Combustion Engineering, Inc.

National Labor Relations Board - Board Decisions

Mar 10, 1970

181 N.L.R.B. 602 (N.L.R.B. 1970)

602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Combustion Engineering , Inc., Saginaw Division and
Local No. 7, Saginaw , Michigan , Bricklayers,
Masons and Plasterers ' International Union of
America, AFL-CIO and United Steelworkers of
America , AFL-CIO. Case 7-CA-6935
March 10, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On June 6, 1969, Trial Examiner Benjamin A.
Theeman issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
certain unfair labor practices within the meaning of
the National Labor Relations Act, as amended, and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. Thereafter,
Respondent filed exceptions to the Trial Examiner's
Decision and a supporting 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, the brief, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner to the extent consistent herewith.
The record shows that for some 30 years, the
Company's in-plant brickworkers have been
members of, and represented by, both Steelworkers
and Bricklayers Local No. 7. The task of
representing the brickworkers was roughly divided
so that Bricklayers handled hiring, wages, and
hours, while Steelworkers dealt with seniority and
fringe benefits. It was this unusual representational
scheme that eventually led to the Board's direction
of an election among brickworkers to determine
which union was their choice as "exclusive"
bargaining representative. See Combustion
Engineering, Inc., 177 NLRB No. 34. After the
balloting, but before the Board had ruled on certain
election issues raised by Steelworkers, the Company
was faced with the need to fill vacant brickworker
positions. In filling these vacancies the Company
chose to follow the bid procedures and wage rates of
the Steelworkers' contract, rather than the
previously used "word of mouth" hiring and wage
rates of the Bricklayers. The Trial Examiner, citing
Midwest Piping,' held that this conduct violated the
required neutrality imposed on employers during the
pendency of a question concerning representation.
Accordingly, he found that Respondent had assisted
the Steelworkers in violation of Section 8(a)(2) and
(1) of the Act.
As a general matter, employers with employees
represented by a labor organization who are faced
with a rival claim that gives rise to a real question
concerning representation should remain neutral and
refrain from altering existing job conditions and
hiring practices. It is arguable that, since the
Respondent knew of the outstanding representation
issue, the better practice might have been for it to
maintain the existing system of dual representation
and adhere to the Bricklayers' hiring procedures
until the Board resolved the issue.' But even if it is
assumed that Respondent's departure from its past
"word of mouth" hiring practice rendered unlawful
assistance to the Steelworkers, we deem it
inappropriate to make such a finding and enter a
remedial order as the Trial Examiner has done. The
representation issue underlying Respondent's
difficulties in this case has now been resolved. A
certification to the Bricklayers has issued as well as
a bargaining order in its favor.3 In view of this
outstanding requirement that Respondent bargain
with the Bricklayers, it could not further effectively
implement any statutory policy to find prior
assistance to the Steelworkers and require
Respondent to withhold assistance and withdraw
recognition from Steelworkers. Such finding and
order would now seem to be superfluous. We shall
therefore dismiss the complaint.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint in
this proceeding be, and it hereby is, dismissed in its
entirety.
'Midwest Piping and Supply Co . 63 NLRB 1060
'However, defining "neutral" conduct under the circumstances is a
difficult task , owing to the doubtful legality of the existing dual
representation scheme Had the Company followed the Bricklayers ' hiring
procedures , it might have been vulnerable to the charge of perpetuating an
unlawful non-exclusive representation system favoring Bricklayers
'Combustion Engineering , 177 NLRB No 34
TRIAL EXAMINER ' S DECISION
STATEMENT OF THE CASE
BENJAMIN A THEEMAN, Trial Examiner The
complaint, as amended, alleges that Respondent,
Combustion Engineering, Inc., Saginaw Division,' had
engaged and is engaging in unfair labor practices affecting
commerce within the meaning of Sections 8(a)(2) and (1)
and 2(6) and (7) of the National Labor Relations Act, as
amended, 29 U.S.C. 151, et seq (the Act), by unlawfully
supporting and assisting the United Steelworkers of
'On June 20, 1966, Combustion Engineering , Inc, became successor to
Wicks Boiler Company , Saginaw Division, by purchasing the latter 's assets
and business No issue because of successorship exists The term
"Respondent" includes Wickes
181 NLRB No. 83
COMBUSTION ENGINEERING, INC. 603
America, AFL-CIO (Steelworkers) T The charge and
amended charge were filed by Local No. 7, Saginaw,
Michigan, Bricklayers, Masons and Plasterers'
International Union of America, AFL-CIO (Bricklayers).
Respondent in its amended answer denies the commission
of any unfair labor practices.
Pursuant to notice, a hearing was held before me in
Bay City, Michigan, on December 11 and 12, 1968. The
General Counsel, Respondent, and the Steelworkers as a
Party in Interest, appeared by their respective counsel
They were given full opportunity to participate, adduce
evidence, and examine and cross-examine witnesses. Each
counsel argued orally at the close of the hearing and
subsequently filed briefs. The argument and the briefs
have been carefully considered.
Upon the entire record in the case and from my
observation of the witnesses, I make the following
FINDINGS OF FACT
1. BUSINESS OF RESPONDENT
Respondent is engaged in the manufacture, sale, and
distribution of utility and industrial equipment and related
products. Its principal place of business is in Connecticut.
In addition, it has plants in the States of Michigan,
Tennessee, Missouri, and New York. The Michigan plant,
located in Saginaw, manufactures steam boilers, and is the
plant involved in this proceeding
During the year ending December 31, 1967, which
period is representative of its operations, Respondent, in
the course and conduct of its business, (a) purchased and
caused to be transported and delivered at the Saginaw
plant goods and materials valued in excess of $6 million
of which goods and materials valued in excess of $150,000
were transported and delivered to the Saginaw plant,
directly from points outside the State of Michigan; and
(b) manufactured, sold, and distributed at the Saginaw
plant, products valued in excess of $10 million of which
products valued in excess of $150,000 were shipped from
said plant directly to points located outside the State of
Michigan. In accord with the foregoing, it is found that
Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act
Saginaw plant. The parts were shipped for assembly to a
place directed by the purchaser Necessary brickwork in
connection with the assembly was done by
journeymen-bricklayers of that particular local area. In
Saginaw, the making of the component parts was
performed by the shop (production and maintenance)
employees who numbered between 180 and 200 persons
one of whom was a full-time journeyman-bricklayer. The
latter did necessary brickwork in the plant.
From 1941 to 1945, Respondent started to manufacture
a package boiler and has continued to do so till the
present Unlike the boilers made before, the package
boiler including the brickwork was assembled in the plant
and shipped as assembled. The work on the package
boiler was done as heretofore by the shop or production
and maintenance employees including brickworkers.' This
production change resulted in approximately 90 percent of
the boiler brickwork being done in the Saginaw plant It
also resulted in the employment of an increasing number
of in-plant brickworkers. In 1941 three brickworkers were
on the payroll. Between then and the time of the hearing
the number of brickworkers increased, but at no time was
more than six or seven. At the time of the hearing
Respondent employed about 300 production and
maintenance employees' including 5 in-plant brickworkers.
For the past 32 years brickworkers employed by
Respondent were members of the Bricklayers and at all
times paid dues directly to the Bricklayers. When
employed by Respondent, the brickworkers became
members of the Steelworkers also. This dual membership
arose because first of a closed shop and later a
union-security provision in the successive
collective-bargaining agreements between Respondent and
the Steelworkers. For the past 32 years, Respondent
recognized and dealt with the Bricklayers as representative
of the brickworkers with regard to certain conditions of
employment, Respondent also recognized and dealt with
the Steelworkers as representative of the brickworkers as
to other conditions of employment. The attempt of the
Respondent in August and October 1968 to alter this
representative pattern gave rise to this proceeding.
C. The Respondent Has Dealt with the Steelworkers
Since 1937
II. THE LABOR ORGANIZATIONS
Local No. 7, Saginaw , Michigan, Bricklayers , Masons
and Plasterers' International Union of America,
AFL-CIO, and United Steelworkers of America,
AFL-CIO, are labor organizations within the meaning of
Section 2(5) of the Act
111. THE UNFAIR LABOR PRACTICES
A. The Issue
The issue is whether Respondent pending a question
concerning representation so altered its practice of hiring
brickworkers as to assist and support the Steelworkers in
violation of Section 8(a)(2) and (I) of the Act
B Background
Prior to World War II, Respondent manufactured
steam boilers by making the component parts in its
'This term includes the Steelworkers predecessor , "The Steelworkers'
Organizing Committee "
1. Collective-bargaining agreements
In 1937, Respondent entered into a closed shop
agreement with the Steelworkers as the sole
collective-bargaining agency for Respondent's shop
(production and maintenance) employees. This agreement
and successive collective-bargaining agreements with the
Steelworkers included provisions covering wages, hours,
seniority, union security,' fringe benefits, procedures for
filling vacancies, grievance procedures, and other
conditions of employment. Each successive agreement, as
in the 1937 agreement, provided that Respondent
recognized the Steelworkers as the sole and exclusive
representative for the production and maintenance
employees.
'Unless otherwise indicated the term "production and maintenance
employees" includes bricklayers
'As of June 20, 1966, the integrated seniority list showed 225 employees
'In agreements subsequent to 1951 In that year a union -security election
was held among the production and maintenance employees under Board
auspices Brickworkers voted in the election Thereafter , production and
maintenance employees became members of the Steelworkers and signed
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Steelworkers contract includes the
classification of mason
In 1953, a schedule of the classifications of the
production and maintenance employees was annexed to
the Steelworkers contract. It was continued in all
subsequent contracts. One of the classifications was a
"mason ." All the parties to this proceeding and the
employees understood that the work of a "mason" was
the same as that of a "journeyman-bricklayer," the
designation used by the Bricklayers. As set forth below,
the rate of pay set in the Steelworkers contract for a
mason was always less than that established by the
Bricklayers.
3. Hiring procedures under Steelworkers contract not
used for masons
Prior to 1953, Respondent hired production and
maintenance employees other than brickworkers from
applicants who came to the front office looking for work,
or in response to advertisements that Respondent placed
in the newspapers In 1953, the Steelworkers contract
provided for a bid notice procedure to fill vacancies
among the production and maintenance employees. The
bid notice procedure provided that within 2 days after a
vacancy occurred Respondent shall post a notice on the
bulletin board requesting production and maintenance
employees to bid on the job. The notice was to remain
posted for 2 working days after which the job was to be
awarded. The applicant with the greatest seniority usually
got the job. As hereafter shown Respondent, until 1968,
used this bid notice procedure to fill open jobs among its
production and maintenance employees except
brickworkers.
D. Respondent Has Dealt With the Brickworkers as
a Special Group of Employees
1. Oral arrangements with the Bricklayers from 1937
to 1958
No written contract was in effect between Respondent
and the Bricklayers from some time prior to 1937 until
May 1, 1958. During this period Respondent dealt with
and recognized the Bricklayers as representative of its
in-plant journeyman-bricklayers (brickworkers).
Respondent paid the brickworkers according to the area
practice established by the Bricklayers. Respondent
received information about wages and hours from business
agents of the Bricklayers or the bricklayer employees
themselves. In addition to wages, the brickworkers
received and participated in the fringe benefits paid to
members of the Steelworkers under that contract.
Respondent hired bricklayers by advising its brickworkers
of vacancies or brickworkers inquiring of possible
vacancies, a "word of mouth" method described below.
No apparent conflict existed between the conditions of
work established by Steelworkers and those established by
the Bricklayers until the execution of the 1953
Steelworkers contract, which as stated above established- a
mason classification, a mason wage rate, and a bid
procedure for jobs. Respondent continued its employment
membership and checkoff authorization cards Respondent deducted dues
from the pay of the production and maintenance employees and paid it to
the Steelworkers Brickworkers employed by Respondent continued to pay
Bricklayers dues directly to that Union
and dealings with the Bricklayers as though there were no
such conflict. It paid brickworkers the Bricklayers rate,
which was about $1.50 higher than the mason rate,6 and
continued to hire brickworkers by "word of mouth "
2. Different treatment for brickworkers was continued
in the written agreements from May 1, 1958
The different treatment by Respondent of the
brickworkers was incorporated into the first written
contract between Respondent and the Bricklayers in 1958.'
Respondent negotiated this contract for its own benefit. It
achieved a change in the wage rate paid brickworkers so
that it no longer paid fringe benefits as an addition to the
area rate. From 1958 forward, a dollar equivalent for
fringe benefits was deducted from the area rate. Thus, the
contract provided that brickworkers receive a lower base
rate and that they continue to receive the fringe benefits in
effect for the Company's plant employees The total effect
was that the in-plant bricklayers received the same wage
rate as the area bricklayers. The 1958 contract also
provided that it was to continue till May 1, 1959, "and
may be terminated thereafter by either Party serving
written notice on the other Party at any time."
Similar successive yearly contracts were executed
between Respondent and the Bricklayers through July 24,
1964 The contracts differed only in that the base rate was
increased.
On July 24, 1964, a new contract was executed expiring
May 1, 1966 This contract was the same as the previous
ones for brickworkers already employed and incorporated
two increases in base rate pay It contained a new
provision that a newly employed brickworker does not
receive fringe benefits for the first 60 days of his
employment but receives the area rate of pay instead; at
the end of 60 days the new employee becomes entitled to
fringe benefits; and accordingly, his base wage becomes
the reduced rate. The 60-day nonfringe benefit period was
inserted in the Bricklayers contract to conform to a
similar provision in the Steelworkers contract
On May 11, 1966, Respondent and the Bricklayers
entered into a new contract effective May 1, 1966,
expiring on May 1, 1967 It was the same as the July 24,
1964, contract except that the base rate was increased As
with all previous contracts, it provided that the contract
may be terminated at any time after the expiration date
by either party serving written notice on the other party.
On May 18, 1967, Respondent and the Bricklayers met to
negotiate the renewal of a new contract. Respondent
informed the Bricklayers that, upon advice of legal
counsel and because of the existence of the Steelworkers
contract, no new contract could be executed There is no
evidence that Respondent served a written notice of
termination on the Bricklayers Respondent continued to
pay its brickworkers the base rate plus fringe benefits in
accord with the May 1, 1966, contract.
'The wage of a journeyman -bricklayer was at all times higher than the
rate for "mason" set out in the Steelworkers contract Bricklayers got
double time for overtime - not Steelworkers Bricklayers were always the
highest paid of all the classifications among the production and
maintenance employees
'The custom of the Bricklayers was to negotiate and settle its area
contract first Then, it would negotiate with Respondent for the in-plant
brickworkers
COMBUSTION ENGINEERING, INC. 605
3 Respondent uses the "word of mouth" method to
hire brickworkers
In 1937 when the Steelworkers executed their first
closed shop agreement there was one in-plant, full-time
bricklayer employed by Respondent, named Klement.' He
was a member of the Bricklayers. To continue in
employment, he joined the Steelworkers. As stated above,
this number increased to three brickworkers by 1941.
Each was a member of Bricklayers. The method of hiring
new bricklayer employees known as the "word of mouth"
method was generally as follows-'
The hiring procedure for the Bricklayer was merely a
word of mouth. If we needed a bricklayer we would ask
one of our present bricklayers if they knew anyone that
needed a job. If they knew of one we would have them
send them in and if after we interviewed them they
proved or we felt they were satisfactory we hired them
In 1945 with additional emphasis on the package boiler
the need for bricklayer employees increased Additional
members of the Bricklayers were hired by word of mouth.
The number of in-plant bricklayers remained at a constant
five or six starting in the early 1960's 11 In hiring in-plant
brickworkers, Respondent did not contact the
Steelworkers. No brickworker job was offered at a rate
other than that set up by the Bricklayers There is no
evidence that the Steelworkers at any time objected to any
aspect of Respondent's practice of hiring brickworkers."
E. Respondent Changes its Hiring Method to Use
Steelworkers Procedures to Employ In-Plant
Brickworkers
On May 27, 1966, Respondent without consulting the
Bricklayers posted two masons jobs for bid to work on the
night shift at $3.44 1/2 per hour plus 10-cents-per-hour
night premium The Bricklayers contract rate for in-plant
bricklayers was $4.94 per hour. None of the Bricklayers
members bid on these jobs A number of other employees,
members of the Steelworkers did. Respondent considered
that none of the applicants was skilled enough to handle
the work and did not award the jobs to any person.' _
Respondent provided for the night-shift work by moving
some of the day brickworkers to the night shift and
paying them overtime." Because Respondent used the bid
notice, a meeting was held between representatives of
Respondent and the Bricklayers at the offices of the
Bricklayers. This occurred later in May or June 1966,
about the lime Combustion was taking over Wickes. The
'There is testimony that another bricklayer , a member of the Bricklayers
(Merkle ), was employed at this time The evidence is not clear that he was
a full-time employee The plant superintendent who testified as to Klement
stated he was not certain that Merkle was permanent It is found that
Merkle was not a full-time employee
'From the testimony of Lyman, Respondent 's plant superintendent for
the period from 1942 to 1964; corroborated by the testimony of Kreuchauf,
Respondent 's assistant superintendent from 1950 to 1964 and
superintendent from 1964 forward.
"In the 25 years preceding the hearing, Respondent filled from six to
eight in-plant bricklayer vacancies by the "word of mouth" method
In the opinion of the Examiner this case does not hinge upon a showing
of knowledge by the Steelworkers of the relationship between Respondent
and the Bricklayers Should such a finding be necessary , it is found that
the Steelworkers since 1937 knew that the brickworkers were members of
the Bricklayers , were being paid the Bricklayers scale, and were being
represented by the Bricklayers at least as to wages and hours and
conditions of employment dealing with wages and hours . The testimony of
Bellinger is not credited
Bricklayers were assured that Respondent intended to
fulfill the existing contract with the. Bricklayers but that
the hiring of two additional brickworkers was being
delayed because of existing problems with the
Steelworkers.
On August 30, 1968, Respondent again put up a mason
job for bid in accord with the Steelworkers bid
procedures.'' The rate of pay was $3.58 per hour as
specified in the Steelworkers contract. In-plant
brickworkers received a base rate of $4.94 per hour
according to the Bricklayers contract. The bid notice was
posted without prior notification to the Bricklayers or to
any of the in-plant brickworkers then employed. The
Respondent's plant superintendent upon being questioned
by the steward for the Bricklayers stated that he planned
on filling the job as bid because Respondent, "had a
contract with the Steelworkers and [Respondent] did not
have a contract with" the Bricklayers About September 8
or 911 the job was awarded to a member of the
Steelworkers. He was neither a journeyman-bricklayer nor
a member of the Bricklayers.
On October 14, 1968, Respondent posted another bid
notice for two masons in the same manner and at the
same rate of pay as the August notice. The same
procedures were repeated. The two jobs were awarded to
two members of the Steelworkers' 6 who were neither
members of the Bricklayers nor journeyman-bricklayers.
F. Grievances, Disputes, and Other Problems
Involving Brickworkers Are Handled by the
Bricklayers or the Steelworkers"
Both the Bricklayers and the Steelworkers represented
the in-plant brickworkers in the handling of grievances.
Roughly divided the grievances fell into two classes. (a)
those dealing with hours and wages which were handled
by the Bricklayers;" and (b) those dealing with fringe
"Respondent points out that no unfair labor practice charge was filed
based on this bid notice This fact is considered of no significance herein
"As shown later, this move gave rise to an unresolved grievance
presented to Respondent by the Bricklayers
"At this time there was pending before the Board Respondent's "RM"
petition dated Septemlwr 8, 1967, for an election based on a question
whether the Steelworkers or the Bricklayers represented a unit composed
of brickworker employees See section G below
"On September 5, 1968, the charge giving rise to this proceeding was
filed by the Bricklayers.
"A member of the Bricklayers employed in the plant as a laborer bid for
one of these jobs It was awarded to him He worked 3 days and then
withdrew This was done because the Bricklayers brought him up on
charges of working for less than scale and fined him $100 . The fine was
suspended when he returned to his job as a laborer
"The General Counsel attempted to show that the working rules
contained in the Bricklayers constitution and bylaws were generally
adopted by Respondent Respondent admitted that it was guided by the
hours and wages contained in the rules . Respondent and the Steelworkers
also attempted to show that the brickworkers participated actively in
Steelworkers internal organization and union matters In view of the
finding herein that Respondent clearly recognized the Bricklayers in certain
areas of the employer-employee relationship the Examiner finds that it is
unnecessary to resolve the extent to which the Respondent adopted or was
guided by the Bricklayers working rules or the extent of the activity of the
brickworkers as members of the Steelworkers.
"Examples of these are. (1) Meetings and consultations between officials
of the Bricklayers and Respondent about the use of the bid procedures for
hiring bricklayers in May 1966 and again in August and October 1968. (2)
In the early 1960's Respondent's plant superintendent ordered that
insulation be installed in the boilers by Steelworker mechanics The
steward of the Bricklayers objected because that Union had always done
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
benefits which were handled by the Steelworkers 19
G Representation Proceedings Before the Board
On September 8, 1967, Respondent filed an "RM"
petition with Region 7 of the Board alleging that a
question concerning representation existed in respect to
the in-plant bricklayer employees; that the Bricklayers and
the Steelworkers each claimed to represent these
employees. The unit specified in the petition was of
bricklayers with "all other production and maintenance
employees excluded "30 After a hearing the Regional
Director, on December 1, 1967, issued a Decision and
Direction of Election, finding that a question concerning
representation existed and directed that an election be
held. He also found:
For the reasons fully explicated above, I find that the
following employees of the Employer constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:'
All bricklayers employed by the Employer at its 601
N. Washington, Saginaw, Michigan, location,
excluding all other employees, office clerical
employees, professional employees, and guards and
supervisors as defined in the Act.
'Implicit in my discussion in this decision of the unit question is that a
unit of production and maintenance employees , including bricklayers, is
also appropriate and had the two unions chosen jointly to represent such
a unit for all collective bargaining purposes , such request would have
been granted However , the unions have made no such request to date
On December 15, 1967, the Steelworkers filed with the
Board a request for review of the Regional Director's
Decision and Direction of Election. Official notice is taken
that on January 29, 1968, and February 5, 1968, balloting
by mail occurred The Regional Director impounded the
ballots. 21
this work since packaged boilers were started The plant superintendent
agreed with the steward , pulled the Steelworkers mechanics off and let the
Bricklayers finish the job (3) The dispute after the May 1966 bid The
Bricklayers rules provide that when working on the night shift,
brickworkers get 8 hours pay for 7 1/2 hours work Respondent did not
comply This matter was unresolved at the time of the hearing (4)
Bricklayer rules required that brickworkers receive double time for
overtime, but before working they must first apply to the Bricklayers for
permission This procedure was recognized and concurred in by the
Respondent The practice and the method of pay were different than those
of Steelworkers
"Examples of these are (1) In 1955 there was an 84-day strike at the
plant As part of the strike settlement grievances were filed by the
production and maintenance employees concerning vacation pay The
Steelworkers processed the grievance to completion (2) Seniority lists of
the production and maintenance employees were integrated, i e , the
brickworkers were included in regular order among all the production and
maintenance employees The Steelworkers processed grievances pertaining
to seniority involving brickworkers (3) Brickworker referred all disputes
regarding fringe benefits to the Steelworkers
"There is no contention that the brickworkers constitute an
inappropriate unit
"Action taken by the Board and the Regional Director in the RM
proceeding after the hearing in this proceeding has no bearing on the
unfair labor practice found herein
"Respondent in a footnote to its brief states as follows
At the outset of the hearings the Company requested the Trial Examiner
under Section 102 35(k) of the Board 's Rules and Regulations to have
the General Counsel state his theory of the case . The General Counsel
declined to do so other than to recite a meaningless repetition of the
basic allegations of the Complaint Despite vigorous efforts by the
Company the General Counsel repeatedly would not advise the
Company as to the legal theory of its case until the close of the trial
Analysis and Conclusions23
1 Respondent though it had agreements with the
Steelworkers since 1937 that contained closed shop
and union-security provisions and stated that the
Steelworkers were the sole bargaining representative
of the production and maintenance employees,
nevertheless since 1937 dealt with the Bricklayers as
representative of the in-plant brickworkers
It is clear from the record that since 1937 Respondent
has been dealing with the Steelworkers and the
Bricklayers as representatives of the "in-plant"
brickworkers, without either Union having been certified
by the Board. As stated above the brickworkers were
loosely considered a part of the production and
maintenance employees. The Bricklayers represented only
the "in-plant" brickworkers; the Steelworkers represented
the brickworkers as part of the production and
maintenance employees. The area for representation that
was specially reserved to the Bricklayers or to the
Steelworkers was never clearly defined. Nevertheless, the
dealings among the three parties continued without
apparent friction, with full accord of the Respondent and
without objection from the Steelworkers. By rough
categories, the Bricklayers bargaining dealt with hiring,
wages, and hours, the Steelworkers bargaining dealt with
fringe benefits. Each union processed grievances that fell
in these respective areas on behalf of the brickworkers.
This system of parallel or dual representation continued
for over 30 years despite the fact that (a) the Steelworkers
at all times were designated the sole collective-bargaining
agency for a unit of Respondent's shop or production and
maintenance employees; (b) the "in-plant" brickworkers
at all times were considered shop or production and
maintenance employees; (c) the "in-plant" brickworkers at
all times were members of the Bricklayers, but to comply
with the Steelworkers agreements were required to and
did become members of the Steelworkers when employed
by Respondent; and (d) the "in-plant" brickworkers, after
a union-security clause was included in the Steelworkers
contract, executed Steelworkers checkoff authorization
cards and paid dues to the Steelworkers accordingly.
Respondent since 1937, by its actions and the subjects
dealt with showed that it recognized the Bricklayers as a
collective-bargaining representative of the in-plant
brickworkers.2J Arrangements between Respondent and
the Bricklayers from 1937 to 1958 were not in writing, but
an oral operative bargaining agreement was in effect.
Recognition of the Bricklayers was manifested (a) to 1953
by Respondent, upon information from the Bricklayers,
adopting its established wage scale and paying the
brickworkers accordingly, and by hiring new brickworkers
as recommended by brickworkers; and (b) to 1958, by
continuing to pay brickworkers Bricklayers rates and
The Company submits that such action substantially prejudiced it in
violation of due process of law (R 14-16)
The Examiner , absent a request for action on the part of Respondent,
nevertheless has taken cognizance of the footnote The Examiner has
considered Respondent 's position and has studied the record He finds that
Respondent at all times appeared to be aware of the General Counsel's
position and that the issues have been litigated by the parties Other than
the statement that Respondent has been "substantially prejudiced,"
Respondent has made no showing of prejudice The record shows that
Respondent has not been prejudiced by the General Counsel's actions It is
so found
"Under Section 8(d) of the Act wages and hours are mandatory subjects
for collective bargaining and grievances , seniority , and fringe benefits effect
or may effect wages and hours and are therefore also mandatory subjects
COMBUSTION ENGINEERING, INC. 607
using the "word of mouth" hiring method despite the fact
that the existent Steelworkers contract set up a mason
classification for the work of the journeyman-bricklayer at
a wage rate substantially less per hour than the
Bricklayers rate and provided for a bid procedure for
hiring masons
Respondent's execution of the series of written
agreements with the Bricklayers from 1958 through 1966
clearly showed the relationship among the parties and
demonstrated conclusively that Respondent recognized the
Bricklayers as bargaining agent for the "in-plant"
brickworkers. The negotiations for these contracts dealt
with the dollar value and payment of fringe benefits
provided under the Steelworkers contract as it affected the
wage rate paid the brickworkers Respondent relieved
itself of this situation not by bargaining with the
Steelworkers, even though the "in-plant" bricklayers were
all members of the Steelworkers, but as it had since 1937,
by negotiating with the Bricklayers The 1958 contract
resulted in reducing the Bricklayers rate by the dollar
value of the fringe benefits. Negotiations between
Respondent and the Bricklayers continued as evidenced by
the series of written agreements thereafter. Changes were
made as shown by the 1964 contract providing for the
60-day period of nonpayment of fringe benefits.
Although not included in the Bricklayers contract,
Respondent until May 1966 continued to hire "in-plant"
bricklayers by the "word of mouth" method instead of
using the bid notice procedure required by the
Steelworkers contract for hiring production and
maintenance employees. The attempt of Respondent in
May 1966 to hire a brickworker via the bid notice
procedure proved a failure because of the lack of skilled
personnel among the Steelworkers members. Respondent
then resolved its problem by reshuffling the brickworkers.
There is no evidence to show that this abortive attempt
caused a change in the relationship of Respondent with
the Bricklayers. To the contrary, at a meeting thereafter
in May or June 1966, Respondent assured the Bricklayers
that the latter's contract would be carried out and the
hiring of the two brickworkers was being delayed because
of problems with the Steelworkers.
In May 1967 Respondent met with representatives of
the Bricklayers to discuss the terms of a new contract.
Respondent advised the Bricklayers that it had received
legal advice not to negotiate with the Bricklayers because
of the existence of the Steelworkers contract The meeting
then broke up. Respondent took no positive action to
change its relationship with the Bricklayers. Respondent
did not give the Bricklayers written notice of termination
of the 1966 contract as required by its terms of the
contract and continued to pay wages to the "in-plant"
bricklayers as provided therein.
Finally, as further evidence of the relationship between
Respondent and the Bricklayers there is the list of
grievances set out above that were discussed and
negotiated between them. Clearly Respondent dealt with
the Bricklayers and its agents as the representative of the
brickworkers in resolving these disputes.
From all of the foregoing it is found that in August and
October 1968 the Bricklayers represented the in-plant
brickworkers employed by Respondent and was
recognized as such by Respondent.2'
for collective bargaining Bethlehem Steel Company, 136 NLRB 1500,
1503
"This finding takes into consideration the fact that the Steelworkers
presented grievances to Respondent on behalf of the in-plant brickworkers
2 A valid question concerning representation exists
The record does not disclose what sparked
Respondent's filing of the RM petition in September
1967, nor is that information essential to this proceeding
The fact is that Respondent then knew that the
Steelworkers and the Bricklayers each represented the
in-plant brickworkers as to wages, hours, and other
conditions of employment; that there then existed a valid
question concerning representation of the brickworkers as
between the Steelworkers and the Bricklayers; and that
Respondent wished to have the question resolved The
Regional Director agreed with Respondent and after
hearing directed that an election be held Under these
circumstances, there is no doubt that a valid question
concerning representation existed when Respondent filed
its RM petition35 and that the question remained unsettled
through October 1968 It is so found
3. Respondent by using the Steelworkers bid
procedures in August and October and attempting to
pay Steelworkers rates for masons during the
existence of a valid question concerning
representation unlawfully assisted and supported the
Steelworkers
Respondent prior to 1953 customarily hired
brickworkers by "word of mouth" and paid them
Bricklayers rates. In 1953, the mason classification and
rate and the bid procedure was included in the
Steelworkers contract Respondent, without objection
from the Steelworkers, continued to hire and pay
brickworkers in accord with Bricklayers arrangements and
did not use the applicable provisions of the Steelworkers
contract. Thus, Respondent since 1953 has consistently
adhered to the Bricklayers arrangements and consistently
administered and interpreted the Steelworkers contract
differently than its terms as it relates to brickworkers Cf
Frontier Homes Corporation, 153 NLRB 1070, 1072; also
cf. Gravenslund Operating Company, d/b/a Washington
Hardware and Furniture Co, 175 NLRB No. 10, and J
S Dillon & Sons Stores Co, Inc, 144 NLRB 1235, 1242
Nevertheless, it is contended that in August and
October 1968, Respondent "complied with provisions of
its agreement with the Steelworkers" when it used the bid
procedures.26 This contention is a technical one and has no
merit.S7 Possibly the contract as written could be said to
as production and maintenance employees
"The Electric Furnace Co, Inc, 137 NLRB 1077, 1089
"See Shea Chemical Corporation, 121 NLRB 1027, where the Board on
page 1029 stated
We now hold that upon presentation of a rival or conflicting claim which
raises a real question concerning representation , an employer may not go
so far as to bargain collectively with the incumbent (or any other) union
unless and until the question concerning representation has been settled
by the Board 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 grievances through
its stewards
The contention refers specifically to the second quoted sentence
"So also is the contention that the September 1966 Steelworkers
contract is inviolate under the 6 months' provision of 10(b) and the
decision of the Supreme Court in Local Lodge No 1424, Machinists v
Bryan Manufacturing Co , 362 U S 411 This proceeding does not attempt
to attack the Steelworkers contract See Frontier Homes Corporation,
supra The charge and complaint in this proceeding deals with
Respondent 's actions of August and October 1968, not with the validity of
the contract Enforcement of the Steelworkers contract as a matter of right
exsts between the parties to that contract The existence of that contract
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
apply to the August and October actions of Respondent 18
But collective bargaining deals with human and viable
relations As shown, Respondent for approximately 30
years has used the "word of mouth" method to hire
brickworkers and paid the Bricklayers rates Paralleling
this action Respondent used a different method to hire
other production and maintenance employees to 1953, and
after that date used the bid notice procedure for all other
classifications. These actions clearly show that Respondent
administered the Steelworkers contract as though the bid
notice procedures and the mason rates did not apply to
brickworkers." In May 1966, Respondent assured the
Bricklayers it would fulfill the current Bricklayers
contract. Absent evidence to the contrary, it is clear that
in August and October 1968 the "word of mouth" method
and the Bricklayers rates were still effective as to
brickworkers. Respondent arbitrarily and unilaterally
attempted to reinstate the procedures and terms of the
Steelworkers contract. Such a departure from the usual
rates and hiring practices of brickworkers was a
significant departure from past practices and a significant
impact on the brickworkers employed by Respondent
Such, a departure from past practice would have the
direct effect of undermining the Bricklayers and assisting
the Steelworkers The August and October bid notices
were directed to Steelworker members only. Though
unidentified in anyway, the employees knew that the bid
was directed to Steelworkers because the wage rate posted
was not the Bricklayers rate and a rate that no
journeyman-bricklayer would accept or be permitted to
accept under Bricklayers regulations.30
As shown, the total number of brickworkers in the
plant was five. Under the August and October hirings
three Steelworkers were hired as brickworkers who were
not members of the Bricklayers. It needs no crystal ball to
forecast that as vacancies in the Bricklayers jobs occurred
and as Respondent continued the use of the bid notice
procedure (and the economics of the situation indicates
that Respondent would do just that) the brickworkers
would soon be only Steelworkers members The
Bricklayers inevitably would be eliminated. It is clear
from the foregoing that Respondent by using the bid
procedures and the Steelworkers rate was rendering
definite assistance and support to the Steelworkers.
As shown at the time of the filing of the RM petition in
September 1967, there existed a valid question concerning
representation. Respondent knew it, and his knowledge
was confirmed by the action of the Regional Director.
Under established legal principles Respondent was
obligated to maintain a position of neutrality with respect
to the positions of the two Unions asserting representation
pending resolution of the representation question by the
Board. Midwest Piping and Supply Co, 63 NLRB 1060,
Shea Chemical Corp, 121 NLRB 1027. By using the bid
notice procedure in August and October 1968" to hire
brickworkers at Steelworkers rates of pay, when
does not prevent the Bricklayers from asserting rights accruing to the
Bricklayers under the loose operative agreement arising from the consistent
actions of Respondent in dealing with the Bricklayers.
"Whether Respondent acted in good faith or not is immaterial Cf
Allied Supermarkets, Inc, 169 NLRB No 135.
"Thus, Respondent 's contention (quoting Lenscraft Optical Corp , 128
NLRB 807, 825 ) that Respondent was merely administering and enforcing
the provisions of a lawful collective -bargaining agreement during a pending
question concerning representation has no merit.
"Note that Shelton was limed $100 by the Bricklayers for applying for
and accepting an October bid.
heretofore the Respondent had used the "word of mouth"
method of hiring brickworkers at Bricklayers rates,
Respondent breached its obligation of neutrality and its
duty to refrain from giving assistance to the Steelworkers.
Accordingly, it is found that Respondent, in changing its
hiring methods and rates of pay as herein set forth
unlawfully assisted and supported the Steelworkers within
the meaning of Section 8(a)(2) and (1) of the Act Guy's
Foods, Inc., 158 NLRB 936; St Louis Independent
Packing Company, 129 NLRB 622, 628; N L R B v.
Signal Oil and Gas Company, 303 F.2d 785 (C.A 5),
enfg 131 NLRB 1427.12
CONCLUSIONS OF LAW
1. In August and October 1968, by hiring brickworkers
by the use of the bid procedures and rates of pay
contained in the Steelworkers contract when prior thereto
Respondent had customarily hired brickworkers by using
the "word of mouth" method established in a working
arrangement with the Bricklayers at rates of pay
contained in a contract with the Bricklayers and by
making this change at a time when a valid question
concerning representation existed with respect to the
brickworkers employed by Respondent, Respondent has
engaged in unfair labor practices within the meaning of
Section 8(a)(2) and (1) of the Act
2 The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act
THE REMEDY
It having been found that Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(2) and (1) of the Act, my Recommended Order will
require that Respondent cease and desist therefrom and
take certain affirmative action designed to effectuate the
policies of the Act.
It having been found that Respondent has unlawfully
assisted and supported the Steelworkers in relation to the
brickworker employees the Steelworkers cannot be
considered the free and uncoerced choice of the
brickworkers employed by Respondent at the Saginaw
plant.
It has also been found that the existent Steelworkers
contract covers Respondent's production and maintenance
employees and the contract includes the brickworkers as
part of the production and maintenance employees; and
that this proceeding pertains only to brickworkers and not
the other production' and maintenance employees. It
follows that no question arises in this proceeding
concerning the Steelworkers contract insofar as it pertains
to production and maintenance employees other than
brickworkers It follows further that the contract between
Respondent and the Steelworkers which purports to cover
brickworkers must be set aside to the extent that it covers
the brickworkers and that Respondent must be required to
withhold recognition from the Steelworkers as the
representative of the brickworkers unless and until that
labor organization has been certified by the Board as the
"Respondent asserts it took this action because of the Board 's delay in
acting on the Steelworkers petition for review of the Regional Director's
decision Administrative delay does not save Respondent See W C
Nabors Company, 134 NLRB 1078, 1083, enfd 323 F 2d 686 (C A 5),
cert. denied 376 U S.'911.
"Cf G & H Towing Company, 168 NLRB No 82, wherein the Board
held that in a Midwest Piping situation extending the time only of an
expired contract was unlike Shea Chemical, supra, because, "No changes
were made in wages or any other contractual terms . " while the
question concerning representation existed.
COMBUSTION ENGINEERING, INC. 609
employees' bargaining representative. In view of the
assistance and support given by Respondent to the
Steelworkers, Respondent will also be required to cease
recognizing and giving effect to all dues-checkoff
authorizations in behalf of the brickworkers executed by
them prior to the date of compliance with this
Recommended Order. Jomar Metal Finishing Corp., 147
NLRB 1055, 1059. Nothing herein, however, shall be
construed as requiring Respondent to vary any wage or
other substantive feature of its relations with the
brickworkers which Respondent has established in the
performance of the contract or contracts with the
Steelworkers.
The circumstances of this case are peculiar. The record
shows that the brickworkers have maintained membership
in both Steelworkers and Bricklayers for many years. The
union security provision became effective in 1953. No
objection has been raised by either Union, the
Respondent, or the employees to the union-security
provision, the payment of dues to the Steelworkers by
virtue of the checkoff authorizations, or the fact that the
effect of the union-security provision coerced the
brickworkers to remain members of the Steelworkers. The
record contains no evidence to show that the brickworkers
wished to resign from the Steelworkers or made any effort
to do so. Absent any evidence of coercion the
brickworkers are not entitled to reimbursement. Lianco
Container Corporation, 173 NLRB No. 219; Spartans
Industries, Inc, 169 NLRB No. 47; Meyers Bros. of
Missouri, Inc, 151 NLRB 889, 890; Majestic Weaving
Co., Inc, of New York, 149 NLRB 1523, 1524,
distinguishing Sinko Manufacturing and Tool Company,
154 NLRB 1474, 1476; and Gladys A Juett, etc., 137
NLRB 397.
RECOMMENDED ORDER
Upon the basis of the above findings of fact,
conclusions of law, and the entire record in the case, and
pursuant to Section 10(c) of the National Labor Relations
Act, as amended, it is ordered that Respondent,
Combustion Engineering, Inc., its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Furnishing assistance or support to United
Steelworkers of America, AFL-CIO, or any other labor
organization of its brickworker employees at its Saginaw
plant.
(b) Recognizing the Steelworkers as the representative
of any brickworker employees for the purpose of dealing
with them concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or other terms or
conditions of employment , unless and until the National
Labor Relations Board shall certify the Steelworkers as
such representative.
(c) Giving effect to its agreement with the Steelworkers
to the extent it covers brickworker employees at its
Saginaw plant or to any extension, renewal, modification,
or supplement thereof, or to any superseding agreement,
unless and until the Steelworkers shall have been certified
by the Board as the representative of said employees; but
nothing herein shall be construed as requiring Respondent
to vary or abandon any wage or other substantive feature
of its relations with said employees, which it has
established in the performance of such agreements, or
prejudice the assertion by said employees of any rights
they may have thereunder
(d) Giving effect to any checkoff authorizations
heretofore executed by its brickworker employees,
authorizing the deduction of periodic dues, initiation fees,
or assessments from wages for remittance to the
Steelworkers prior to the date of compliance with this
Recommended Order.
(e) In any like or related manner interfering with,
restraining, or coercing its brickworker employees in the
exercise of their rights guaranteed under Section 7 of the
Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Withdraw and withhold all recognition from the
Steelworkers as the bargaining representative of its
brickworker employees at its Saginaw plant unless and
until said labor organization shall have been certified as
such representative by the Board.
(b) Post at its Saginaw, Michigan, plant copies of the
attached notice marked "Appendix."" Copies of said
notice, on forms provided by the Regional Director for
Region 7, after being duly signed by Respondent's
authorized representative, shall 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 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 7, in
writing, within 20 days from the receipt of this Decision,
what steps it has taken to comply herewith "
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice . In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read . "Notify said Regional Director, in
writing, within 10 days from the date of this Order , what steps Respondent
has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
After a trial in which all parties had the opportunity to
present their evidence, the National Labor Relations
Board has found that we violated the law and has ordered
us to post this notice and to keep the promises that we
make in this notice.
WE WILL NOT assist or support United Steelworkers
of America, AFL-CIO, or any other labor
organization.
WE WILL NOT give effect to or operate under any
agreement with the Steelworkers to the extent it covers
brickworker employees of this plant unless and until the
National Labor Relations Board shall have certified
that union as your bargaining representative. This does
not mean, however, that we will take away from you
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any wage increase or change any condition of your
employment merely because it may have been required
under a term of the Steelworkers contract.
WE WILL NOT give effect to any dues-checkoff card
which a brickworker employee may have signed,
authorizing us to deduct union dues from his wages and
pay them to the Steelworkers.
WE WILL withdraw and withhold recognition from
the Steelworkers as bargaining representative for the
brickworker employees and will not recognize it or any
other union as bargaining representative of the
brickworker employees unless and until such union has
been certified by the National Labor Relations Board
as their representative
All of you are free to join or support , or not to join or
support , any union.
Dated By
COMBUSTION
ENGINEERING, INC,
SAGINAW,'MICHIGAN
DIVISION
(Employer)
(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, 500 Book
Building, 1249 Washington Boulevard , Detroit , Michigan
48226, Telephone 313-226-3200.