International Metal Products Co.

National Labor Relations Board - Board Decisions

May 21, 1953

104 N.L.R.B. 1076 (N.L.R.B. 1953)

1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees, quality control employees, guards, and super-
visors as defined in the Act, constitute a unit appropriate
for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act.
[Text of Direction of Election" omitted f r o m publication.?
tz The Intervenor stated on the record that it did not wish to appear on the ballot.
ADAM D. GOETTL and GUST GOETTL, d/b/a INTERNA-
TIONAL METAL PRODUCTS COMPANY and UNITED
STEELWORKERS OF AMERICA, CIO and SHEET METAL
WORKERS INTERNATIONAL ASSOCIATION, LOCAL UNION
359, AFL, Party to the Contract. Case No. 21-CA-1433.
May 21, 1953
DECISION AND ORDER
On February 13, 1953, Trial Examiner William E. Spencer
issued his Intermediate Report in the above-entitled pro-
ceeding, finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and recommending
that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the copy of the Intermediate
Report attached hereto. The Trial Examiner also found that
the Respondent had not engaged in certain other unfair
labor practices as alleged in the complaint, and recom-
mended that these particular allegations in the complaint be
dismissed . Thereafter, the General Counsel, the charging
Union, 'hereinafter called the Steelworkers, and Sheet Metal
Workers International Association, Local Union 359, AFL,
hereinafter referred to as the Sheet Metal Workers, each
filed exceptions to the Intermediate Report, and the General
Counsel filed a brief.
Pursuant to the provisions of Section 3 (b) of the Act, the
Board has delegated its powers in connection with this case
to a three-member panel [Members Houston, Styles, and
Peterson].
The Board has reviewed the rulings made by the Trial
Examiner at the hearing and finds that no prejudicial error
was committed. The rulings are hereby affirmed. The Board
has considered the Intermediate Report, the exceptions and
the brief, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the
Trial Examiner, with the exceptions, modifications, and
additions noted below.
1. We concur in the Trial Examiner's finding that the
Respondent, by granting exclusive recognition to the Sheet
Metal Workers early in March 1952, and by entering into a
bargaining contract with that union on April 1, 1952, violated
INTERNATIONAL METAL PRODUCTS COMPANY 1077
Section 8 (a) (2) and 8 (a) (1) of the Act. Unlike the Trial
Examiner, however, we base our finding here on the fact
that, as alleged in the complaint and maintained by the Gen-
eral Counsel at the hearing and in his brief, the Sheet Metal
Workers was not the majority representative of the em-
ployees involved when recognition was granted and the con-
tract executed.'
In finding that the Sheet Metal Workers did not in fact
represent a majority of the Respondent's employees in March
or on April 1, 1952, we rely upon the following considerations:
On May 18, 1951, a representation election was held at the
Respondent's plant in which the Sheet Metal Workers failed
to receive a single vote.' And, except to the extent indicated
by the testimony of one of the respondent partners, which is
adverted to hereinafter, and employee Ernest B. Swisher,
who testified that he attempted to persuade employees to
join the Sheet Metal Workers and that he passed out Sheet
Metal Workers' authorization cards during the last 2 weeks
in March 1952,9 the record does not show that there was
any organizational activity among the Respondent's em-
ployees by or on behalf of the Sheet Metal Workers, or that
any employee of the Respondent in any way designated the
Sheet Metal Workers as his bargaining representative, during
the period between the date of the representation election and
April 1, 1952. Indeed, in response to a Board subpena for
all authorization cards received from employees of the
Respondent, the Sheet Metal Workers submitted a substantial
number of authorization cards, all of which were executed
subsequent to April 1. It also appears, as found by the Trial
Examiner, that no other authorization cards were signed by
employees of the Respondent on behalf of the Sheet Metal
Workers prior to the aforementioned date.
Significant, too, in the instant connection, is Adam D.
Goettl's testimony to the effect that on the occasion when the
Sheet Metal Workers was accorded recognition, its repre-
sentative, Tom Hanley, upon being asked by Goettl for proof
of the Union's majority status, exhibited certain cards which
he implied were authorizations received from employees of
the Respondent. Goettl did not examine the cards. In view of
the facts recited above, however, it is plain that these cards
t In view of this finding, we deem it unnecessary to pass upon the validity of the Trial
Examiner's holding that the Respondent's recognition of, and its execution of a contract
with, the Sheet Metal Workers violated the Act for the reason that the Respondent then had
"constructive notice of a continuing and substantial interest in representation" among its
employees by the Steelworkers. Nor need we, in our view of the case, decide whether,
as found by the Trial Examiner, the Respondent's decision to recognize the Sheet Metal
Workers stemmed solely from its desire to avoid costly conflicts with that union and its
preference of the Sheet Metal Workers over the Steelworkers.
2Of the 98 votes cast, 47 were for the Steelworkers, 49 against union representation, and
2 were challenged.
SAlthough Swisher's testimony in this connection was contradictory, we have credited
that portion of it which is most favorable to the Respondent's case. It is clear from Swisher's
own testimony, together with what appears below, however, that none of the cards handed
out by Swisher was signed by an employee before April 1.
283230 0 - 54 - 69
1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were not authorization cards signed by any of the employ-
ees involved in this case. We think it reasonable to assume
that if the Sheet Metal Workers then held sufficient valid
designations, Hanley would have relied upon them, rather
than upon the cards which he produced, on the occasion in
question.
On the basis of all the foregoing, we are satisfied that a
prima facie case was established by the General Counsel
that the bheet Metal Workers did not represent a majority
of the Respondent's employees at any time material herein.
It then became incumbent upon the Respondent or the Sheet
Metal Workers to come forward with evidence in refutation,
or to establish the Sheet Metal Workers' majority status.4
This, we find, they failed to do. In its.exceptions, the Sheet
Metal Workers rely wholly in this connection upon "the
clear testimony of Adam Goettl that a majority favored
the...[Sheet Metal Workers] before the contract was signed."
However, Goettl's testimony relied upon here was simply
to the effect that he, Goettl, became convinced of the Sheet
Metal Workers' majority status prior to April 1, as the
result of (a) repeated claims by Hanley that the Sheet Metal
Workers represented a majority of the employees; (b) talk
in the plant between employees of the Respondent and AFL
members employed by customers of the Respondent who
performed certain jobs at the Respondent's plant from time
to time;' (c) his conversations with many employees, about
20 of whom Goettl was able to name with certainty, in which
he was told by the employees that "they thought it was a
good idea to negotiate a contract with the AFL" or urged to
sign an agreement with the Sheet Metal Workers; and (d)
his being told by some employees, none of whom Goettl was
able to identify, that they had "signed up" with the Sheet
Metal Workers, and by other employees, also unidentified
in the record, that they intended to designate the Sheet
Metal Workers as their bargaining representative. In our
opinion, Goettl's testimony is wholly inadequate to counter-
balance the circumstances supporting the allegations of the
complaint on this aspect of the case.
On the basis of the entire record, we find that the Respond-
ent extended exclusive recognition to, and executed a bar-
gaining. contract with, the Sheet Metal Workers at a time
when the Sheet Metal Workers did not represent a majority
of its employees, thereby violating Section 8 (a) (2) and 8
(a) (1) of the Act. 6
2. The Trial Examiner found that the Respondent did not
unlawfully refuse to bargain with the Steelworkers on August
4 We agree with the Sheet Metal Workers, of course, that the burden of proving its lack
of a majority in this case remained on the General Counsel throughout the proceeding.
'Although admittedly unable to overhear "what was going on" between the employees
on these occasions , Goettl testified that "From my observation they [the AFL members]
had convinced our people in the plant, the majority of our people in the plant, that it was
to the best interest of them from the standpoint of getting the equipment they were pro-
ducing installed , to go along with the AFL."
6Ken-Rad Tube and Lamp Corporation, 62 NLRB 21.
INTERNATIONAL METAL PRODUCTS COMPANY 1 079
18, 1952.7 The Steelworkers excepts to this finding. We find
no merit in this exception.
Our agreement with the Trial Examiner in this respect is
based on the fact that we, like the Trial Examiner, but for
the reasons set forth hereinafter, are unable to find that the
Steelworkers enjoyed a majority status among the production
and maintenance employees comprising the appropriate unit
as of August 18. Thus: The Respondent's payroll for August
18 carries the names of 112 production and maintenance
workers. There were introduced in evidence Steelworkers'
authorization cards bearing the names of 54 of those in-
dividuals. It appears, however, that of those listed on the
pertinent payroll, 2, Henry E. Hammer, who signed a Steel-
workers' Card on July 7, 1952, quit his employment with the
Respondent just before August 18 and, as the Trial Examiner
found, was therefore not in fact an employee of the Respond-
ent on the critical date. In the circumstances, we cannot
include Hammer among those who comprise the appropriate
unit or credit his card in the Steelworkers' favor. Nor can
we, under Section 2 (3) of the Act and established Board
policy of excluding close relatives of management from bar-
gaining units, include in the unit the following 7 relatives of
the partners who compose the Respondent, all of whose
names appear on the August 18 payroll, but none of whom
signed an authorization card for the Steelworkers: Donald
Goettl, a son; Albert G. and John Goettl, brothers; Emil and
Phillip Goettl, nephews; George Thomas, a brother-in-law;
and Ernie Bauer, a nephew by marriage.8
There are 11 other proposed exclusions from the unit,9 none
of whom signed a card for the Steelworkers. As even the
exclusion of these individuals from the unit cannot affect our
ultimate finding, we shall, like the Trial Examiner, exclude
them from the unit without passing upon their precise status
during the period in question.
It is plain from all the foregoing that there were at least
93 employees in the appropriate unit on August 18 and that
53 of the authorization cards submitted by the Steelworkers
bear the names of employees in the unit. To find, in these
circumstances, that the Steelworkers represented a majority
of the employees in the unit on August 18, we must be satisfied
that on that date at least 47 of the aforementioned 53 cards
7 Although the complaint alleges an unlawful refusal to bargain by the Respondent since
July 12 1952, at the hearing , the General Counsel relied upon August 18, 1952, as the
date of the alleged unlawful refusal to bargain.
8Contrary to the Trial Examiner , there is Board precedent for excluding relatives in
the position of Thomas and Bauer from bargaining units. See Bob Tankersley , d/b/a Bob
Tankersley Produce Company , 89 NLRB 974, and Plainfield Courier - News Co., 95 NLRB
532.
There is considerable discussion in the record as to the supervisory status of certain
of these individuals . As we find that all in question must be excluded from the unit be-
cause of their relationship to management , we need not decide whether any of them are
supervisors as defined in the Act.
9J. W. Kutzly , A. C. Olin, Siegfried Delbrod , J. C. Fuqua , Walter Fuller , Raymond Schuble,
Kenneth Frey, Pete Klein, Homer Hall, Willy Byers , and Dudley Weatherspoon.
1 080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
constituted valid designations of the Steelworkers. As already
indicated, however, this essential fact has not been affirma-
tively established by the General Counsel. For the record
discloses that at least 7 of the employees" who signed
authorization cards for the Steelworkers thereafter, but
prior to August 18, also designated the Sheet Metal Workers
to represent them for the purposes of collective bargaining.
One of these employees" testified that he signed a Sheet
Metal Workers' card "a couple of days" after he signed a
card for the Steelworkers because he "believed the A.F.L.
would be a better union for everyone concerned." The testi-
mony of another12 shows that "Both cards were signed by
. . .[him] with the understanding it was for negotiations to be
made for the union there." And while there is no evidence in
the record concerning the circumstances under which the
remaining 5 duplicate cards were signed, it is noteworthy that
2 of them were executed by employees13 who later, but before
the critical date, signed authorizations for dues checkoff in
favor of the Sheet Metal Workers. Under all these circum-
stances, we are not persuaded that the 7 employees under
discussion who signed duplicate cards desired exclusive
representation by the Steelworkers rather than by the Sheet
Metal Workers on August 18. 14 When we exclude from con-
sideration the Steelworkers' cards signed by these employees,
it becomes plain that, based on the authorization cards sub-
mitted, the Steelworkers' adherents could not have exceeded
46 in number at the time of the alleged unlawful refusal to
bargain. This is not a majority of the employees in the
unit."
As the record contains no other evidence tending to establish
the Steelworkers' majority status at any time material herein,
we find no unlawful refusal to bargain with the Steelworkers
by the Respondent.16 We shall accordingly dismiss the 8 (a)
(5) allegations in the complaint.
"Clarence Grandy, Sam Forbes, John H. Behrends, Walter J. Skinner, Arthur V. Moreno,
Dolores Coleman, and Pete Moran.
it Clarence Grandy.
12 Sam Forbes.
13 John H. Behrends and Walter J. Skinner.
14As the burden was on the General Counsel to establish affirmatively the Steelworkers'
majority status, a contrary holding is not here warranted because of the fact that early
in March and on April 1 but, significantly, before the execution of the Steelworkers' au-
thorizations by these seven employees , the Respondent accorded unlawful assistance to
the Sheet Metal Workers , as found above . See, for example, Abraham B. Karron, d/b/a
Pennsylvania Handbag Frames Manufacturing Company, 41 NLRB 1454, and Harry Stein,
et al., d/b/a Ace Sample Card Company. 46 NLRB 129. Cf. Pure Oil Company, Wofford
Oil Division, 62 NLRB 1039. The Steelworkers' exception in this connection is without merit.
is We therefore need make no finding as to the validity of any of the Steelworkers' cards
not specifically dealt with herein.
i6 The request by the Steelworkers in its exceptions that the record be reopened "for
the submission of any additional testimony of fact deemed advisable " is hereby denied,
for, apart from other consideration, all the parties herein, the Steelworkers included,
were accorded adequate opportunity at the hearing to fully litigate the issues in this case.
INTERNATIONAL METAL PRODUCTS COMPANY 1081
ORDER
Upon the entire record in this case , and pursuant to Section
10 (c) of the National Labor Relations Act, the National Labor
Relations Board hereby orders that the Respondent , Adam D.
Goettl and Gust Goettl , d/b/a International Metal Products
Company, Phoenix , Arizona, its agents , successors, and
assigns, shall:
1. Cease and desist from:
(a) Contributing support to Sheet Metal Workers International
Association , Local Union 359, AFL , or to any other labor
organization of its employees.
(b) Recognizing Sheet Metal Workers International Associa-
tion, Local Union 359, AFL, as the exclusive representative
of any of its employees for the purposes of collective bar-
gaining, unless and until said organization shall have been
certified by the National Labor Relations Board as the
exclusive representative of such employees.
(c) Giving effect to its contract with Sheet Metal Workers
International Association , Local Union 359, AFL , or to any
modification , extension , supplement , or renewal thereof, or
to any superseding contract with it , unless and until said
organization shall have been certified by the National Labor
Relations Board : provided , however, that nothing herein shall
be construed to require the Respondent to vary or abandon
those wage, hour , seniority , or other substantive features of
its relations with its employees , established in performance
of such agreement , or to prejudice the assertion by the em-
ployees of any rights they may have thereunder.
(d) In any like or related manner interfering with, re-
straining , or coercing its employees in the exercise of the
rights guaranteed in 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 Sheet Metal
Workers International Association , Local Union 359, AFL, as
the exclusive representative of any of its employees for the
purposes of collective bargaining , unless and until said
organization shall have been certified by the National Labor
Relations Board as such representative.
(b) Post at its plant in Phoenix , Arizona , copies of the
notice attached hereto as Appendix A. Copies of said notice,
to be furnished by the Regional Director for the Twenty-
first Region , shall , after being duly signed by the Respond-
ent's authorized representative , be posted by the Respond-
ent immediately upon receipt thereof , and be maintained by
it for at least sixty (60) consecutive days thereafter, in
conspicuous places , including all places where notices to its
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are
not altered , defaced, or covered by any other material.
(c) Notify the Regional Director for the Twenty -first Region,
in writing , within ten (10) days from the date of this Order,
what steps the Respondent has taken to comply herewith.
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT IS FURTHER ORDERED that the complaint, insofar as it
alleges that the Respondent violated the Act by conduct other
than that found to be unlawful in this Decision and Order, be,
and it hereby is, dismissed.
APPENDIX A
NOTICE TO ALL EMPLOYEES
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, we hereby notify our employees
that:
WE WILL NOT contribute support to Sheet Metal
Workers International Association, Local Union 359,
AFL, or to any other labor organization of our em-
ployees.
WE WILL NOT recognize Sheet Metal Workers In-
ternational Association, Local Union 359, AFL, as the
exclusive representative of any of our employees for
the purposes of collective bargaining, unless and until
said organization shall have been certified as such
representative by the National Labor Relations Board.
WE WILL NOT give effect to our contract with Sheet
Metal Workers International Association, Local Union
359, AFL, or to any modification, extension, supple-
ment, or renewal thereof, or to any superseding con-
tract with it, unless and until said organization shall
have been certified by the National Labor Relations
Board: provided, however, that nothing in the Decision
and Order requires us to vary or abandon those wage,
hour, seniority, or other substantive features of our
relations with our employees, established in perform-
ance of any such agreement, or to prejudice the as-
sertion by employees of any rights they may have there-
under.
WE WILL NOT in any like or related manner inter-
fere with, restrain, or coerce our employees in the
exercise of the rights guaranteed in Section 7 of the Act.
ADAM D. GOETTL AND GUST GOETTL, d/b/a
INTERNATIONAL METAL PRODUCTS COMPANY,
Employer.
Dated .................... By ...................................................
(Representative ) (Title)
This notice must remain posted for 60 days from the date
hereof, and must not be altered, defaced, or covered by any
other material.
INTERNATIONAL METAL PRODUCTS COMPANY
Intermediate Report and Recommended Order
STATEMENT OF THE CASE'
1083
A charge having been duly filed by Steelworkers, a complaint and notice of hearing thereon
having been issued and served on the parties by the General Counsel, and an answer having
been filed by Respondent , a hearing involving allegations of unfair labor practices in violation
of the Act was held upon due notice at Phoenix, Arizona, on various dates between November
17 and December 4, 1951, both dates inclusive, before the undersigned Trial Examiner All
parties were represented at the hearing where they were afforded full opportunity to be heard,
to examine and cross-examine witnesses, to introduce evidence bearing on the issues, to
argue orally upon the record, and to file briefs and/or proposed findings of fact and conclu-
sions of law. The General Counsel, Respondent, and Sheet Metal Workers filed briefs.
The allegations with respect to unfair labor practices are, in substance, that the Re-
spondent assisted Sheet Metal Workers 2 in violation of Section 8 (a) (1) and (2) of the Act,
and refused to bargain collectively with Steelworkers in violation of Section 8 (a) (1) and (5)
of the Act. The Respondent in its answer denied the commission of the alleged unfair labor
practices
At the close of the General Counsel's case-in-chief and again after all evidence had been
taken, the Respondent and Sheet Metal Workers, respectively, made various motions to
dismiss in whole or in part the allegations of the complaint All motions upon which ruling
was reserved are disposed of by the findings and conclusions below.
Upon the entire record in the case, upon consideration of the briefs afforded me, and from
my observation of the witnesses, I make the following;
FINDINGS OF FACT
I, THE BUSINESS OF THE RESPONDENT
The Respondent is a copartnership engaged in the manufacture of air - conditioning ap-
paratus at its place of business in Phoenix , Arizona During the 12-month period ending
July 1, 1952, it shipped in excess of $ 25,000 in value of its products to purchasers at points
outside the State of Arizona.
Jurisdiction is conceded
II. THE LABOR ORGANIZATIONS INVOLVED
Steelworkers is a labor organization affiliated with the Congress of Industrial Organiza-
tions, Sheet Metal Workers is a labor organization affiliated with the American Federation
of Labor
III. THE UNFAIR LABOR PRACTICES
A. Chronology
On May 18, 1951 , a consent election was conducted by the Board ' s agents among Re-
spondent ' s employees in an appropriate unit Both Steelworkers and Sheet Metal Workers
were on the ballot Of ballots cast , 49 were cast for no union representation , 47 for Steel-
workers, and none for Sheet Metal Workers. (Case No . 21-RM-181 )
Between the election date and January 15, 1952, Sheet Metal Workers on one or more
occasions requested recognition as bargaining representative of Respondent ' s employees.
Recognition was refused inasmuch as Respondent did not then believe that 'this union had
been designated by a majority of its employees. No proof of majority was offered as a
basis for these requests
i Adam D. Goettl and Gust Goetti , d/b/a International Metal Products Company, is called
herein Respondent ; United Steelworkers of America , CIO--Steelworkers ; Sheet Metal Work-
ers International Association, Local Union 359, AFL- -Sheet Metal Workers; National Labor
Relations Board- - the Board; the General Counsel and his representative at the hearing--
the General Counsel; National Labor Relations Act, 61 Stat. 136--the Act.
2At the opening of the hearing I granted Sheet Metal Workers ' motion to intervene to the
extent of its interest in the proceeding.
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On January 15, 1952, the Respondent filed a charge with the Board alleging , in substance,
that Sheet Metal Workers was engaging in a secondary boycott of Respondent ' s products
An informal settlement disposed of the matter and the case was officially-closed in the files
of the Board ' s Regional Office under date of February 21 The settlement agreement was
dated January 24
Sometime in March the Respondent recognized Sheet Metal Workers as sole bargaining
representative and on April 1 entered into a written agreement with it A few days later
Respondent orally notified its employees of the agreement and posted copies of it in the
plant
On various dates beginning May 1, 1952 , Steelworkers demanded recognition of Respondent
and on August 18, renewing its request , offered to submit proof of majority status The
Respondent did not reply to this last offer , having previously informed Steelworkers that it
regarded its contract with Sheet Metal Workers a bar to recognition of any other labor
organization.
B. The issues
The issues are two:
1. Did the Respondent by granting recognition to Sheet Metal Workers and by making a
contract with it, render unlawful assistance to that union ? That a contract in which a labor
organization is given the status of exclusive bargaining representative , is assistance,
encouraging membership in that union, is no t open to question The issue , then, is not
whether assistance was rendered but whether it was rendered unlawfully.
2 Did the Respondent unlawfully refuse on August 18, 1952, 3 to grant recognition to
Steelworkers and bargain collectively with it9 If Respondent ' s prior recognition of Sheet
Metal Workers was valid , the contract which it executed with that union would constitute a
bar to recognition of Steelworkers on August 18, if its recognition of Sheet Metal Workers
was unlawful , it still was under no legal duty to bargain with Steelworkers on August 18
unless that union was the freely chosen representative of a majority of its employees in an
appropriate unit.
C. Sheet Metal Workers' status as bargaining representative
We have seen that Sheet Metal Workers , though on the ballot in the May 18, 1951 , election,
received no votes and that the Respondent on January 15, 1952, filed a charge alleging that
it was engaging in a secondary boycott by its refusal to install Respondent ' s products in
other shops This matter was settled informally and therefore is not before us as an issue
here, but we have the credible and undisputed testimony of Adam Goettl , one of the respondent
partners, to the effect that during the period in which the charge was filed Sheet Metal
Workers was exerting economic pressures which, obviously , were designed to convince the
Respondent of the wisdom of doing business with Sheet Metal Workers as its bargaining
representative The gravity of the situation from Respondent ' s point of view , is illustrated
in a letter which Respondent ' s attorney under date of January 7, 1952, addressed to an offi-
cial of Sheet Metal Workers This letter stated, inter alia, that the Respondent foresaw
"a contingent loss estimated at $1,500,000" because local outlets for Respondent ' s products
had refused to place their customary orders due to the impossibility of having the said
products installed . In explaining the Respondent ' s refusal to recognize and bargain with
Sheet Metal Workers at that time this same letter continues:
The simple fact of the matter is the Sheet Metal Workers International Association has
no representation at all at the plant , and because of the relatively strong position of the
CIO any unilateral action on our part with the Sheet Metal Workers would result in the
disqualification of the Sheet Metal Workers by the N.L.R.B . and an order to our client
to cease and desist any further dealings . The only possible solution is to defer any
action until the Sheet Metal Workers obtain enough strength to either win another
consent election , or to make a substantial showing of interest to the Board in order
that they could claim a majority.
This letter apparently did not achieve the desired result for the filing of the charge, as
stated above , followed on January 15, and it was not until February 21 that the case was
3Although earlier demands for recognition had been made by Steelworkers, this is the
date the General Counsel relies on for establishing its majority.
INTERNATIONAL METAL PRODUCTS COMPANY 1035
formally closed in the files of the Board's Regional Office. Recognition of Sheet Metal
Workers as bargaining representative followed only a few weeks later, it being Adam Goettl's
testimony that recognition was granted some 3 weeks prior to the execution of a contract on
April 1. The point of inquiry at this juncture is why this Respondent, who in the prior year
had shown such caution in the matter of recognition, 4 and whose attorney in January had
stated unequivocally that Sheet Metal Workers had no representation at all among Re-
spondent 's employees-- in contrast to Steelworkers ' "relatively strong position" -- now, in
March, without recourse to the Board ' s processes and without requiring or being proffered
any proof of majority representation , extended exclusive recognition to Sheet Metal Workers
and on April 1 executed a bargaining contract with it
Adam Goettl testified that recognition was granted on claims of Sheet Metal Workers'
international representative , Handley, of majority representation , and because he had become
convinced on talking to Respondent ' s employees that a majority of them now desired Sheet
Metal Workers as their bargaining representative 5 Aside from the fact that the Respondent's
good faith or lack of it is not , in my opinion , a controlling factor in the case, such testimony
clearly is of insufficient substance to establish either that Sheet Metal Workers was the
choice of a majority or that Respondent had a stable basis for assuming this to be the fact.
A more logical explanation for the act of recognition stems from what may reasonably be
assumed to have been the Respondent 's desire to avoid further conflicts with a labor or-
ganization which had so lately, in the words of its attorney , threatened it with a contingent
loss estimated at $1,500,000, and its admitted preference of this union over Steelworkers
as its employees ' bargaining representative.
This preference is set forth explicitly in the letter which Respondent ' s attorney wrote to
Sheet Metal Workers on January 7, in which it is stated that the Respondent " campaigned
vigorously " in the election of May 18 and directed " its entire attack against the CIO." The
letter continues:
Because sheet metal workers install the product produced by our client, evaporative
air coolers , we, of course, would prefer to deal with the Sheet Metal Workers rather
than the CIO. That was our primary purpose in defeating the CIO at that time
. After the election the CIO dropped all outward organizational activity wherever
possible , and without prejudicing our client under the N.L.RB. we did our utmost to
boost the Sheet Metal Workers....
It is true that this letter was written under the stress of difficulties the Respondent was then
encountering with Sheet Metal Workers, and no evaluation of its contents would be fair which
did not take this into account, but there can be no doubt that Respondent 's economic interests
were , in its opinion , better served through recognition of Sheet Metal Workers. All reason-
able inferences arising from Adam Goettl' s testimony are entirely consistent with the
January 7 letter in this respect.
A preference for one labor organization over another and a declaration of assistance does
not, without more, establish that unlawful assistance was actually rendered , but it does
establish motive and requires a stricter scrutiny of the circumstances under which recogni-
tion was actually granted to this favored union than might otherwise be the case Such a
scrutiny should embrace the fact that Steelworkers , which came within a few votes of being
chosen bargaining representative at the polls on May 18, was prevented under the Act from
again having its representative status tested at the polls until after the elapse of a year,
that it filed such a petition on May 12, 1952, and was then met with the fait accompli of the
contract executed between Respondent and Sheet Metal Workers In its Midwest Piping
doctrine (Midwest Piping and Supply Co , 63 NLRB 1060, as modified William Penn Broad-
casting Co., 93 NLRB 1104; Roegelein Provision Co , 99 NLRB 830) the Board has found
unlawful assistance in the execution of a contract with 1 of 2 or more competing unions
while a petition for representation is pending and where the petition has a character and
timeliness which creates a real question concerning representation Such a doctrine does
not extend to the facts of this case because no petition for representation was pending at the
41n response to Steelworkers' demand for recognition and before it had knowledge that
Sheet Metal Workers asserted a similar claim, Respondent , on February 26, 1951, filed an
employer 's petition for certification with the Board 's Regional Office.
slt was Goettl 's further testimony that at the time recognition was requested Handley
held in his hand certain cards which he, Goettl , did not examine , being already convinced
that this union represented a majority . Since all of this union 's authorization cards were
subpenaed and all of them were dated subsequent to April 1, it is obvious that Handley did
not have authorization cards in his possession at the time recognition was granted.
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time the contract was made ; such a petition would have been premature because, regardless
of the existence of a question of representation, an election could not have been held until
after the elapse of a year it would seem , however , that in insuring to employees the complete
freedom of choice contemplated by the Act, and in giving effect to the spirit as well as to
the letter of the 12-month limitation , the Board might well regard a substantial showing at
the polls, such as was made by Steelworkers in this case, constructive notice of a continuing
and substantial interest in representation during the 12-month period that must elapse before
a new election could be ordered--notice which an employer could ignore only at his peril
Otherwise, labor organizations competing in an election where the majority vote is for no
union, in order to avoid the risk of being eliminated from the field before a new petition for
representation could be processed, would have to continue their organizational activity
throughout the year and accompany it by repeated and continuous demands for recognition
This would go far toward defeating the purpose underlying the 12-month waiting period
required by the Act
In the case at bar , regardless of whether or not Steelworkers ' representative at the close
of the election informed the Respondent that it would again seek certification after the elapse
of a year, 6 I would find such constructive notice, because of the presumption of a continuing
substantial interest flowing from its prior authorizations and showing at the polls, t and
Respondent's cognizance of such continuing interest as is evidenced by its letter of January
7 in which it referred to the "relatively strong position" of Steelworkers And I would hold,
without more, that because it had such constructive notice the Respondent acted unlawfully,
and gave unlawful assistance to Sheet Metal Workers, when, without ascertaining whether
Steelworkers still chose to assert representational claims, it recognized Sheet Metal Workers
and made a contract with it.
Counsel for Sheet Metal Workers, in his brief, argues forcefully and persuasively that the
burden of proving unlawful assistance rests on the General Counsel, and from this premise
he appears to move to the further argument that this burden can be discharged only by proof
that Sheet Metal Workers had not been designated by a majority of employees at the time
recognition was granted. I am mindful that no such character and quantum of proof is re-
quired in cases coming under the Midwest Piping doctrine because the decisions there are
not based on the employer's lack of good faith or the lack of a paper majority, but on an
overall policy which prevents circumvention of the secret ballot where a question of repre-
sentation exists and where the Board's processes have been invoked by the filing of a petition
for certification. By analogy and for reasons stated, I would hold here that the General
Counsel has discharged his burden if on a predominance of the evidence it is shown that a
real question of representation existed at the time Respondent and Sheet Metal Workers
acted "unilaterally" in the matter, or--to state the proposition in different terms--if on a
predominance of the evidence a reasonable doubt exists as to Sheet Metal Workers' repre-
sentative status at the time recognition was granted If such reasonable doubts exist, clearly
the rights of employees under the Act can be afforded their proper safeguards only by
6Lawrence Bench, staff representative of Steelworkers, testified that after the ballots
had been counted, he discussed with Goettl and Respondent's attorney the outcome of the
election, and informed them "that they could rest assured" that Steelworkers would be back
the following year to try again. He further testified that about March 15, 1952, in a telephone
conversation with Respondent's attorney, he informed the latter that Steelworkers "definitely"
would renew its representational claims within the "year's statute of limitations " Re-
spondent 's counsel testified that he recalled no such statement being made at the polls by
Bench , but further testified that a tense situation existed at that time and he was "not
absolutely certain of everything that was said there." Bench's testimony having a positive-
ness lacking in Kleindienst's denial and both being, I believe, credible witnesses. I find that
the statement was made . Kleindienst 's recollection of the later telephone conversation was
that it occurred after recognition had been granted Sheet Metal Workers and on being in-
formed that Respondent was negotiating a contract with this union, Bench said, "You can't
do that to me." I have no reason to doubt Kleindienst 's version of the date of the conver-
sation, and there is not enough difference in the two versions of its content to matter.
7 Under normal Board procedures Steelworkers would have been required to show a
substantial interest in representation in order to have its petition for representation processed.
This fact plus its showing at the polls raises a presumption of continuing substantial interest
in representation , because revocation of prior authorizations may not be inferred from
its failure to win the election. Further, for reasons stated in the text above , I do not believe
that revocation could be inferred , on the facts of this case , from authorizations later given
Sheet Metal Workers.
INTERNATIONAL METAL PRODUCTS COMPANY 1087
restoring the status quo and later resolving the question of representation , as it arises,
through the Board 's normal procedures for determining such matters . On these premises
and on the factual situation thus far related , I have no doubt the General Counsel has dis-
charged his burden , but there is more. -
The General Counsel placed in evidence authorization cards submitted to it by Sheet Metal
Workers in response to a subpena , all of which were signed subsequent to April 1 , the date on
which the contract was executed. Admittedly, no authorization cards were executed prior to
April 1. Counsel for Sheet Metal Workers argues that authorization cards represent only one
of many forms of designation and that the fact they were obtained after recognition had been
granted raises no presumption that there were not prior designations, of an equally valid
character, predating recognition. In the abstract this argument is quite sound, but as applied
to the facts of this case is not controlling for this is not a matter to be studied in vacuo but
in relation to the other facts in the case, and when so studied we may reasonably inquire
why, if prior authorizations in some other form existed, no mention was made of them at
the time recognition was requested and granted: this would certainly have been the normal
procedure, and when an employer as cautious in matters of representation as this employer
was shown to be when confronted by a demand from Steelworkers in the previous year, so
radically departs from previously established norms of conduct, the Board is entitled to
much more in the way of explanation than appears here. The doubts thus engendered as to
Sheet Metal Workers ' majority at the time it sought and was granted recognition, when
related to Steelworkers' showing at the polls and the fact that within a matter of weeks
following the execution of the contract Steelworkers obtained a very substantial number of
new authorizations , compels the conclusion that a real question of representation existed
and the doubts thereby raised of Sheet Metal Workers' representative status are by no means
dispelled by Adam Goettl's surmise based on conversations with employees In my opinion
the same conclusions would be warranted even if Sheet Metal Workers were able to show a
paper majority as of the date of recognition, for expertise in the field of labor relations is
of little value if it has not taught us that where there are competing labor organizations
employees frequently "play it safe" by signing the authorization cards of both in the instant
situation, the application of expertise is not, however, required, for this proposition is amply
demonstrated by the cards received in evidence showing dual authorizations and by the
admissions of numerous witnesses that at one time or another within the period of a year
they signed authorizations for both unions. Under this posture of the case I do not know of
any way it could be proved by competent evidence that as of the date of its recognition Sheet
Metal Workers was the freely chosen representative of a majority, or that it was not. 8 That
issue could have been properly settled, and the rights of employees under the Act afforded
their proper safeguard, only by a secret ballot, and the Respondent by its act of recognition
having foreclosed recourse to the ballot at an appropriate time, must be held to have given
unlawful assistance , in violation of Section 8 (a) (1) and (2) of the Act.9
D. The representative status of Steelworkers
Applying the same order of reasoning to the second issue in the case, and assuming without
finding that Steelworkers ' authorization cards were signed by a majority of employees, I do
not believe that they afford a proper basis for certifying it as sole bargaining representative,
as I am asked to do, or are sufficient evidence of majority representation that Respondent's
refusal to recognize and bargain with it on August 18 may properly be found to have been
unlawful. Many of the signatories of these cards also signed cards for Sheet Metal Workers,
and the testimony of a substantial number of them, in instances where the authorization
cards were imperfectly executed and parol evidence allowed, leaves in doubt their actual
choice in the matter of representation. It is argued that Sheet Metal Workers' authorizations
signed subsequent to April 1 do not constitute evidence of representation because it must be
presumed that such authorizations resulted from Respondent's unlawful assistance of that
union, There is no question that such assistance encouraged affiliation with that union, but
this does not seem to me to exclude the possibility of valid authorizations, and therefore the
8 The incompetency of oral testimony for this purpose is amply demonstrated by the
quality of the testimony given by some score of employees relative to their intentions in
the matter of representation
9It may be argued that had Respondent refused recognition, and Sheet Metal Workers had
held a majority of authorizations , the Respondent would have acted at its peril. The argument
has no validity . Only if Respondent had ascertained that Steelworkers no longer claimed a
representational interest , would its good faith in refusing recognition to Sheet Metal Workers
have been placed in issue.
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
issue of representation remains unresolved . Proceeding among more orthodox lines, how-
ever , the ambiguities attending a substantial number of Steelworkers ' claimed authorizations,
lead me to doubt that it had valid authorizations from a majority of employees in an appro-
priate unit when it requested recognition on August 18.
The General Counsel introduced a total of 54 authorization cards bearing names of em-
ployees. Of these, 1, Henry E. Hammer, had quit his employment prior to August 18 At
most , therefore , there were 53 cards bearing names of persons having employee status on
August 18. As of that date Respondent's payroll listed 112 names. Of these, the General
Counsel would exclude the following 7 for the reason that they were relatives of the manage-
ment: Albert, Donald D., Emil, John, and Phillip Goettl, brother, son, nephew, brother, and
nephew, respectively, George Thomas, a brother-in-law; and Ernie Bauer, the husband of a
niece.
I doubt not that blood is thicker than water though, figuratively speaking, it probably is not
as thick now as it used to be, since our more advanced sociologists tell us that the family
unit is no longer the close-knit community it once was, but Congress itself has excluded the
son of an employer from its definition of employee. There is Board precedent, also, for
excluding brothers and nephews, and the total of these exclusions comes to 5, leaving 107
names. I am bound to say , however , that I think it is carrying it a bit far to bring in-laws
under this rule of thumb, and since the line has to be drawn somewhere, all earthly creatures
being to some degree kin, I draw it here. The General Counsel has proposed other exclusions
which, if allowed, would reduce the list to 96 names, but these involve problems of greater
density and I do not propose to discuss them, for granting they were all allowed I still am
unable to find that Steelworkers had the requisite number of valid authorizations on the
crucial date.
Of the authorizations received in evidence 33 are conceded to be bona fide authorizations.
Of the remaining 19, some bear dates not affixed by the signatory nor established by the
signatory's nor any other competent testimony; some bear names of employees in the
employees' handwriting but not in the place reserved for a signature, and the testimony
of some of these leaves in doubt what intent accompanied their action in placing their names
at the top of the cards; still others admittedly signed authorizations for Sheet Metal Workers
prior to August 18 and subsequent to having signed cards for Steelworkers. There follows a
recapitulation of the evidence on a sufficient number of these to illustrate why Steelworkers'
majority is at best speculative
Audrey Branter testified that he did not read the card before signing it and did not know
until later that it was a "CIO" card. As to intent, he testified: "I wasn't aware that that
was any particular union. I thought we were signing the card to have the union in the plant."
Clarence Grandy signed a card but did not place a date on it and had no definite recol-
lection of the date He testified that by August 1 he had changed his mind and wanted Sheet
Metal Workers to represent him.
Sam Forbes signed a Steelworkers' card dated April 19, 1952, but testified that he did
not affix the date to the card; that he also signed a Sheet Metal Workers' card in May or
June 1952; and that "both cards were signed by me with the understanding it was for nego-
tiations to be made for the Union there."
Leo Burton Cox wrote his name on a Steelworkers' card but not in the place reserved
for signature, and did not affix the date appearing thereon. He also signed a card for Sheet
Metal Workers dated May 5, 1952. He testified that he did not read Steelworkers' card be-
fore placing his name on it and testified both that he did and did not intend thereby to author-
ize Steelworkers to represent him.
Robert Koble, Jr., testified concerning his execution of an authorization card for Steel-
workers: "I will tell you the truth. There were so many things going around, I just signed
any card that came along."
Merlin J. Books, who wrote his name at the top of a Steelworkers' card but did not affix
his signature in the place reserved for it, and who did not read the card before placing his
name on it, testified that he did not intend thereby for Steelworkers to represent him and
when asked what he had in mind, testified, "Well, to tell you the truth, I didn't have much
of anything in mind."
Melvin Booker signed a Steelworkers' card but it bears no date and the witness had no
definite recollection of the date on which he signed it. This employee signed two cards for
Sheet Metal Workers dated May 8 and May 28, respectively.
John H. Behrends affixed his name to a Steelworkers' card but not in the place reserved
for signature and he did not affix the date appearing on the card: April 16, 1952. His testi-
mony relative to intent is ambiguous. This same employee signed two Sheet Metal Workers'
cards, dated May 5 and May 29, 1952, respectively.
INTERNATIONAL METAL PRODUCTS COMPANY -1089
Edward Zavorek and James R. King signed cards but there is no competent evidence
establishing when they signed them
The General Counsel attempted to cure the defects as to dates, where the signatory did not
affix the date and was unable to verify the date, through the testimony of Steelworkers' repre-
sentative, Lawrence Bench, and certain lists kept in his office. Bench did not witness the
signing of the cards, did not affix the dates appearing on them, did not compile the lists
kept in his office, and his testimony fails to establish the authenticity of these lists with
respect to dates, when they were compiled or when they were mailed to the union's office in
Los Angeles I am appreciative of the obvious embarrassment suffered by witnesses who
were questioned concerning their authorizations and purported authorizations in the presence
of representatives of both unions, and much of their hesitancy and confusion may be attributed
to this fact. However, when authorization cards are imperfectly executed to the extent
that the intention of those whose names appear thereon is made doubtful, or the date of their
execution is doubtful, parol evidence may not be excluded without prejudice nor ignored when
taken. In the light of the entire testimony I would be unable to say what the choice of the
employees with respect to representation would have been on August 18 had they been
afforded the opportunity to express that choice by secret ballot It appears to me that on
that date as well as on April 1, a real question of representation existed Accordingly, I find
that the Respondent did not unlawfully refuse to recognize and bargain with Steelworkers on
and after August 18.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in connection
with the operations of the Respondent described in section I, above, have a close, intimate,
and substantial relation to trade, traffic , and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce and the free flow of
commerce.
V THE REMEDY
Having found that the Respondent by its recognition of, and execution of a contract with,
Sheet Metal Workers, violated Section 8 (a) (1) and (2) of the Act, it will be recommended
that it cease and desist therefrom and take certain affirmative action designed to effectuate
the policies of the Act.
The effect and consequence of Respondent's unlawful assistance to Sheet Metal Workers
constitute a continuing obstacle to the free exercise by the employees of their right to
self- organization and to bargain collectively through representatives of their own choosing
Since the contract of April 1, 1952, perpetuates Respondent's unlawful assistance, it will be
recommended that the Respondent cease giving effect to it, as well as to any extension,
modification, renewal, or supplement thereof, and withdraw and withhold all recognition of
Sheet Metal Workers, or any successor thereto, unless and until it shall have been certi-
fied by the Board
Nothing herein shall be construed as requiring Respondent to vary any wage, hour, senior-
ity, or other substantive feature of its relations with its employees which Respondent has
established in the performance of this contract
On the basis of the foregoing findings of fact, and upon the entire record in the case, I
make the following.
CONCLUSIONS OF LAW
1 Sheet Metal Workers and Steelworkers are, respectively, labor organizations within
the meaning of Section 2 (5) of the Act
2. By interfering with, restraining, and coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act , Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (a) (1) of the Act
3. By recognizing Sheet Metal Workers as sole bargaining representative , and executing
a contract with it , thereby rendering support to a labor organization , Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (a) (2) of the Act
4. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
5. Respondent has not refused to bargain collectively with Steelworkers in violation of
Section 8 (a) (5) of the Act
[Recommendations omitted from publication ]