Belleville News Democrat, Inc.

BELLEVILLE NEWS DEMOCRAT, INC 431 Belleville News Democrat, Inc. and International Printing Pressmen and Assistant's Union of North America, St. Louis Web Printing Pressmen and Fly- men's Local No. 38, AFL-CIO and International Printing Pressmen and Assistant's Union of North America, Belleville Printing Pressmen's Union No. 113, AFL-CIO, Party to the Contract. Case 14- CA-5665 February 16, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS that Respondent violated Section 8(a)(2) and ( 1) of the Act.3 THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The acts of Respondent set forth above, occurring in connection with its operations, as described in the Trial Examiner's Decision, have a close, intimate, and sub- stantial relationship to trade, traffic, and commerce among the several States, and lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY On September 22, 1971, Trial Examiner Herbert Sil- berman issued the attached Decision in this proceed- ing. Thereafter, the General Counsel and the Charging Party filed exceptions and supporting briefs. Respond- ent filed cross-exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and except as noted below, has decided to affirm the Trial Examiner's rulings, findings, and conclusions. Contrary to the Trial Examiner we find that Re- spondent violated Section 8(a)(2) and (1) of the Act by imposing upon its pressroom employees the terms of an agreement with Local 113, previously negotiated by a multiemployer association acting on behalf of its em- ployer members. We reach this result because Re- spondent took the action at a time when there was pending before the Board a petition filed by Local 38 which raised a question concerning representation in an appropriate unit.' We note, in addition, that Re- spondent was aware at all times here material that Local 38's claim of representation for that unit of em- ployees was asserted with the approval of Local 113 and that Local 113 had disclaimed any interest in con- testing Local 38's claim. We conclude that by imposing the terms of the mul- tiemployer agreement on its employees, Respondent usurped the Board's function of resolving the represen- tation question and erroneously resolved the question. Therefore, based on the well-established principle enunciated in Midwest Piping & Supply Co., Z we find We found, in Belleville News Democrat, Inc, 185 NLRB No 140, that Respondent had been unequivocally withdrawn from the multiemployer unit, and that the petition filed by Local 38 for a unit confined to the pressroom employees of Respondent described an appropriate unit and raised a genuine question concerning representation. ' 63 NLRB 1060 Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(2) and (1) of the Act, we shall order that it cease and desist from such practices and take such affirmative action as will effectuate the policies of the Act. Inasmuch as Respondent improperly resolved the question concerning the representation of its pressmen employees by according Local 113 recognition as their collective-bargaining representative at a time when a petition filed by Local 38 which raised a question con- cerning representation was pending before the Board, we shall order Respondent withdraw and withhold such recognition unless and until Local 113 has demon- strated exclusive majority representative status in the appropriate unit pursuant to a Board-conducted elec- tion. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Printing Pressmen and Assistant's Union of North America, St. Louis Web Printing Pressmen and Flymen's Local No. 38, AFL-CIO, and International Printing Pressmen and Assistant's Union of North America, Belleville Printing Pressmen's Un- ion No. 113, AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act. ' We agree with the Trial Examiner that Respondent did not violate Section 8(a)(3) and (1) by refusing to reinstate strikers who had been perma- nently replaced In International Printing Pressmen and Assistants Union of North America, Local 38 (Belleville News Democrat), 187 NLRB No 57, we found that the strike of May 1970 had no recognitional purpose but was directed, rather, to Respondent's alleged misconduct in connection with the demotion of Supervisor Gruenewald This conduct was not alleged to be an unfair labor practice Nothing in this record persuades us that our previous finding as to the strike's objective was erroneous Accordingly, and as the strike must therefore be deemed to be economic in character, Respondent was not obligated to discharge the striker-replacements We also agree with the Trial Examiner's conclusion that, in the circum- stances of this case, General Counsel has not proved a violation of Section 8(a)(5) of the Act or otherwise established a basis for the issuance of a bargaining order 195 NLRB No. 86 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. All pressmen employees, including apprentices, of the Employer employed in its Belleville, Illinois, plant, excluding all other employees, clericals, guards, watch- men, professional, managerial, and supervisory person- nel constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 4. By recognizing International Printing Pressmen and Assistant's Union of North America, Belleville Printing Pressmen's Union No. 113, AFL-CIO, as the exclusive representative of the employees comprising the appropriate unit at a time when there was pending before the Board a petition which was filed by Interna- tional Printing Pressmen and Assistant's Union of North America, St. Louis Web Printing Pressmen and Flymen's Local No. 38, AFL-CIO, and which raised a genuine question concerning the representation of such employees, Respondent violated Section 8(a)(2) and (1) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Belleville News Democrat, Inc., Belleville, Illinois, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Imposing on its pressmen employees any mul- tiemployer contract negotiated between Belleville Em- ploying Printers Association and International printing Pressmen and Assistant's Union of North Printing Pressmen's Union No. 113, AFL-CIO, since on or after February 18, 1970, or otherwise recognizing or entering into any other contract with said labor organi- zation as the collective-bargaining representative of any of its pressmen employees at the Belleville, Illinois, plant, unless and until the National Labor Relations Board certifies that said labor organization is the exclu- sive representative of a unit composed of Respondent's pressmen employees. However, it is expressly provided that nothing herein shall be construed as requiring Re- spondent to withdraw, change, or abandon any of the benefits, terms, and conditions of employment cur- rently enjoyed by such pressmen employees. (b) In any like or related manner interfering with or coercing its employees in the exercise of the rights guar- anteed to them by Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Withdraw and withhold all recognition from In- ternational Printing Pressmen and Assistant's Union of North America, Belleville Printing Pressmen's Union No. 113, AFL-CIO, as the collective-bargaining repre- sentative of its pressmen employees, unless and until the National Labor Relations Board certifies that said labor organization is the exclusive representative of a unit composed of Respondent's pressmen employees. (b) Post at its Belleville, Illinois, plant copies of the attached notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Region 14, after being duly signed by Respondent's representative, shall be posted by Respondent immedi- ately upon receipt thereof, and be maintained by it 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 Region 14, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 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 you that: WE WILL withdraw and withhold all recogni- tion from International Printing Pressmen and Assistant's Union of North America, Belleville Printing Pressmen's Union No. 113, AFL-CIO, as the collective-bargaining representative of any of our pressmen employees, and will not recognize said labor organization unless and until the Na- tional Labor Relations Board certifies that said labor organization is the exclusive representative of our pressmen employees. WE WILL NOT impose on our pressmen em- ployees any multiemployer contract negotiated be- tween Belleville Employing Printers Association and International Printing Pressmen and Assis- tant's Union of North America, Belleville Printing Pressmen's Union No. 113, AFL-CIO, since on or after February 18, 1970, or otherwise recognize or enter into any other contract with said labor or- ganization as the collective-bargaining representa- tive of any of our pressmen employees at the Belle- ville, Illinois, plant, unless and until the National Labor Relations Board certifies that said labor or- BELLEVILLE NEWS DEMOCRAT, INC. 433 ganization is the exclusive representative of a unit composed of our pressmen employees. WE UNDERSTAND that nothing in the Board's Order requires us to withdraw, change, or aban- don any term or condition of employment cur- rently enjoyed by our pressmen employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of any right guaranteed to them by Section 7 of the National Labor Relations Act. BELLEVILLE NEWS DEMOCRAT, INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 210 North 12th Boulevard, Room 448, St. Louis, Missouri 63101, Telephone 314-622-4142. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HERBERT SILBERMAN, Trial Examiner: Upon a charge and an amended charge respectively filed on June 22 and October 21, 1970, by International Printing Pressmen and Assistants Union of North America, St. Louis Web Printing Pressmen and Flymen's Local No. 38, AFL-CIO (herein called Local 38) a complaint, dated February 10, 1971, was issued alleging that the Respondent, Belleville News Democrat, Inc., herein called the Company , has engaged and is engaging in unfair labor practices within the meaning of Section 8(a)(1), (2), (3), and (5) of the National Labor Relations Act, as amended. Respondent filed an answer generally denying that it has engaged in the alleged unfair labor practices. A hearing in this proceeding was held in St. Louis, Missouri, on April 13 and June 17, 1971. General Counsel and Respondent filed briefs which have been carefully considered. Upon the entire record in this case,' I make the following: FINDINGS OF FACT I THE BUSINESS OF RESPONDENT Belleville News Democrat, Inc., an Illinois corporation, is engaged in the publication of a daily newspaper which is distributed in the Belleville, Illinois, area. Respondent derives gross revenue in excess of $200,000 annually from its business operations. In the conduct thereof Respondent subscribes to interstate news services, publishes nationally syndicated fea- tures, and advertises nationally sold products. Respondent admits, and I find, that it is an employer engaged in com- I Absent opposition, Respondent's motion, dated August 18, 1971, to correct the transcript of record is granted merce within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATIONS INVOLVED Local 38, and International Printing Pressmen and Assist- ants Union of North America, Belleville Printing Pressmen's Union No. 113, AFL-CIO (herein called Local 113), are labor organizations within the meaning of the Act. III THE PLEADINGS For a period of about 30 years the Company was a member of Belleville Employing Printers (herein called the Associa- tion), an association of employers which exists for the pur- pose of conducting collective -bargaining negotiations on be- half of its members with Local 113 and with another labor organization (International Typographical Union, Local 74, AFL-CIO). On January 21, 1959, a Certification of Repre- sentatives was issued in Case 14-RC-3424 certifying Local 113 as the bargaining representative of "all letterpress, gra- vure, and newspaper pressmen, and apprentices and helpers" employed by the employer members of the Association. In February 1970, despite a subsisting contract between the Company and Local 113 concerning the terms and conditions of their employment, the pressmen working for Respondent designated Local 38 as their representative and that organiza- tion made demand upon the Company for recognition. Re- spondent refused to recognize Local 39 on the ground that the Company was party to a collective-bargaining agreement with Local 113. On February 18, 1970, Local 38 filed a peti- tion for Certification of Representative with respect to Re- spondent's pressroom employees. On April 30, 1970, while the representation proceeding initiated by said petition was pending, the collective-bargaining agreement between the members of the Association and Local 113 expired. The As- sociation contract was renewed as of May 1 pursuant to negotiations conducted on a multiemployer basis. Despite the pendency of the representation proceeding, Respondent took the position that its employees were part of the multiem- ployer bargaining unit and on May 1 announced to its em- ployees that it was placing into effect the terms of the renewal agreement between the Association and Local 113. On May 6, 1970, the Regional Director dismissed the representation petition filed by Local 38 on the ground that "the multiem- ployer bargaining unit is appropriate and precludes the estab- lishment of a separate unit of the pressmen of Employer." Local 38 sought review of the decision of the Regional Direc- tor. The request for review was granted on June 24, 1970. Thereafter, on October 13, 1970, the Board issued its Deci- sion on Review in which it reversed the Regional Director's Decision, found that a question exists concerning the repre- sentation of employees of the Company, and directed an elec- tion among the employees in the following unit: All pressmen employees, including apprentices, of the Employer employed in its Belleville, Illinois, plant ex- cluding all other employees, clericals, guards, watch- men, professional , managerial and supervisory person- nel. By reason of the foregoing the complaint alleges that: (1) Respondent has violated Section 8(a)(2) in that since April 22, 1970 (there is no adequate explanation as to why this unfair labor practice is alleged to have begun on April 22), it has engaged in negotiations with Local 113 concerning its pressmen, and since May 1, 1970, it has entered into, maintained in force, and implemented a collective bargaining with Local 113; (2) Commencing on or about October 16, 1970, Respond- ent has violated Section 8(a)(5) of the Act by refusing to bargain collectively with Local 38 as the exclusive representa- tive of its pressmen; 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (3) A strike by Respondent's pressmen which began about May 15, 1970, was an unfair labor practice strike and since June 15, 1970, Respondent has violated Section 8(a)(3) by refusing to reinstate the strikers upon their application for employment on the ground that they had been permanently replaced; and (4) The foregoing also constitute violations of Section 8(a)(1). IV. THE ALLEGED UNFAIR LABOR PRACTICES Related to this case and for the reasons which will be discussed below are the decisions of the Board in two cases decided in 1970 involving both the Respondent and the Charging Party herein. The first is the representation pro- ceeding initiated by Local 38 in Case 14-RC-6376. The Board's Decision on Review is reported at 185 NLRB No. 140. The second is a proceeding alleging violations of Section 8(b)(4)(C) of the Act in which Local 38 is the named Re- spondent and the Company is the Charging Party. The case number is 14-CC-593 and is reported at 187 NLRB No. 57. Respondent as a member of the Belleville Employing Print- ers has been a party to successive collective -bargaining agree- ments with Local 113 (and also with International Typo- graphical Union, Local 74, AFL-CIO). Furthermore, following a Board-conducted election, Local 113 was certified on January 21, 1959, as the collective-bargaining representa- tive of the employees in an appropriate unit described as follows: All letterpress, gravure, and newspaper pressmen, and apprentices and helpers, at the Employers' Belleville, Illinois, plants, excluding all other employees, clerical employees, professional employees, guards and watch- men, and supervisors as defined in the Act.2 In May 1969 the Company's six pressmen, including Fore- man Robert J. Gruenewald, joined Local 38. Subsequently, on February 12 and 13, 1970, the six employees signed an instrument purporting to designate Local 38 as their "sole and exclusive representative for the purposes of collective bargaining with our employer on all matters relating to the terms and conditions of our employment." On February 18, 1970, a letter was written to the Company advising that Local 38 had been designated by a majority of its pressmen as their representative and that the pressroom employees constitute an appropriate bargaining unit. The letter also demanded recognition on behalf of Local 38 and requested the Company to designate a time and place for a negotiating session. Re- spondent did not answer the letter.' On the same day Local 38 filed the representation petition in Case 14-RC-6376. On May 6, 1970, the Regional Director for Region 14 issued a Decision and Order dismissing the petition of Local 38 on the ground that the unit sought by the petitioner, limited to Respondent's pressroom employees, was inappropriate. The Decision specifically found that "the multiemployer bargain- ing unit is appropriate and precludes the establishment of a separate unit of the pressmen of Employer." While the representation proceeding was pending the As- sociation was engaged in collective-bargaining negotiations with Local 113. Prior to May 1, 1970, the Association and Local 113 reached agreement on all revisions to their subsist- ing contract which was due to expire on April 30, with the exception of the pension program. With respect to the pen- sion program the amount of employer contribution had been agreed upon but the specific method of effectuating the plan had to await certain formal action on the part of the Union. Sometime after May 1, 1970, Local 113 and the Association reached agreement on the pension provisions and reconciled some differences over contract language. About May 1, 1970, Raymond Erwin, who was the spokes- man for the Association in the negotiations with Local 113 (as well as with Local 74), informed Fred Kern, general manager of Respondent, that the revisions to the contract which expired on April 30 were going to be put into effect as of May 1. On that day Fred Kern assembled the Company's pressmen and informed them of the improved wages and other benefits which were being put into effect as the result of the negotiations with Local 113.' After the pressmen dis- cussed the matter among themselves they requested their foreman, Robert Gruenewald, to ask Kern to return. When Kern came back to the pressroom, according to pressman Charles Edwin Yocks, "I told him we couldn't accept this, we didn't belong to 113 we belonged to 38." Kern insisted that he was going to place into effect the terms reached as a result of the negotiations between the Association and Local 113. Later the same day, Gruenewald was called to a meeting with Fred Kern and the latter's father, Robert Kern, editor and publisher of the newspaper. Gruenewald was castigated for having led the pressmen into changing their affiliation from Local 113 to Local 38. He was told that management no longer could trust him with the responsibility of being foreman and that he was being demoted from his position as foreman to a journeyman pressman. Gruenewald responded that in these circumstances he would not continue working for the Corypany and quit his job.' On May 6, 1970, the Regional Director issued his Decision and Order dismissing Local 38's petition in the representation proceeding. The next day, May 7, the executive board of Local 38 voted to strike the Company and this recommenda- tion was approved by the membership of Local 38 at a regular meeting held on May 12. On the morning of May 15 Respondent's pressmen went on strike and Local 38 commenced picketing the Company's plant with signs bearing the legend: NOTICE TO THE PUBLIC Belleville News Democrat has coerced and discriminated against its employees because of their membership in and activities on behalf of St. Louis Web Printing Pressmen and Flymen's Union No. 38. On the day that the picketing began the Company filed unfair labor practice charges with the Board in Case 14-CC- 593 alleging violations of Section 8(b)(4)(C) of the Act. A complaint thereon was issued on June 2. Pursuant to Section 10(1) of the Act a temporary injunction order was entered on June 12, 1970, in the United States District Court for the ' See Belleville Employing Printers. 122 NLRB 350 Although in its decision the Board adverted to the fact that "[t]here is no formal organiza- tion known as Belleville Employing Printers ," it found that there had been "an effective history of multiemployer bargaining" and that the Association, which then was composed of two newspaper publishing companies and four commercial punting concerns , constituted an appropriate multiemployer unit As of 1970 Respondent was the only newspaper publisher still party to the multiemployer bargaining agreement ' I take official notice of the Board's decisions in Cases 185 NLRB No. 140 and 187 NLRB No 57 These decisions contain more detailed recitals of certain of the matter adverted to herein ' Charles Edwin Yocks, one of Respondent's pressmen , testified that Kern informed the employees that "we lust signed a nice contract ... " Kern denied that he told the employees when he met with them on May 1 that the Company had actually signed an agreement. In its Decision in the boycott case the Board found that Kern "announced that a new contract had been reached with Local 113 " ' Among the reasons, if not the principal reason, for the Company's opposition to the change in affiliation of its pressmen from Local 113 to Local 38 was that the wage structure of Local 38 was higher than that of Local 113 BELLEVILLE NEWS DEMOCRAT, INC. 435 Eastern District of Illinois prohibiting Local 38 from engag- ing in the strike against the Company and from picketing the premises of the Company. Following entry of the injunction order, the Company's five striking pressmen, on June 15, offered to return to work. However, the Company refused to reinstate them on the ground that their jobs had been filled by permanent replace- ments.' A hearing in the boycott case was held before a Trial Examiner of the Board on June 29, 1970. On August 11 he issued his Decision finding that Local 38 had not engaged in the alleged unfair labor practices and recommended dismissal of the complaint. This Decision was affirmed by the Board on December 17, 1970. Between the date of the Trial Examiner's Decision and the Board's affirmance, the Board on October 13, 1970, issued its Decision on Review in the representation case reversing the Regional Director's dismissal of the peti- tion filed by Local 38 and directing an election.' More specifi- cally, the Board found in its Decision in the boycott case that the strike was not unlawfully motivated "with an object of compelling recognition and bargaining" with Local 38 but "was called to protest the Belleville News' purported miscon- duct" in relation to Robert Gruenewald.e Picketing was resumed by Local 38 on March 15, 1971, after the temporary injunction was vacated. The Board's Decision in the boycott case is important to this proceeding to the extent that the findings therein deter- mine whether the strike, which began on May 15, was an unfair labor practice strike. The alleged violation of Section 8(a)(3) here depends upon a preliminary finding that the May 15 strike was caused or was prolonged by Respondent's un- fair labor practices. If the only reason for the strike was the termination of Gruenewald then the strike cannot be deemed to have been an unfair labor practice strike because there is no basis for finding that Gruenewald's termination was un- lawful. The Union's original charge herein alleged that such termination was an unfair labor practice but the charge in this respect was dismissed by the Regional Director and the dis- missal was affirmed by the General Counsel.' Respondent argues, in effect, that the object of the May 15 strike was the 6 One of the striking pressmen, Alvoyed J Huber, was reemployed by the Company on November 16, 1970 7 On October 26, 1970, the General Counsel filed a motion with the Board to withdraw his exception to the Trial Examiner's Decision in Case 14-CC-593 and to dismiss the complaint This action was prompted by the Board's Decision on Review in the representation proceeding I read the term "purported misconduct" as used by the Board in its Decision to refer to the termination of Robert Gruenewald Thus, in its Decision, the Board states "The Belleville News Pressmen attended (the Executive Board meeting held on May 7, 1970), described what had hap- pened, and 'stated their position that they wanted to take a strike vote because they felt they did not want the same thing to happen to them that happened to Brother Gruenewald ' I therefore find that the unanimous strike vote, taken at that special meeting, was provoked by the Belleville's asserted misconduct, not by the dismissal of the petition (by the Regional Director in Case 14-RC-6376) " No other alleged "misconduct" which lawfully might have been an object of the strike is discussed in the Board's Decision Nowhere in its Decision does the Board find that the facts alleged in para- graph numbered 5 of the complaint in the instant case were causes for the strike or for prolonging the strike ' The General Counsel's decision on appeal, dated April 1, 1971, is as follows "The appeal is denied For substantially the reasons set forth in the Regional Director's dismissal letter dated February 3, 1971, insufficient basis existed for a finding that the Company's conduct toward Gruenewald was unlawful Even assuming that the events of May 1 provided a basis for finding Gruenewald's quit to be a constructive discharge (compare Walker Electric Company, 142 NLRB 1214, 1215), in view of his supervisory status, at the time of the union activities in question, it could not be held that his discharge violated the Act Gibbs Automatic Division, Pierce Industries, Inc., 129 NLRB 196, 198 " principal issue in the boycott case, the Board found that the strike was caused only by Gruenewald' s termination, and this finding, therefore, determines the Section 8(a)(3) question in the instant case. The complaint, however, alleges not that the strike was caused by Gruenewald's termination but that the strike was caused by the Company's negotiations with Local 113 and by the fact that the Company placed into effect the terms of the purported collective-bargaining agreement with Local 113 on May 1, 1970. The theory of the complaint is that such conduct constitutes a violation of the Act under the Midwest Piping doctrine" because of the pendency of the representation proceeding in Case 14-RC-6376." THE ISSUES This case poses several novel questions. First, what effect should be attributed to the Regional Director's decision dur- ing the period between May 6 when it was issued, and Octo- ber 13 when it was reversed by the Board in its Decision on Review." If the Board had affirmed the Regional Director, instead of having reversed him, the complaint herein would completely fail. There then would not have been the alleged unlawful assistance to Local 113. Under the Regional Direc- tor's decision the Company was obliged to deal with Local 113 as the certified representative of its pressmen. In conse- quence, the strike could not have assumed the character of an unfair labor practice strike because between the period of May 15 and June 15 there would have been no unfair labor practices attributable to the company. Also, there could not have been any violation of Section 8(a)(5) of the Act based upon Respondent's refusal to recognize Local 38 because the Regional Director found that Local 113 continued as the representative of the Company's pressmen. The gravamen of the complaint is that the Board's Deci- sion on Review has some, but not complete, retroactive ap- plication. Thus, the complaint alleges that the unlawful as- sistance rendered Local 113 by the Company continued during the period that the Regional Director's decision of May 6 was extant as well as after October 13, 1970, when it was reversed by the Board. Similarly, the complaint alleges that the strike, which began on May 15, was caused and was prolonged by such unlawful assistance and therefore Re- spondent's refusal to reinstate the pressmen who are alleged to be unfair labor practice strikers is a violation of Section 8(a)(3). However, as to the alleged 8(a)(5) violation arising out of the Company's refusal to recognize Local 38, the com- plaint avers that this unfair labor practice did not commence until after the issuance of the Board's Decision on Review in the representation proceeding on October 13. Thus, with re- spect to the alleged 8(a)(5) violation the Decision on Review is not given retroactive application and the General Counsel asserts that no violation of Section 8(a)(5) is deemed to have taken place prior to the date on which it was issued. Thus, a second question is whether, the complaint pleads a valid violation of Section 8(a)(5). The issue arises from the fact that all the elements necessary to constitute a prima facie violation of Section 8(a)(5) took place well before October 1970. The significance of the October 16 date pleaded in the complaint is that it follows the issuance by the Board of its Decision on Review in the representation proceeding. Is that factor alone 10 Midwest Piping & Supply Co, 63 NLRB 1060 11 The alleged violation was established nunc pro tunc after the Board's Decision on Review was issued on October 13, 1970 13 In his brief General Counsel states that "The Regional Director's Deci- sion and Order of May 6 was an interim finding, clearly not a final determin- ation." This assertion completely ignores Section 102 67(b) of the Rules and Regulations and Section 3(b) of the Act as they relate to the delegation of authority to Regional Directors. 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sufficient to affect the date on which the alleged violation of Section 8(a)(5) began? 13 A third issue is whether there is an estoppel which bars a finding by the Board in this case that the strike which began on May 15, 1970, was an unfair labor practice strike. In the boycott case the Board found that the strike was not for "an object of compelling recognition and bargaining" by the Company with Local 38." Two questions arise: (1) whether by virtue of the doctrine of collateral estoppel the finding by the Board in the boycott case relative to the cause of the May 15 strike should be adopted in this case, regardless of whether evidence offered in the instant case might lead to a different conclusion; and (2) under the doctrine of judicial estoppel whether the position taken by Local 38 in the boycott case as to the reasons for the May 15 strike and the testimony given in said case on behalf of Local 38 estops the Board from accepting testimony offered in the instant case by witnesses who also testified on behalf of Local 38 in the boycott case to the extent that such testimony enlarges upon or conflicts with their prior testimony. Respondent in its brief poses the following additional is- sues: (a) General Counsel has failed to prove a prima facie viola- tion of Section 8(a)(5) of the Act because he has offered no evidence to establish that the collective-bargaining unit de- scribed in the complaint is an appropriate unit. Respondent argues that General Counsel cannot rely upon the Board's decision in Case l4-RC-6376 because no certification of rep- resentative has been issued therein; (b) The alleged majority of Local 38 is tainted because of the activity of a supervisory employee, Robert Gruenewald, and certain described conduct by Local 38; (c) The alleged unfair labor strikers have obtained other regular and substantially equivalent employment and, there- fore, pursuant to Section 2(3) of the Act, have lost their status as employees of the Company; and (d) The Company did not engage in negotiations with Lo- cal 113 prior to May 1, 1970, and did not enter into any agreement with Local 113 on May 1, 1970. " In light of the limitations provision of Section 10(b) of the Act this is not an academic question " General Counsel and Charging Party, in effect, argue that the objects of the strike were twofold- One, to protest the termination of Robert Gruenewald and, two, to protest the Company's continued recognition of and dealing with Local 113 while the representation proceeding filed by Local 38 was pending. To the extent that the latter object motivated the strike, the strike is alleged to be an unfair labor practice strike They main- tain further that neither the striking employees nor Local 38 had as an object of the strike an effort to compel Respondent to recognize Local 38 as the representative of its pressmen In the circumstances present here such con- tention is difficult to accept. This case arises from the effort on the part of Respondent's pressmen to transfer their affiliation from one local to another local of the same International union Thus, on May 1, Charles Edwin Yocks, who is chapel chairman and a member of the executive board of Local 38 told Fred Kern that "we couldn't accept this [the terms negotiated with Local 113], we didn't belong to 113 we belonged to 38 " Faced with Respondent's immovableness, Yocks consulted Local 38's attorney who "told me we could go ahead and accept " It would be unrealistic to infer that Respondent's pressmen wanted no union representation in prefer- ence to representation by Local 113 A more realistic inference to be drawn from the America, Belleville circumstances is that if the pressmen struck to protest the Company's continued dealing with Local 113, they, at the same time, were seeking to compel the Company to recognize Local 38 as their representative Accordingly, the contention that the strike was caused by the Company's continued recognition of and dealing with Local 113 should carry with it as a corollary that the strike also was for the purpose of compelling the Company to recognize Local 38 Conclusions The Midwest Piping doctrine is intended to implement the Act's objective of assuring employees the right to select "rep- resentatives of their own choosing." It prohibits an employer faced with conflicting claims from according such treatment to one of the rivals as will give it an improper advantage or disadvantage in its contest for the employees' favor. In es- sence, the doctrine is that once the contest between rival labor organizations has begun and the Board's processes have been invoked by the filing of a representation petition, the em- ployer is deemed to have interfered with his employees' statu- tory rights if he undertakes to resolve the question concerning representation by voluntarily extending recognition to and bargaining with one of the competing unions. As stated in Retail Clerks Union, Local 770 v. N.L.R.B., 370 F.2d 205, 207 (C.A. 9): ... an employer faced with conflicting claims of two or more rival unions which give rise to a real question concerning representation may not recognize or enter into a contract with one of these unions until its right to be recognized has finally been determined under the spe- cial procedures provided in the Act. However, as in other situations arising under the Act, the application of this principle conflicts with another and equally important statutory objective, namely, that of en- couraging stable and uninterrupted collective-bargaining re- lationships. Thus, early after the issuance of its Midwest Pip- ing decision the Board stated with respect to the principle enunciated therein that the doctrine, "necessary though it is to protect freedom of choice in certain situations, can easily operate in derogation of the practice of continuous collective bargaining, and should, therefore, be strictly construed and sparingly applied."" The tension that develops when a labor organization seeks to displace an incumbent union which enjoys a contractual relationship with the employer has been the source of recurring problems to the Board and to the courts.16 The rule which the Board currently applies in such cases was iterated in Shea Chemical Corporation, 121 NLRB 1027, 1029, as follows: We now hold that upon presentation of a rival or con- flicting 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 represen- tation has been settled by the Board. This is not to say that the employer must give an undue advantage to the rival union by refusing to permit the incumbent union to continue administering its contract or processing griev- ances through its stewards .... However, we wish to make it clear that the Midwest Piping doctrine does not apply in situations where, because of contract bar or certification year or inappropriate unit or any other es- tablished reason, the rival claim and petition does not raise a real representation question. The instant case presents two factual variations which previously have not been before the Board in connection with the application of the Midwest Piping doctrine. First, the Respondent did not itself engage in collective-bargaining negotiations with Local 113 after Local 38 had filed its repre- sentation petition. The Association, as perforce it was re- quired to do under the Act, bargained with Local 113 on behalf of its membership and arrived at an understanding which its members put into effect on May 1. Thus, if the Company continued as a member of the Association its fail- " Ensher, Alexander & Barsoom, Inc, 74 NLRB 1443, 1445 ' See Peter Paul, Inc, 185 NLRB No 64, and the cases there cited BELLEVILLE NEWS DEMOCRAT, INC ure to observe the terms of the renewal agreement would have been a violation not only of its obligations under the contract but also under the provisions of the Act. There was no practi- cal action which the Company might have taken to suspend the negotiations between the Association and Local 113 pending resolution by the Board of the representation ques- tion sought to be raised by Local 38's petition. The Company could not sensibly maintain its legal position that the unit requested by Local 38 in its petition was inappropriate and simultaneously refuse to recognize its continuing obligations as a member of the multiemployer unit which the Company contended was the only appropriate unit." Second, initially the Regional Director sustained the Company's decision re- garding the appropriate unit and dismissed the petition which Local 38 had filed. The argument, nevertheless, is made by General Counsel that the Company acted at its peril by con- tinuing to deal with Local 113 not only on May 1, when it put into effect the economic provisions of the renewal agree- ment with Local 113, but also while the appeal from the Regional Director's decision was pending. General Counsel's position is that during the entire period from April 30, when its contract with Local 113 expired, until at least October 13, when the Board issued its Decision on Review reversing the Regional Director, the Company was in the unenviable posi- tion of having correctly to determine for itself the appropriate unit issue pending before the Board in the representation proceeding. This placed the Company in a "damned if you do, damned if you don't" position." If the unit requested in the petition filed by Local 38 ultimately were held to be inappropriate the Company might be accused of breach of contract and of unfair labor practices for having refused to observe the terms of the agreement with Local 113 which became effective on May 1. On the other hand, if the Com- pany, as it did, placed into effect the economic provisions of the renewal agreement between the Association and Local " General Counsel seeks to equate the facts herein with those in cases such as Shea Chemical Corporation, supra, and Allied Food Distributors, Inc., 169 NLRB 793 In addition to the fact that analogies tend to be misleading, in my opinion, the equation suggested by General Counsel is inapposite. Perhaps a better comparison would be the following An employer and a union are parties to a five-year agreement which provides for annual wage increases At an appropriate time towards the end of the third year of the contract a rival labor organization files a representation petition While the proceeding initiated thereby is pend- ing, a wage increase becomes due under the terms of the subsisting contract which the employer gives to the employees In these circum- stances would the employer's conduct violate the Midwest Piping doc- trine9 In my opinion the hypothetical case is closer to the instant proceeding than the facts in the Shea Chemical Corporation or the Allied Food Distributors, Inc, case adverted to by General Counsel J J Newberry Co., Inc v NL.R B, 442 F 2d 897 (C A 2) 437 113, and the unit requested by Local 38 in the representation petition ultimately was found by the Board to be appropriate, as was the case, then, as did happen, the Company was in jeopardy of being charged with unfair labor practices. The theory of the General Counsel is that the Company had to guess correctly not only what the Regional Director's initial ruling would be but also whether it would be sustained or reversed by the Board upon appeal. A question of policy arises as to whether it would effectuate the objectives of the Act to penalize Respondent in an unfair labor practice pro- ceeding for having failed correctly to anticipate the Board's ultimate decision in the antecedent representation proceed- ing, particularly where only 5 days after it had acted the Regional Director handed down a favorable decision which was the law of the case until reversed more than 5 months later. (General Counsel does not contend that the Company has taken any action since October 13, 1970, which is incon- sistent with the Board's Decision on Review.) I have considered the arguments advanced by counsel and have considered in addition other possible contentions which could affect the decision herein. There is no rationale which appears to me as clearly correct. Any decision involves con- flicts among equally compelling considerations. This case contains a combination of unusual circumstances which exac- erbate an already complex and troublesome legal area. Be- cause of this I believe the instant case should not be consid- ered as a precedent of general application but that the decision should be limited to the uncommon conjunction of facts here present which are not likely to arise again. It is my conclusion that Respondent has not violated the Act. On the facts in this case I find that prior to October 13, 1970, when the Board issued its Decision on Review, the Respondent lawfully was entitled to continue, at least to the extent that it did, its dealings with and its recognition of Local 113 and that it was not then under any legal duty to recognize Local 38 as the collective-bargaining representative of its press- men 19 In view of this finding it is unnecessary to consider the other legal questions adverted to above and I shall recom- mend that the complaint herein be dismissed in its entirety. CONCLUSIONS OF LAW General Counsel has failed to prove that the Respondent has violated the Act as alleged in the complaint. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended- ORDER The complaint is dismissed in its entirety " See Modern Plastics Corporation, 155 NLRB 1126, 1138