meeting, before the voting, that a "yes" vote represented a vote for the Union, and a "no" vote meant a vote for the Independent,' 7 Rider and Miller testified that they did not recall hearing any such explanation, and both attested that they voted "yes," although they meant to express a preference for the Independent. Apart from Blake and Hanks, the General Counsel adduced no evidence from any of those voting at the September 30 meeting that they meant to cast their votes for the Union. It is manifest from the foregoing that, despite any announcement or other measures that may have been taken to apprise the employees of the significance of the "yes" and "no" votes,' 8 there was some confusion among the employees as to the matter. This circumstance detracts from the weight to be given to the result of the vote as impeaching the reliability of the petition or as establishing that the Union still had a substantial following among the employees when the Inde- pendent won recognition. Moreover, the record shows that the petition was circulated during the first 2 weeks of October It necessarily follows that all the signatures thereon were affixed after the September 30 vote, which circumstance permits the inference that most of those employees who may have favored the Union on September 30, experienced a change of heart during the next 2 weeks. As to the circumstances under which the signatures on the petition were obtained, the General Counsel disclaimed any contention that any pressure to sign was, in fact, exerted by Respondent, and there was no evidence to that effect. There was only testimony by E. Blake as to a subjective belief by him that Respondent had neglected to call him to work on a particular day because of his initial refusal to sign the petition,' 9 and testimony by Zende that Snyder, who solicited his signature thereon, attempted to overcome his objection to the petition, by telling him that, if he signed it, he "would look better for the Company." However, even if this remark be deemed coercive, the fact remains that Zende did not sign the petition. From none of the other employees who testified at the hearing did the General Counsel elicit any evidence of coercion, nor, so far as the record shows, was any attempt made by him to call any other employee to testify on the, matter. Upon consideration of all the foregoing matters, it is concluded that the evidence does not preponderate in favor of a finding that the petition did not reflect the true sentiments of all those who signed it,20 or, conversely stated, that any representation claim that may have been implicit in the Union's request for resumption of bargaining was a substantial claim. 2. The "defunctness" issue As already noted, the Board has held that the Midwest Piping rule does not apply where one of two rival unions has become defunct by the time that the other union is recognized.2 i In its brief, Respondent contends that, here, the status of the Union in October was analogous to that of a 17 Both testified , also, that they indicated their preference for the Union by voting "yes." In addition , Young testified that he "believed" that "yes" signified a preference for the Union 18 Blake testified that a sample ballot was posted showing that "yes" was for the Union and "no" for the Independent 19 He eventually did sign the petition , although professing at the hearing to still favor the Union. defunct union, since it not only had lost the support of about 90 percent of the employees but also had for nearly half a year abandoned any effort to bargain The fact that the Union on October 5 did request a bargaining meeting may well be deemed to preclude any finding that it was defunct. It therefore becomes pertinent to consider whether this was a meaningful request or only one designed to simulate an appearance of vitality and to stymie any negotiations with other employee representatives. This inquiry is relevant not only on the issue of defunctness but also because it would seem that a bargaining request made for the latter reason should not be deemed to raise a real question concerning representation under Midwest Piping It is clear from the testimony of Williams, the president of the Union, that he recognized that bargaining had reached an impasse on April 22, and that (short of strike action) the impasse could be broken only by Respondent's obtaining a higher price for its coal. Moreover, while Williams testified that the Union undertook to induce Respondent's sole customer, Ohio Edison Company, to grant price relief to Respondent, he admitted that the Union's request for such relief had been rebuffed by that Company even before April 22, and, although he testified vaguely as to the Union's continuing efforts to obtain such relief, he failed to indicate whether such efforts were still being pursued in October or what prospect, if any, there was of success. When asked why he wished to meet with Respondent on October 5, Williams testified that he wanted to see "if we couldn't negotiate a contract . . with the thought in mind that the way the men felt, that they would use their economic strength." In this connection, he explained that he had finally reached the conclusion that the bargaining impasse could be broken only by strike action, and that his October 5 letter was written after he heard that at the September 30 employee meeting a majority had voted for the Union. Thus, the net effect of Williams' testimony was that, upon hearing that at the September 30 meeting a majority had voted for the Union, he was encouraged to believe that the employees would support a strike to break the bargaining impasse, and that this was what prompted him to request a meeting with Respon- dent. However, when asked why he did not call a strike after Respondent had on October 30, refused to meet with him, he answered only that he doubted whether the Union "had the economic strength ... to sustain a strike." Although he insisted that he still believed, even at the time of the hearing, that the majority of the employees favored the Union, he failed to explain why on October 5, he thought that a strike was feasible but no longer thought so after October 30. In view of this apparent self-contradiction, I do not credit his testimony that he sought a renewal of bargaining as a prelude to strike action, and, absent any suggestion by Williams that the Union was prepared in October to modify the demands which had led to the impasse, the timing of Williams' October 5 letter in relation to the circulation of the petition and the 20 Even as to Blake, I do not deem his aforecited testimony as to his subjective belief that he was being pressured by Respondent to sign the petition to be entitled to any probative weight . It is well settled that an employee's subjective reasons for signing a union card are not competent to impeach the card. Presumably , the same rule would apply to a petition designating a union as bargaining agent. 21 Ensher, Alexander & Barsoom, Inc., supra. TERAMANA BROTHERS 587 agitation for an independent union22 is persuasive that the only reason for the October 5 request was to block negotia- tions by Respondent with any other representative of the employees, and not any expectation that further bargaining would be productive. Under these circumstances, it is found that the Union's bargaining requests in October were not prompted by a genuine desire to meet with Respondent nor related to any plan to exert economic pressure on it, but was solely for the purpose of frustrating the employees' attempt to break the existing stalemate through direct negotiations. It is accordingly concluded that, whether or not the Union be deemed to be defunct, such an illusory or sham request for bargaining did not raise a real question concerning representation within the contemplation of the Midwest Piping rule, and that for this additional reason there is no basis here for finding the violation alleged in the complaint.2 3 RECOMMENDED ORDER It is ordered that the complaint herein be dismissed in its entirety. 22 Williams admitted that before he wrote the October 5 letter, he knew of the petition and the interest of the employees in an Independent union 23 The General Counsel cites Couch Electric Company, 143 NLRB 662, and Air Master Corporation, 142 NLRB 181, where it was found that the employer violated the Act by recognizing a rival union about the same time that an incumbent union was seeking the negotiation or execution of a new contract. However, in those cases the incumbent's bargaining activity did not occur , as here, against a background of a bargaining impasse and the complete absence, for nearly half a year, of any contact between the incumbent and the employer Moreover, unlike the situation here, there was no reason in those cases to question the good faith of the incumbent union's efforts to obtain a contract nor any reason to believe that such efforts were merely simulated in order to forestall any dealings by the employer with another representative of the employees