Gulf & Western Manufacturing Co.

696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Taylor Forge Division; Gulf & Western Manufacturing Co. and International Brotherhood of Boilermak- ers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO Forge and Machine Workers' Industrial Union and International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO. Cases 13-CA-14930, 13-RC-13640, and 13-CB-6405 January 4, 1977 All production and maintenance employees em- ployed by the Employer at its present location at 4735 W. 14th St., Cicero, Illinois, but excluding salesmen, office employees, technical employees, .professional employees , and guards and supervi- sors as defined in the Act. 1 The Respondent Employer has requested oral argument . This request is hereby denied as the record, the exceptions, and the briefs adequately present the issues and the positions of the parties. DECISION STATEMENT OF THE CASE DECISION AND ORDER AND SUPPLEMENTAL DECISION AND CERTIFICATION OF REPRESENTATIVE BY MEMBERS FANNING, JENKINS, AND PENELLO On September 3, 1976, Administrative Law Judge Marion C. Ladwig issued the attached Decision in this proceeding. Thereafter, the General Counsel and Charging Party filed exceptions and supporting briefs, and the Respondent Employer and Union, Forge and Machine Workers' Industrial Union, filed answering briefs.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. CERTIFICATION OF REPRESENTATIVE It is hereby certified that a majority of the valid ballots have been cast and Forge and Machine Workers' Industrial Union and that, pursuant to Section 9(a) of the National Labor Relations Act, as amended, the said labor organization is the exclusive representative of all the employees in the unit found appropriate herein for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment: 227 NLRB No. 112 MARION C. LADwio, Administrative Law Judge: These -consolidated cases were heard at Chicago, Illinois, on May 10-14, and June 8-9, 1976. The charges were filed by the Boilermakers against the Company on December 3 and against the Independent Union on December 5, 1975.1 The complaint was issued on February 6, 1976, together with an order consolidating the complaint cases with the represen- tation case in which the Board on January 7, 1976, issued a decision in 221 NLRB 1341, overruling Petitioner Boiler- makers Objections 4 and 5 and ordering a hearing on Objections 1(b) and (c). The complaint cases arose when the Company and the Independent-following the Independent's defeat of the Boilermakers in an election on March 20 by a vote of 386 to 161-proceeded to negotiate and execute a renewal of their collective-bargaining agreement, notwithstanding the Boil- ermakers pending objections to the election. The primary issues are whether the election should be set aside on the basis of one or more of the objections and, if not, whether (a) the Board's "at-its-peril" doctrine should be extended to this fact situation to permit the resumption of negotiations between the Company and the Independent after the election-upon the risk of committing unfair labor practices if the election is found invalid-or (b) the Company violated Section 8(axl), (2), and (3) and the Independent, 8(b)(1)(A) and (2) of the National Labor Relations Act, by negotiating, executing, and implementing the agreement before the Board determines the validity of the election. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel, Company, Indepen- dent, and Boilermakers, I make the following: FINDINGS OF FACT 1. JURISDICTION Respondent Company is a division of Gulf & Western Manufacturing Co., a Delaware corporation, and is en- gaged in the manufacture of large-diameter pipe and fittings for piping systems at its plant in Cicero, Illinois, where it annually receives goods valued in excess of $50,000 directly from outside the State. The Company and Indepen- dent admit, and I fmd, that the Company is an employer 1 All dates are in 1975 unless otherwise stated TAYLOR FORGE DIVISION, GULF & WESTERN 697 engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that the Independent and Boiler- makers are labor organizations within the meaning of Section 2(5) of the Act. II. REPRESENTATION PROCEEDING A. Background The production and maintenance employees at the Cicero plant have been represented by the Independent for over 35 years. The most recent collective-bargaining agreement, negotiated in 1972, was to expire on April 30. The Boilermakers filed a petition for an election on February 18; the Company, Independent, and Boilermak- ers executed a stipulated consent agreement on March 3; and the Independent won the election by a vote of 386 to 161 on March 20. The Boilermakers filed timely objections on March 26. On September 18 (nearly 6 months later), the Regional Director issued his report on objections. Citing the facts that the Independent's pension plan was a critical issue in the election campaign (that 363 of the unit employees had 20 or more years of service, that 310 of them were 55 years of age or older with over 15 years of service, and that almost 60 percent of the employees were currently eligible for some type of pension benefit and therefore directly affected by the issue of pensions), the Regional Director recommended that the election be set aside on the basis of both Objection 4 (concerning the Independent's campaign literature re- gardmg pension reporting and assets) and Objection 5 (concerning the Independent's belated misrepresentation that Boilermaker-represented employees at a plant in Gary, Indiana, had lost their pensions). In the alternative, the Regional Director found that a hearing should be held on Objections 4 and 5, as well as Objections 1(b) and (c). On January 7, 1976, the Board overruled Objections 4 and 5 without a hearing and ordered a hearing to be held on Objections 1(b) and (c), discussed below. At the hearing of the consolidated cases, the Boilermak- ers moved for reconsideration of Objections 4 and 5, indicating that it was doing so "for the record" because "this matter could go to court ultimately." I denied the motion. B. Objection 1(b) In this objection, the Boilermakers alleged that the Independent posted election materials on plant bulletin boards in violation of a clause in its contract prohibiting such use of the bulletin boards. During the election campaign , both the Boilermakers and the Independent passed out much election material (called pluggers) at the entrances to employees on the three shifts as they entered or left the plant. There is conflicting evidence concerning whether the Independent also placed some of its campaign material (apart from notices and other permitted items) on any of its 24 union bulletin boards which are located throughout the large, 24-acre plant. Luis Tayleor, an employee organizer for the Boilermakers (who impressed me most favorably as an honest, forthright witness-although discharged by the Company), credibly testified that in early March he saw a former Independent officer, employee Steve Wolfranski, standing by the union bulletin board in Department C-4 where Tayleor worked. Tayleor complained to Wolfranski about a piece of Independent campaign literature which had been posted on the board and proceeded to post alongside it a piece of Boilermaker literature which was being distributed at the plant entrances that morning. Wolfranski removed the Boilermaker literature, and Tayleor in turn removed the Independent literature. The evidence does not disclose who had posted the Independent literature, when it was posted, or whether any other employee or supervisor had observed the posted campaign material. Employee Tayleor also credibly testified that on March 11 he saw Independent Treasurer Casimir "Bozo" Szczudlo posting Independent's March 11 plugger (in answer to the "3-10-75 plugger from the "Boiler-Boys' ") on the C-4 union bulletin board. He later saw his forman, Charles Ahrendt, reading the plugger on the board (although Ahrendt did not recall this), and also saw it posted on the union bulletin boards in C-1, C-2, and at the main entrance. The material was not only distributed at the entrances that morning, but was put at each place setting in the lunchroom that day. (Tayleor definitely recalled that this March 11 literature was the one posted because "we were joking with [Szczudlo ] about the American way of life and apple-pie bit at the bottom." I note that under the name of the Independent, the March I1 literature reads: "P.S. Beware ! The next desperate scare plugger from the Boiler-Boys may try to shake your faith in the American way of life, apple pie, or even Santa Claus!") Although Tayleor initially recalled that he was absent from work on March 11, his birthday (a floating holiday), the payroll records show that he was absent instead on March 12 for the holiday. Szczudlo denied at the hearing that he had posted any of the so-called pluggers. However, in his June 11 prehearing affidavit, he stated, "Some of the notices which I posted on the Union bulletin boards in the plant were Independent's position on issues in the election cam- paign in response to statements made by the Boilermakers," despite the later statement, in the same affidavit, that he did not post any pluggers , "only matters pertaining to internal union affairs." (Emphasis supplied.) (Szczudlo, as well as Recording Secretary Peter Cipriano, whose testimony is discussed later, impressed me most unfavorably as witness- es.) Employee Tayleor credibly testified further that he saw Independent's March 14 plugger posted in his Department C-4 and the main entrance. Finally, on election day (March 20), Tayleor saw two pieces of Independent's literature (a vote-for-the-Independent card and a half-page plugger dated March 19 , involving the pension plan) posted on the union bulletin boards in C-1, C-4, and at the main entrance. (As an employee organizer, Tayleor was looking for any violations of the provision in the collective-bargain- ing'agreement, prohibiting such postings. He testified that he ,almost got fired during this time , "Walking through areas other than my own during lunch period and break- time.") Boilermakers International Representative Robert Miller received several complaints about such postings, and on one occasion a questionable notice was removed from 698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the front union bulletin board after Miller complained to Personnel .Manager Charles Gaul about it. Company officials checked the bulletin boards to see if there were any posting violations. Thus, the credited evidence shows only a few instances in which Independent's campaign material was posted on any of the union bulletin boards . Although these few violations of the agreement did occur, there is no showing that these postings would tend to have any impact on the election. The same literature was given personally to virtually all the employees as they entered or left the plant; the literature was taken into the plant and discussed by the employees; and it was often seen on the floor, desks, and benches, and in the lunchroom. Accordingly, I find that the Boilermakers failed to prove that the posting of some of Independent's election material in violation of the collective-bargaining agreement had any impact on the outcome of the election. I therefore overrule Objection 1(b). C. Objection 1(c) In this objection, the Boilermakers alleged that the Independent was allowed to campaign in the plant on working time, while the Boilermakers were denied access to the plant. During the election campaign, Independent officials (all company employees) were given access to the plant (as before) to contact employees during working time in order to investigate and handle grievances, to engage in a job evaluation program begun several months earlier, and to engage in other union business under the collective-bar- gaining agreement. Nonemployee Boilermakers officials were denied access to the plant . The questions are whether the Company permitted the Independent to abuse its contractual visitation rights and campaign on working time, and whether this interfered with the election. Early in the campaign, the Company instructed its foremen to remain neutral, and not to permit employees to congregate and discuss the election during working time. The employees were permitted to, and did , discuss the campaign issues and the pros and cons of the two unions before work, during breaks, and at lunchtime. On one occasion, about the second week in March, Recording Secretary Cipriano began talking to several employees in Department K during working time. When employee Ned Miltonberg (a Boilermakers organizer) walked up, he heard Cipriano telling the employees in the group that the Independent is "the best damn union in the world." Miltonberg and Cipriano then engaged in an argument about the two unions, as other employees listened, without any intervention by the foremen who were working elsewhere in the area. (As credibly testified by Miltonberg, Cipriano argued that "you can't trust the Boilermakers ... because the Boilermakers destroyed the union at the Taylor Forge plant in Gary, Indiana." Cipriano was thereby referring to the purported loss of employee pensions at the Gary plant-the issue involved in Boilermakers Objection 5.) The discussion lasted about 10 or 15 minutes before Cipriano left. A foreman later directed the employees to return to work. (Only Miltonberg and Cipriano testified about what was said . None of the other employees was called to testify . I discredit Cipriano's claim that Miltonberg started the conversation about the two unions. Miltonberg appeared on the stand to be the more credible witness.) Although the foremen did not enforce the no-congregating-no-talking rule on this occasion, I find that the partisan discussion did not interfere with the election. The remaining instances of alleged violations of the rule by Independent's officers were given by employee organiz- er, Tayleor. None of the parties called any other employee witnesses, except Independent officials. About March 3, shortly before the 7 a.m. shift began, several employees were waiting in the C-1 foreman's office. Independent President George Oostdyk entered the office and began discussing a safety problem with Foremen James Mucha and Danny Gibson. When employee Tayleor entered, as he credibly testified, he saw that Oostdyk had a copy of the Independent agreement with the Company in his hand, and a copy of the Boilermakers agreement with Kropp Forge Company (at a nearby plant) on the table. Oostdyk immediately stopped talking and Tayleor (who had not heard any of the conversation) said to him, "No use in hiding it. I know what you're doing." Oostdyk laughed and Tayleor left the office . (I discredit the denials that Oostdyk and the foremen were looking at copies of the two contracts.) However, this occurred during nonworking time-before the shift began-and therefore did not involve the Independent campaigning on working time. Also in early March, after employees Tayleor and Wolfranski removed campaign literature from a union bulletin board (as discussed above), the two employees went into the foremen's office where several other employ- ees were waiting for the 205 rolling mill to be repaired. Forman Mucha came in, used the telephone, and heard the employees discussing the pros and cons of the two unions while looking at the campaign literature which the employ- ees had brought into the plant. After getting off the phone, as Tayleor credibly testified, Mucha commented that the Boilermakers got the Company's Gary plant shut down, that the employees there lost their pension, and "if we brought them in" this plant, the same thing would happen here. (Mucha admitted the incident, but testified, "I don't recall saying that" I discredit the denial.) Except for the comment by Mucha, this incident merely involved employ- ees discussing the pros and cons of the two unions, during a plant breakdown. The foremen's remark about the loss of pensions would be material, not to Objection 1(c) but to Objection 5 which the Board has already overruled. (The statement also indicated to the employees the Company's preference for the Independent in the election.) About March 7, Independent Treasurer Szczudlo went to the electrical department to check out a Kropp Forge want ad which somebody had posted on the wall. (Electricians were concerned about the higher wage rate in the ,Boiler- makers contract at the nearby plant.) While Szczudlo was there, talking to four of the electricians (including employee Eugene DiAngelo-not Foreman Angelo _Abluton), em- ployee Tayleor came by to report a crane malfunction. He did not hear what Szczudlo was saying, but he saw Szczudlo talking with the electricians and comparing the Indepen- dent contract with the Boilermakers Kropp Forge contract. TAYLOR FORGE DIVISION, GULF & WESTERN 699 Tayleor merely commented, "You know you are wrong," and left. (Szczudlo admitted that he had a company contract, but denied having a Kropp Forge contract. I discredit his denials.) There was no forman in sight, and no evidence that the Independent was being allowed to campaign on working time. Finally, on election day, between the morning and afternoon voting sessions, employee Tayleor observed Independent President Oostdyk take some papers from a manila envelope and -walk through Department D-1, "leafing through the pages with employees as he walked through." Then at the north end of D-1, Oostdyk "had a congregation of about 5 or 6 guys around him." Tayleor was not in a position to observe whether any foreman was in the area. Later, in the front office, Tayleor saw that the papers in the envelope were the "1973, 1974 pension and welfare program that they were supposed to file with the Federal Government." (These were documents involved in Boilermakers Objection 4. I discredit Oostdyk's denials.) Again, in. the absence of evidence that the conduct was observed by supervision, there was no proof that the Company was allowing the Independent to campaign during working time. Thus, the Boilermakers has proved only isolated instanc- es of the Independent campaigning during working time, and no instance of the Company approving or condoning such conduct. Because of open campaigning-by both sides-before work, at breaks, and at lunch, I fmd that these few instances of the Independent campaigning during working time had no real impact on the election. I therefore overrule Boilermakers Objections 1(b) and (c). Accordingly, I fmd that there is no basis (apart from Independent's conduct involving pensions in Objections 4 and 5, which the Board has already overruled) for setting aside, the March 20 -election, and that the Independent should be certified as the exclusive representative of the employees in the stipulated appropriate unit: All produc- tion and maintenance employees employed by the Employ- er at its present location at 4735 West 14th Street, Cicero, Illinois, but excluding salesmen, office employees, technical employees, professional employees, guards and supervisors as defined in the Act. III. ALLEGED UNFAIR LABOR PRACTICES A. Negotiations While Objections Pending On the night of the March 20 election, after the votes were counted (386 for the Independent, 161 for the Boilermakers, 6 against representation, and 3 challenged ballots, totaling 556 votes), the Company and Independent immediately agreed to meet the following day, March 21, to begin negotiations-without waiting to see if objections would be filed, and without awaiting certification. The Boilermakers objections were timely filed on March 26. The Company and Independent continued their negotiations, which had been delayed about 3 weeks by the election, in an effort to reach an agreement by the time their 1972-75 contract expired on April 30. The Independent had followed a no-contract, no-work policy in the past. , The Company and Independent failed to reach an agreement, and the Independent went on strike from May 1 until a memorandum of agreement was signed on June 13. The employees returned to work on June 16. The new contract, extending from May 1 through April 30,1978, was signed on July 2 and has been enforced since then. It contains a 30-day union-shop provision. (At the hearing, over the objection of the Boilermakers, the Company was permitted to testify about previous strike actions for the purpose-as stated by counsel-of showing that the Inde- pendent "is not a sweetheart union but is a full-fledged union." Thereafter, I -injected evidence offered by the Company and Independent concerning details of the May 1 strike and of employee support of the Independent after the Company negotiated with the Independent as the exclusive bargaining representative, despite the pending objections to the election. Whether the strike was a "real" and "no a, if you will, sweetheart strike"-as phrased by company counsel-is not in issue. Evidence of employee support, following the Company's resumption of "business as usual" with the Independent, does not establish employee prefer- ence.) The consolidated complaint alleges that the Company gave unlawful assistance to, and encouraged membership in, the Independent by negotiationg, executing, and imple- menting the 1975-78 agreement (containing the union- security clause) with the Independent "during the pendency of a question concerning representation," in violation of Section 8(a)(1), (2), and (3) of the Act. The complaint also alleges that the Independent, through its participation, violated Section 8(b)(1)(A) and (2) of the Act. B. Contentions of the Parties The General Counsel and the Boilermakers treat this case as merely an application of the Board's Midwest Piping doctrine. Midwest Piping and Supply Co., Inc., 63 NLRB 1060, 1070 (1945). In that case, in which "there existed a real question concerning the representation of the employ- ees," the Board ruled that an employer could not negotiate a contract with one of two rival unions "until its right to be recognized as the collective bargaining representative had been finally determined under the procedure set up under the Act." (Emphasis supplied.) The Company and Indepen- dent contend that-the Midwest Piping doctrine is inapplica- ble because, in view of the Independent's overwhelming (over 2-to- l-) victory in the March 20 election, there is no real question of representation. - The General Counsel argues that the question of whether an uncoerced majority of the employees desire to be represented by a particular union must be determined by the Board, which has been specifically designated by Congress for that purpose. To allow the Company and Independent, "whose interests are clearly at stake," to make that determination would be "the most blatant form of self- help" and would "set dangerous precedent," infri nging upon the -right of employees to choose their own bargaining representative. The Company, through testimony of one of its lawyers, Vice President Edward Klopfenstein, argued that its decision to resume "business as,usual" with the Independent was justified because (1) the employees voted by over 2-to-1 for the Independent; (2) the "campaign was a clean one" and "We didn't view a real question of representation to exist"; (3) refusing to negotiate after the 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD election would have aggravated our "long past relation- ship" with the Independent; (4) the employees, expecting wage increases in a new contract, would regard' a delay in negotiations as an attempt by the Company "to get out cheaper" through a "legal loophole"; (5) any prolonged delay would nullify the progress already made in the job- evaluation program; (6) there were around 200 pending grievances in the plant, and any attempt to run this large plant without a grievance procedure "would be literally chaos or the law ofthe,jungle"; and (7) there was a backlog of work in the plant, and "We just could not tolerate" an unstable relationship in the plant for the "2 years or so" it could take the Board to resolve the matter: "We had to have stability in the work force in order to get our products out the door and to protect the interest of our stockholders and employees themselves." The Boilermakers contends that the Company and Independent simply relegated to themselves the determination as to who was the proper representative of the employees, and in view of the immediate decision after the election to proceed with negotiations, these "matters raised by the Company through its attorney's testimony at the unfair labor practice hearing are apparent afterthoughts to justify its position to flout the law." The General Counsel contends that even if the pending objections have no merit, the Board should not permit bargaining until it, as the impartial government agency, determines the validity of the election-although conceding that in such a situation, "the issues become more difficult." The General Counsel argues that "If it becomes the practice of parties to engage in negotiations during the pendency of objections, the interest of employees to be represented will, in the long run, be delayed where a re-run election is ordered, due to complicated unfair labor practice cases involving dues reimbursement, withdrawal of recognition and other remedies. Further . . . the chances of holding a free and uncoerced re-run election after the signing of a contract are, in the opinion of General Counsel, dimin- ished. . . . To permit parties to bargain before the Board makes that determination, even if the Board ultimately overrules the objections, would create chaos and further delay." Similarly, the Boilermakers argues that "there is no remedy to rectify a Company's improved benefits for one labor organization at a time when another is seeking to represent its employees.... [T]he Board must not relin- quish its statutory role leaving it to the whim of the parties to enforce the statutory mandate, but must prohibit now as it has in the past the improper activities of the Respon- dents:'-The Company, on the other hand, at least implies that it should be permitted, "at, its peril," to deal with the Independent pending the Board's resolution .of the Boiler- makers objections. It cites International Ladies' Garment Workers' Union AFL-CIO [Bernhard Altmann Texas Corp.] v. N.LR.B., 366 U.S. 731 (1961), and argues that numerous courts of appeals have recognized that during a pending Board representation proceeding, if an employer bargains with one of two competing labor unions, "the employer does so at his peril, for if the union does not in fact represent a majority of the employees, the recognition of and bargaining with a minority union is an unfair labor practice, regardless of the employer's good faith in the matter." C. Concluding Findings I assume that where objections to an election are sustained and the election is set aside, the Board would apply the "at-its-peril" doctrine, Sundstrand Heat Transfer, Inc. v. N.LRB., 538 F.2d 1257 (C.A. 7, 1976), Bernhard- Altmann, supra, at 737-739, and find it unlawful for the employer to have bargained after the invalid election with one of the competing unions pending the resolution of the objections filed by the other union. As ruled in Bernhard- Altmann (involving recognition of a minority union), the favored, union is given "a marked advantage over any other in securing the adherence of employees." But here, the March 20 election is held to be a valid one. Nearly a year and a half has already passed since the election, and this case could be in litigation even longer before a final determination is made of the validity of the election. Meanwhile, following the Independent's over- whelming victory in the voting, the Company and Indepen- dent have implemented a 3-year renewal of their agree- ment, have finished the job-evaluation program, have resolved many differences through the contractual griev- ance and arbitration procedure, and have seemingly restored stability in the industrial relations. And the employees have not been deprived of representation by the Union for which over two-thirds of them voted. There would indeed be advantages to requiring the employer to wait until the Board, determines the choice of an uncoerced majority before recognizing and bargaining with a union whose victory in the election is under attack. However, at least in the present fact situation, I find that the advantages are outweighed by the right of the employ- ees to have representation in the meantime by the Union for which the overwhelming majority of them voted in a valid election, and by the goal of promoting industrial peace and stability. I therefore find that the Company and Independent acted at their peril in negotiating, executing, and implementing the 1975-78 agreement while the Boilermakers objections to the election were pending, but that having correctly determined the validity of the election, they did not thereby violate the Act. Accordingly, I dismiss the complaint in its entirety. CONCLUSIONS OF LAW Although acting at their peril by negotiating, executing and implementing the 1975-78 collective-bargaining agree- ment while the Boilermakers objections to conduct affect- ing the results of the March 20, 1975, election were pending, the Company and Independent correctly determined the validity of the election and therefore did not thereby violate the Act. Upon the foregoing findings of fact and conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: TAYLOR FORGE DIVISION, GULF & WESTERN 701 ORDER2 (Recommended Certification of Representative omitted The complaint is dismissed in its entirety. from publication.] 2 In the event no exceptions are filed as provided in Sec. 102.46 of the of the Rules and Regulations, be adopted by the Board and become its Rules and Regulations of the National Labor Relations Board, the findings, findings, conclusions, and Order, and all objections thereto shall be deemed conclusions, and recommended Order herein shall, as provided in Sec. 102 .48 waived for all purposes.