Mosier Safe Co.

National Labor Relations Board - Board Decisions

Feb 15, 1974

209 N.L.R.B. 71 (N.L.R.B. 1974)

AIRMATICS SYSTEMS 71
Airmatics Systems Division of the Mosier Safe
Company and International Union of Tool, Die
and Mold Makers and Local 102 , international
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America , Party to the
Contract . Case 22-CA-5383
February 15, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KFNNEDY, AND
PENELLO
On September 4, 1973, Administrative Law Judge
Samuel Ross issued the attached Decision in this
proceeding. Thereafter, counsel for Respondent filed
exceptions and a supporting brief, and counsel for
the party to the contract filed exceptions 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
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,
findings,' and conclusions2 of the Administrative
Law Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Airmatics Systems
Division of the Mosler Safe Company, Wayne, New
Jersey, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order.
i The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect Standard Drv Wall Products,
Inc, 91 NLRB 544. en`d. 188 F 2d 362 (C A 3, 1951) We have carefully
examined the record and find no basis for reversing his findings We have
further considered Respondent 's contention that the Administrative Law
Judge has evidenced a bias or at least an appearance of bias against
Respondent's position. We have carefully considered the record and the
attached Decision and reject these charges of bias alleged by the
Respondent
2 We agree with the Administrative Law Judge that Respondent violated
Sec 8(a)(1) and (2) of the Act by recognizing the party to the contract on
February 23, 1973, at a time when there existed a real question concerning
representation of Respondent 's toolroom employees As the Administrative
Law Judge found , that question was raised by a combination of the demand
for recognition of the Charging Party made by certain of the toolroom
employees on January 26, 1973. by the picketing for Charging Party which
took place between January 26 and February 2, 1973, and which continued
even after the employees had signed cards for the party to the contract; by
the petition for an election filed by the party to the contract on February 2,
1973. which listed the Charging Party as an organization known to have a
representative interest in the employees pursuant to which the Regional
Director issued on February 9. 1973. a notice of hearing set for February 27.
1973. by the credited testimony of two employees' regular wearing of
buttons for the Charging Party after the picketing ended, and by the
credited testimony of the toolroom foreman that he communicated certain
of the employees' favorable sentiments toward the Charging Party to
Respondent% officals before recognition was granted the party to the
contract In such circumstances , we agree with the Administrative Law
Judge that Respondent was duty-bound to withhold recognition of either
union until the question concerning representation was finally determined
under the procedures provided by the National Labor Relations Act Its
failure to do so was therefore a violation of the Act Midwest Piping &
Suppli Co. Inc , 63 NLRB 1060 however, we deem unnecessary to such a
resolution the following conclusions of the Administrative Law Judge and
therefore we do not pass on his conclusions that (I) certain of the
authorization cards obtained by the party to the contract were tainted by
the remarks made at the time they were signed. (2) Charging Party has
"specialized experience" in the representation of toolroom employees, and
(3) Respondent was motivated to recognize the party to the contract
because of a preference for dealing with one union rather than multiple
unions Since the Charging Party's claim raised a real question concerning
representation. Respondent was prohibited, for whatever reason, from
signing a contract with any union until that question was properly resolved
DECISION
STATEMENT OF THE CASE
SAMUEL Ross, Administrative Law Judge: This case was
tried in Newark, New Jersey, on June 25, 26, and 27, 1973,
on a charge filed by International Union of Tool, Die and
Mold Makers (herein called IUTDM) on April 5. 1973,
amended on May 11, 1973, and a complaint issued by the
General Counsel on May 24, 1973. In brief, the complaint
alleges that the above-named Company (the Respondent
herein) violated Section 8(a)(1), (2), and (3) of the Act by
recognizing Local 102, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America (herein called Teamsters) as the exclusive collec-
tive-bargaining representative of its toolroom and mainte-
nance cage employees, and by entering into a collective-
bargaining agreement with Teamsters covering the terms
and conditions of employment for the said employees,
notwithstanding that, at the time of such recognition and
contract execution, Teamsters did not represent "an
untainted and uncoerced majority" of said employees, and
that there was then pending before the Board "a question
concerning representation [of said employees] involving
IUTDM." The Respondent filed an answer to the
complaint which denies some of the substantive allegations
and the commission of unfair labor practices.
Upon the entire record,' including my observation of the
witnesses and their demeanor, I make the following:
FINDINGS OF FACT
1. COMMERCE
The Respondent is a New York corporation which is
engaged in the manufacture, sale, distribution, and service
of security equipment at various plants, including one
located in Wayne, New Jersey, the only facility involved in
i Pursuant to a motion made by the Respondent which was granted
during the hearing, the record in this case includes the transcript of the
hearing and the exhibits in Airmaucs Systems Division of the Mosler Safe
Compant. Employer, and International Union of Tool, Die and Mold Makers,
Petitioner, Case 22-RC-5598
209 NLRB No. 6
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this proceeding In the operation of the said business, the
Respondent in the last 12 months, a representative period,
admittedly sold and shipped products valued in excess of
$50,000 from its plant in Wayne, New Jersey, to customers
located outside the State of New Jersey. The Respondent
admits and I find it is engaged in commerce and in
operations affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent also admits that Teamsters is a labor
organization within the meaning of Section 2(5) of the Act,
and I so find. The Respondent denies that IUTDM is such
a labor organization, but I find to the contrary, on
undisputed testimony, that IUTDM is an organization in
which employees participate which exists for the purpose
of dealing with employers concerning wages, rates of pay,
hours of employment, and condition of work for employ-
ees. I therefore find that IUTDM is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The History of Labor Relations at the
Respondent's Wayne, New Jersey, Plant
The Respondent first acquired the Wayne, New Jersey,
facility involved in this proceeding in about 1955. At that
time, "the hourly paid employees engaged in maintenance
and production work" were represented by Local No. 274,
United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States and
Canada (herein called Plumbers). Upon its acquisition of
the Wayne plant, the Respondent recognized Plumbers as
the collective-bargaining representative of the employees in
the above-described unit, and it thereafter entered into
successive collective-bargaining agreements with Plumbers
covering the terms and conditions of their employment. In
1969, Plumbers was decertified as the representative of said
employees, and in the same year, following an election
conducted by the American Arbitration Association, the
Respondent recognized Teamsters as the representative of
the said employees. Since 1969, the Respondent has
entered into two successive collective-bargaining agree-
ments with Teamsters covering the terms and conditions of
employment of:
All hourly paid employees engaged in maintenance
and production work at the Company's facility at 415
Paterson-Hamburg Turnpike, Wayne, .:ew Jersey
07470, excluding all office clerical employees, watch-
men, guards and supervisors as defined in the National
Labor Relations Act.
The most recent such contract is for a 3-year term which
began on December 22, 1972, and terminates on December
20, 1975. It contains a union-security provision which
requires all employees in the unit to become members of
2 Before the events charged herein as unfair labor practices , the hourly
paid employees engaged in maintenance work covered by the Respondent's
contracts with Teamsters admittedly referred only to janitorial employees
and porters
Teamsters within 30 days after the effective date of the
contract or hire, whichever occurs later. There are about
225 employees covered by that agreement.
At the time that the Respondent entered into both its
contract with Teamsters, the Company had in its employ a
number of salaried tool-and -die makers and other highly
skilled employees who worked principally in its "tool and
die room" under separate supervision. The Respondent
also then had in its employ two salaried maintenance men
who worked in its "maintenance cage ," an area separate
from the toolroom , under the separate supervision of its
plant engineer . It is undisputed that neither of these two
employee groups was a part of the unit covered by the
Respondent's contracts with Teamsters, that neither had
previously been represented by any labor organization, and
that there is no history of collective bargaining on their
behalf . 2 Moreover , during the contract negotiations be-
tween the Respondent and Teamsters in December 1972,
Teamsters expressed no interest in the representation of
either the toolroom employees, or those who worked in the
maintenance cage, and the Respondent likewise made no
effort to expand the unit coverage of the proposed contract
to include these employees , that is, not until the toolroom
employees sought to be represented by IUTDM.
B. The Current Events on Which the Complaint
Herein is Based
I The strike for recognition of IUTDM
IUTDM is a relatively new labor organization which
began a campaign to represent toolroom employees in
Northern New Jersey in January 1973.3 On January 25,
David B . Bogert , an apprentice tool-and-die maker
employed by the Respondent since January 1970, attended
a meeting of IUTDM at which the employees voted to
strike their respective employers for recognition . Bogert
communicated this information to his fellow toolroom
employees , and on the following morning (Friday, January
26) they struck and started to picket the Respondent's
Wayne plant with homemade signs which stated, "Tool
Makers Union on Strike" and "Tool Makers Strike."
About 8 of the Respondent's i1 toolroom employees
participated in the strike and picketing on the first day of
the strike.
About 8:30 a.m, on that first day of the strike, George
Vetan , the Respondent's personnel director , came out to
the picket line and asked three of the strikers, Dave Bogert,
George Bogert , and James Morgan , "what was going on,"
and "why we were on strike." George Bogert and Morgan
replied, that they were "on strike for recognition for the
IUTDM , the International Union of Tool , Die [and] Mold
Makers." Vetan said, "I never heard of this outfit." George
Bogert pointed to a large button which he was wearing,
approximately 3-1/2 inches in diameter, on which the
name of IUTDM was printed. Vetan asked, "What do you
want me to do?" The employees suggested that Vetan
S Prior to the hearing in this case, IUTDM had been certified by the
Board as the exclusive collective-bargaining representative of the toolroom
employees of about 20 to 25 employers
Unless otherwise noted , all dates hereinafter refer to 1973
AIRMATICS SYSTEMS
called IUTDM, and Dave Bogert supplied Vetan with
IUTDM's address and telephone number.4 The Respon-
dent admittedly made no effort to contact IUTDM.
On Monday, January 29, after the weekend, the strike
and picketing by the toolroom employees resumed, and it
continued daily thereafter to and including Friday,
February 2. Starting with January 29, the strikers also
carried signs obtained from IUTDM which bore the
legend: "IUTDM on Strike" During the course of that
week, all of the Respondent's remaining toolroom employ-
ees (with the exception only of Mike Gorkowski who quit
the Respondent's employ on January 31 in accordance
with a prior announcement) participated in the strike and
picketing on behalf of IUTDM, and no one worked in the
toolroom on February 2, the last day of the strike.5
2. The intervention by Teamsters into IUTDM's
recognition campaign
Pursuant to instructions issued by Teamsters president,
Ernest Terrien, the production and maintenance employ-
ees represented by Teamsters continued to work during the
strike by the toolroom employees for recognition of
IUTDM as their representative.", In addition, starting with
the first day of the strike, Teamsters chief steward, Albert
Pecci, stationed himself in the driveway to the plant and
instructed all truckdrivers who approached that Teamsters
"was not on strike," and he waved them across the picket
line. At about the same time, Personnel Director George
Vetan ordered an advertisement to be inserted in the local
newspapers for experienced "tool makers." The ad ap-
peared in the newspapers on 3 successive days beginning
with Sunday, January 28. 71
On Tuesday, January 30, Teamsters president, Terrien,
4 The findings above are based on the credited testimony of Dave
Bogert, George Bogert, and James Morgan Vetan admitted that he was told
by the pickets that they were striking for recognition of IUTDM. He denied.
however, that he accepted Dave Bogert's offer to supply him with the name,
address, and telephone number of IUTDM, and he testified that he
specifically rejected Bogert's offer Based on demeanor, and implausible
and self-contradictory testimony by Vetan in other respects. I credit his
version of this conversation only to the extent that it accords with that of the
three employees
5 The findings regarding the total participation by the toolroom
employees in the strike for recognition of IUTDM are based on the credited
testimony of Dave Bogert and Respondent's then toolroom foreman Henry
Antomuk 7 he Respondent produced no payroll or other records. obviously
available to it, to disprove the testimony of Bogert and Antomuk in this
regard I therefore accord no probative value to the hearsay testimony of
Perry A. Newcomb, the Respondent's director of industrial relations.
regarding telephone reports which he assertedly received at his office in
Cincinnati, Ohio. from Edward Voitas, the Company's director of
operations at Wayne. :o the effect that this strike and picketing did not have
the full support and participation of the toolroom employees. I note in this
regard that Voitas was not called to testify by the Respondent although he
admittedly was available
6 The two salaried and unrepresented "maintenance cage" employees
also continued to work during the strike
7 See G.C E'th. 7.
Vetan testified that the ad was inserted in order to secure a replacement
for Mike Gorkowski who was quitting on. January 31 Although the timing
of the insertion of the ad. and the announcement of plural job openings,
suggest that the Respondent might have been motivated by other
considerations, such as replacement of the strikers, 1 nevertheless believe
Vetan's explanation. and I credit his testimony in this regard
S A number of witnesses testified that this incident occurred on
73
bought breakfast for a number of striking and picketing
toolroom employees at Sorenson's Diner near the plants
During the meeting which ensued, the strikers complained
about the failure of Teamsters to honor their picket line,
and Terrien invited them to "join a good strong union,"
and thereby eliminate the need for "worry" "about the
trucks [not] stopping." Terrien also told the strikers that
they no longer had jobs -with the Respondent, that the
Company was advertising in the newspapers for their
replacements, but that if they joined Teamsters, they would
"get their jobs back." Ternen further told the strikers that
if they joined Teamsters he would negotiate "a separate
contract" for them, and they would not lose any of their
present benefits or salary status.9 Ternen finally told the
striking employees that if they signed Teamsters authori-
zation cards, he would present them to the Company and
would petition for an NLRB election at which they could
vote "Teamsters in and the Toolmakers Union out" At the
conclusion of the meeting, George Bogert accepted a
supply of blank Teamsters' authorization cards from
Terrien, and undertook to solicit signatures thereto from
the Respondent's toolroom employees.10
3. The acquisition by Teamsters of authorization
cards from the toolroom and maintenance cage
employees
That same day, after the meeting in Sorenson's Diner
with the striking toolroom employees, Teamsters Chief
Steward Pecci solicited Frank Soltis and Thomas Dakake,
Respondent's two salaried and previously unrepresented
maintenance cage employees, and obtained their signatures
to Teamsters' authorization cards. ii Also on the same day,
George Bogert commenced soliciting toolroom employees
Wednesday, January 31 However, in the light of documentary evidence
that a number of Teamsters' authorization cards admittedly signed the same
day, and a written demand made by Teamsters that day for recognition, are
dated January 30. 1 conclude that those who testified that this incident
occurred on January 31 were in error in this regard.
As salaried employees , the toolroom employees enjoyed a number of
benefits that were greater than those available to the production and
maintenance employees represented by Teamsters For example, the
toolroom employees were not required to punch a timeclock-production
employees were. toolroom employees took their vacations whenever they
preferred-production employees all took their vacations during the first 2
weeks in July. and toolroom employees were allowed more paid sick leave
than production employees
1O The findings above are based on a composite of the testimony of Dave
Bogert and James Morgan which I credit I do not credit George Bogert's
initial testimony that Ternen told the strikers , "We're all probably going to
get fired," because it is inconsistent with his later credited testimony (which
corroborates that of Dave Bogert and James Morgan) that Ternen said, "if
we signed the Teamster cards that we would have our jobs hack." i note in
this regard that undoubtedly based on these statements of Ternen . a rumor
to the effect that the strikers considered their employment as terminated
came to the attention of Respondent's management , and this prompted
Personnel Director Vetan to assure George Bogert later that week that the
strikers had not been fired, that the rumor to that effect was not true, and
that they were free to end their strike and return to work at any time
Because of self-contradictions , implausibility , and demeanor. I regard the
testimony of Terrien and Pecci as generally unreliable and worthy of little
credence I therefore credit their testimony in respect to this meeting only to
the extent that it accords with my findings above.
ii Insofar as the record discloses , these two employees never joined
IUTDM or participated in the toolroom employees ' strike for recognition of
IUTDM as their representative
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to sign Teamsters' authorization cards, and obtained the
signatures of Paul Martin and Russ Decker.
That evening at about 6 or 7 p.m., the toolroom
employees held a meeting at James Morgan's house to
discuss what Terrien had told them in the diner that
morning. The meeting was attended by 8 of the Respon-
dent's 11 toolroom employees.['- Varying opinions were
expressed at the meeting as to whether the interests of the
toolroom employees would be better served by Teamsters
or IUTDM representation, and several employees voiced
their disbelief in Terrien's promise to get them a separate
contract if they signed up with Teamsters. George Bogert
said "we were fired and if we joined the Teamsters we
would get our jobs back." 13 Teamsters' authorization cards
were thereupon signed at the meeting by Dave Bogert,
Frank Bogert. George Bogert, Frank Re, Steve Molnar,
and James Morgan.i4
4. Teamsters' demand for recognition and petition
for certification
On January 30 about 5 p.m., Teamsters President Temen
went to the Respondent's plant and met with Edward
Voitas, the Company's director of operations. Terrien
asked Voitas "to recognize Local 102 [Teamsters] as the
bargaining agent for these people," and he told Voitas that
Teamsters "had a majority and 1 was willing to show them
[the authorization cards] to him." At the same time,
Ternen gave Voitas a written "message" on Teamsters'
stationery which read as follows: 16
To The Airmatics Systems of The Mosier Safe Co. At
415 Paterson-Hamburg Tpk. Wayne, New Jersey 07470
DATE Jan 30, 1973
SUBJECT Recognition of Local 102 Teamster
I.B.T.C.W.H. to represent Toolmakers and mainte-
nance [sic ] employees by a card count in place of an
NLRB elections [sic].
An agreement to be entered into to designate Local 102
as sole bargaining agents for these maintance [sic]
employees and toolmakers.
Ernest Terrien
By Local 102 Pres.
Voitas replied that he could not give Terrien an answer at
that time because he would have to check with counse1.16
The following day (January 31), Ternen made a second
written demand on Voitas for recognition as the represent-
ative of "Toolmakers maintainance [sic] machinist and
others not in any Union." 17 His second demand likewise
was rejected by the Respondent.
Thereafter, on February 2, Teamsters filed a petition
with the Board for certification as the exclusive representa-
tive of the Respondent's employees in the following unit:
All toolmakers, toolroom, stock handlers and mainte-
nance men.
The said petition was assigned Case 22-RC-5272.18 It
alleged, inter alia (par. 1la), that there was "a strike or
picketing at the employer's establishment," and in para-
graph 11 c, that the said strike and picketing was being
conducted "by and on behalf of International Union of
Tool, Die and Mold Makers of 1544 Irving Street, Rahway,
N.J., since January 25, 1973." The petition further alleged
(par. 12) that IUTDM was an organization which had
"claimed recognition as representative" and was "known
to have a representative interest." In connection with the
said petition, Teamsters also filed with the Board the 12
authorization cards which it had obtained as described
above.19
5. The Respondent's decision to extend
recognition to Teamsters
Although practically all of the Respondent's toolroom
employees signed Teamsters' cards on January 30 and 31
as described above, they nevertheless continued to strike
and to picket for recognition of IUTDM, and they did not
end their strike or return to work until February 5, and
then only after they had been notified that Teamsters had
filed a petition for an NLRB election. Following their
return to work, Dave Bogert continued to wear a large
IUTDM button in the plant, and James Morgan conspicu-
ously displayed a like button in the plant on his toolbox 20
12 Dave Bogert, James Morgan, Steve Molnar. Paul Martin , George
Bogert, Frank Bogert, Joseph Scepan, and Frank Re
13 The quotes above are from the credited testimony of Dave Bogert
George Bogert testified in this regard that he "told the employees that Ernie
Terrien had gave [sic ] me a bunch of Teamster cards and if we signed the
Teamster cards we would have our Job back and we would have a stronger
union by belonging to the Teamsters. '
14 George Bogert's card (Teamsters Exh. 4) is dated January 14 He
testified, however, that he signed the card at the meeting in Morgan's home,
and "I Just put the wrong date down, I guess "
In addition to the cards obtained as described above, George Bogert also
solicited and secured Teamsters' cards from toolroom employees Michael
Einreinhof and Joseph Scepan These cards (Teamsters Exh 8 and 10) are
dated January 30 and 31. respectively.
15 Employer's Exh 4 in Case 22-RC-5598.
16 The findings above are based on Ternen's uncontroverted testimony
which is credited to this extent only. Terrien also testified that at the time he
made this demand for recognition, he had in his possession 12 authorization
cards 2 signed by maintenance cage employees, and 10 signed by toolroom
employees. According to both Terrien and Pecci, the toolroom employees'
cards were turned over to Ternen on January 30, just before the latter made
his demand on Voitas for recognition of Teamsters Contrary to Terrien's
and Pecci's testimony , I find that at the time of Terren's demand, he had no
authorization cards signed by any toolroom employees. I base this
conclusion not only on George Bogert's credited testimony that he first
turne4 over the cards signed by toolroom employees to Pecci on the
morning following the meeting in Morgan 's house, but also on the quite
evident fact that , when Terrien made his demand for recognition the
meeting in Morgan's house at which six of the cards were signed , had not
yet even convened In the light of the foregoing, I regard the testimony of
Terrien and Pecci regarding the possession of 12 signed cards before the
January 30 demand for recognition was made as pure fabrication, and 1
regard their testimony in general as worthy of little credence or reliance.
17 Employer's Exh 5 in Case 22-RC-5598.
"I G.C. Exh 4.
19 Teamsters Exhs 2 through 13
20 The findings above are based on the credited testimony of Dave
Bogert, James Morgan, George Bogert, and Respondent 's then toolroom
foreman Henry Antoniuk Eugene Verha, the Respondent's manager of
manufacturing engineering whose jurisdiction includes the toolroom,
testified that he could not recall seeing Dave Bogert wear an IUTDM
button after the strike ended , but Verba admitted seeing such a button on
AIRMATICS SYSTEMS
Near the end of the week of the toolmakers' strike,
George Bogert admittedly told Operations Director Voitas
that "the toolroom was going into the Teamsters Union,"
and he told Verba, the manager of manufacturing
engineering, that "the toolroom employees had all signed
cards for the Teamsters." At the time he made these
statements , however, all of the toolroom employees were
still striking for recognition of IUTDM with IUTDM
signs. Moreover, as noted above, after the strike ended, the
Respondent received a copy of Teamsters' petition for
certification which named IUTDM as a union having an
interest in the representation of the employees for whom
Teamsters sought certification. The Respondent thus
obviously knew that IUTDM still had at least the support
of some of its toolroom employees. The Company
accordingly undertook to ascertain which of the Unions
had the greater support of these employees.21 In this
regard, commencing with the termination of the toolmak-
ers' strike, both Verba and Personnel Director Vetan asked
Toolroom Foreman Antoniuk on several occasions "what
was the division in the toolroom about one union as
opposed to the other." Antoniuk at first reported that he
"thought they were split right down the middle, as far as
the allegiance to the two unions." Subsequently, he
reported to them that the toolroom employees whom he
supervised "were tending to lean more toward the
toolmakers union." 22
On February 9, the Regional Director of the Board for
Region 22 issued a notice of representation hearing in the
case initiated by the Teamsters' petition (Case
22-RC-5572), and served copies thereof by registered mail
upon the Respondent, Teamsters and IUTDM. The said
notice scheduled the hearing on the Teamsters' petition for
February 27.
During the week following its receipt on February 5 of a
copy of Teamsters' petition for certification, Respondent
decided that it preferred "to have one union to deal with
rather than multiple unions." That preference, in turn,
caused the idea to crop into the mind of Industrial
Morgan's toolbox. Verha assertedly never reported the latter fact either to
his superior Voitas, or to Personnel Director Vetan. In the light of
Respondent's conceded interest in the views of its employees in respect to
the two Unions, I place no credence in Verba's testimony that he did not
report Morgan's conspicuously displayed interest in IUTDM to his
superiors, and I likewise do not credit Verba's asserted lack of observation
of Dave Bogert 's button
21 According to Industrial Relations Director Newcomb, some of the
Respondent's officials were then of the opinion "that maintaining the
nonunion status [of these unrepresented employees ] was the proper
objective, and there was [then] a question of whether that [objective] had
any chance at all."
22 These findings are based on Foreman Antoniuk's testimony which I
credit as reliable both in general and in these respects Verba admitted that
commencing with the return to work of the toolroom employees on
February 5, he inquired of Antomuk about "twice a week" "how the
employees in the toolroom were feeling regarding the union question"
Verha also conceded that when he first made that inquiry about "two or
three days after they [the toolroom employees] came back." Antoniuk told
him that "it looked like a 50-50 proposition with regards to the toolroom
favoring one union or the other" Verba also testified that on later similar
inquiries , Antoniuk gave him "basically the same information "
industrial Relations Director Newcomb testified that following the
termination of the strike of the toolroom employees for recognition of
IUTDM, he received co.itinuing reports from Operations Director Voitas
that "the Teamsters assertions of representing a majority of the employees
appeared to be valid, and that there was a total lack of any evidence of any
75
Relations Director Newcomb that the toolroom and
maintenance cage employees "might not be an appropriate
unit ," and that they could possibly be regarded as an
accretion to the production and maintenance unit already
represented by Teamsters.2•5 Newcomb accordingly "ar-
ranged" for Operations Director Voitas "to have his staff
... get together the facts concerning any interrelationship
between the employees" to support this "overall unit"
theory, and to thereby avert the possibility of having to
deal "with any other union." In addition, Newcomb then
checked with Respondent's counsel Collins about "the
legal point of view of [whether] having these people in one
unit was appropriate." On February 14, a few days after
the Respondent's receipt of the Board's notice of represen-
tation hearing on the Teamsters petition, Newcomb and
Mr. Collins visited the Wayne plant professedly "to
explore in depth the question of the unit requested in the
petition, [and] to assess as far as we could the strength of
the Teamsters and the other union involved." 24 Newcomb
assertedly was supplied by Voitas, Verba and Vetan with
information concerning "the interrelationship of the work
activities of the employees in the production unit with the
employees in the die shop and the maintenance crib." He
thereupon on February 14 decided, notwithstanding that a
hearing was scheduled for February 27 on the Teamsters'
petition for representation, and that IUTDM was a named
party in interest in that proceeding, to recognize Teamsters
as the representative of the toolroom and maintenance
cage employees on the theory that "we had a valid
accretion situation . . . and that it was probably inappro-
priate to be a separate unit." In furtherance of that
decision, Newcomb requested Operations Director Voitas
to "setup a meeting" with Teamsters. On or about
February 15, Voitas arranged for a meeting with Teamsters
Secretary-Treasurer Merker. The latter allotted 2 days.
February 22 and 23, to.this meeting, the first dates he had
available because of his busy schedule of negotiations.25
support for . . . IUTDM " I place no credence in or probative value on this
hearsay testimony. As previously noted. Voitas was not called to testify
although he admittedly was available Moreover, in the light of Antoniuk's
contrary reports to Verbs and Vetan. %nd the open display of IUTDM
buttuns in the plant . I regard it as incredible that Voitas would have made
such reports to Newcomb I therefore place no credence in Newcomb's
testimony in this regard Cf. International Union, United Automobile,
Aerospace and Agricultural Implement Workers of America (UAW) v
tv L R.B, 459 F.2d 1329 (C A D C., 1972), 2 Wigmore, Evidence, Sec. 285
(3d. ed. 1940).
23 Newcomb testified , " I was surprised when I found out .. that they
[the toolroom employees ] were never really in the [production and
maintenance ] unit." In the light of Newcomb's position as Respondent's
industrial relations director , I regard his professed lack of knowledge of the
unrepresented status of the toolroom employees as beyond belief, and I do
not credit him in this regard
24 Seefn 22,supra
25 Except for the last sentence which is based on Merker 's testimony
which I credit to this extent only, the findings and quotes above are based
on testimony and admissions elicited from Newcomb. Newcomb conceded,
albeit reluctantly and after much prodding, that it was "highly likely" that
the preference for dealing with "one union" caused the "overall unit" and
accretion theory to "crop into my mind " Newcomb also testified that "The
Teamsters were not privy to what we were going to discuss [at the meeting
which he asked Voitas to arrange ]." I place no credence or probative value
in this latter hearsay and incompetent testimony , and I believe the converse
to be true 1 base this conclusion on the following considerations - Teamsters
(Continued)
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. The so-called negotiations between Respondent
and Teamsters
Pursuant to the prior appointment made on about
February 15 by Operations Director Voitas with Teamsters
Secretary-Treasurer Merker, Newcomb and Voitas met
with Merker and Terrien at or about 8 a.m on February 22
at the Howard Johnson Motor Lodge in Wayne, New
Jersey. According to Newcomb. Terrien first "impressed
upon the company that he did represent a majority of the
people, [and] that he had cards from all but one of the
employees in the toolroom and maintenance cage area." 26
Newcomb then purportedly told Merker and Terrien that
he did not regard a separate unit for these employees as
appropriate, and he assertedly showed Merker "some facts
and figures" about the "interrelationship" of these employ-
ees with those in the production and maintenance unit
already represented by Teamsters. Merker, on the basis of
an "independent investigation" allegedly conducted by
him, testified that he agreed "that this was something that
could be an accretion." Although both parties thus were in
agreement on this issue, the discussion of this subject
(according to Newcomb) consumed the entire morning of
February 22, and "continued into the afternoon period."
At the conclusion of this lengthy (5-hour) discussion of this
subject, Merker assertedly repeated, "that the Company's
position had merit, [and] that the separate unit did not
appear to be appropriate." Then, although the Respondent
had previously made known its readiness to recognize
Teamsters for the 13 employees as accretions to the
existing unit represented by Teamsters, Merker assertedly
asked (according to Newcomb), "if the Company would
entertain an accretion situation into the P & M unit," and
Newcomb assertedly replied, "I thought we would." The
parties then adjourned to permit them "to do some
homework" regarding the manner in which they would fit
these employees "into the [existing] labor agreement." This
had twice demanded recognition as the representative of the toolroom and
maintenance cage employees, and a hearing on this petition already had
been scheduled Merker was a busy man, but he nevertheless allotted 2 days
to this meeting It stretches credulity beyond the breaking point to believe
that he would have arranged this meeting without asking the purpose
therefor, or that he would have allotted 2 days of his busy schedule unless
he knew that the meeting was for contract negotiations In respect to this
testimony of Newcomb, I fiiid the words of Judge Learned Hand in Dyer v
MacDougall, 201 F.2d 265, 269 (C A 2), quoted with approval in N L R B
v Walton Manufacturing Compam 369 U S 404, 408 (1962), to be
particularly appropriate
For the demeanor of a witness
may satisfy the tribunal, not only that the witness' testimony
is not true, but that the truth is the opposite of his story, for the denial
of one, who has a motive to deny, may be uttered with such hesitation,
discomfort, arrogance or defiance, as to eive assurance that he is
fabricating , and that, if he is, there is no alternative but to assume the
truth of what he denies "
In many other respects, Newcomb's testimony on occasion was implausible,
at times contrary to admissions elicited from other witnesses for the
Respondent and with his own testimony, andin addition, he frequently
hedged, equivocated, and evaded direct answers to questions which he
regarded as inimical to the Respondent's interest I therefore regard his
testimony as generally unreliable, and I credit it only when it constitutes an
admission against the Respondent 's interest , or when it accords with other
testimony which I regard as reliable
26 Obviously in the light of his prior decision to treat the toolroom and
was necessary, according to Newcomb, because the
existing contract "did not have the classifications to cover
the [toolroom and maintenance cage] people," and also
because "we had to develop new [wage rate] ranges
because the ranges that they would have would be higher
than any existing ranges in the [current] agreement." The
parties accordingly met again the following morning at the
same place, agreed on new job classifications and wage
rate ranges for the toolroom and maintenance cage
employees, and then executed an agreement extending the
coverage of Respondent's existing contract with Teamsters
to include the said employees. The said agreement,''7
obviously prepared by a lawyer, consists almost entirely of
a recital of all the reasons for regarding the toolroom and
maintenance cage employees as accretions to the existing
production and maintenance unit represented by Team-
sters, and except for new job classifications and wage rate
ranges applicable to the so-called newly accreted employ-
ees, it extends the existing labor agreement between
Respondent and Teamsters to the said employees.213
7. IUTDM's petition for certification
On February 23, following the execution of the aforede-
scribed agreement, Terrien filed a request with the Board's
Regional Office to withdraw the Teamsters' petition in
Case 22-RC-5572, in which IUTDM was named as a party
in interest, and which was scheduled for hearing on
February 27. Upon notification of the Teamsters' request,
IUTDM filed a petition on February 26 for certification as
the representative of the Respondent's employees (Case
22-RC-5598) in the identical unit previously requested in
the prior Teamsters' petition.29 A hearing on IUTDM's
petition was conducted on March 6. At the said hearing,
Teamsters appeared as an intervenor, the Respondent and
Teamsters asserted their agreement of February 23 as a
contract bar to IUTDM's petition, and they contended
maintenance cage employees as accretions to the existing production and
maintenance unit of 225 employees, no proof of majority among the
"accreted" employees was required In any event. Teamsters had no
difficulty in assuaging the Respondent's compunctions, if any, in this
regard It did this in two ways (1) by telling Respondent that it had cards
from all but one of the allegedly accreted employees- the Respondent never
saw the cards nor asked to see them, and (2) by engaging, on the very
morning of the previously arranged negotiations meeting, in a token
"strike" and picketing in which only 3 of the 13 affected employees
participated-the rest refused to join in the strike, although asked-and the
225 P & M employees also worked, notwithstanding the picket line of their
union According to Terrien and Merker, the asserted reason for this
"strike" was that Respondent "had refused to recognize me," and that "we
were tired of waiting of being [sicI recognized as the bargaining agent" I
place no credence in these assertions inasmuch as the "strike" and picketing
continued for the entire day on February 22, notwithstanding that Terrien
and Merker learned early in the morning shortly after the picketing began
(even if it did not know so before (see In. 25. supra) ) that the Respondent
intended to recognize Teamsters as the representative of these employees as
accretions to the unit already represented by it All of the foregoing
persuades me that the reason for the Teamsters' token strike was not that
asserted by Terrien and Merker, to obtain recognition as the collective-
bargaining agent of the 13 employees , but solely to lend an aura of
legitimacy to the so-called negotiations of Respondent and Teamsters.
27 Employer's Exh 2 in Case 22 -RC-5598.
25 As a result of this "agreement," the "accreted employees" lost their
salary status, are now required to punch a timeclock, and they also lost
some of the other fringe benefits which apply only to salaried employees
y the Teamsters' withdrawal request was then approved by the
Regional Director on February 27
AIRMATICS SYSTEMS
that the unit sought by the petitioner was inappropriate
because the employees named therein were accretions to
the production and maintenance unit covered by the
Respondent's successive collective-bargaining contracts
with Teamsters. In addition, both Teamsters and Respon-
dent contended that the inclusion of the two maintenance
men with the toolroom employees rendered the "craft unit"
sought by I UTDM's petition as inappropriate for collec-
tive-bargaining purposes. In this regard, 1 UTDM moved at
the conclusion of the hearing on its petition to amend the
unit sought therein by excluding the two maintenance cage
employees therefrom.
The Regional Director has taken no further action on
IUTDM's petition pending the outcome of the complaint
which he issued against Respondent in this case.
C. Concluding Findings
1. The applicable legal principles
The principal issue presented in this case is whether the
Respondent violated Section 8(a)(2) of the Act by
recognizing and executing a contract with Teamsters for
the toolroom and maintenance cage employees at a time
when there was a real question concerning the representa-
tion of said employees in an appropriate unit. Section
8(a)(2) of the Act sets out a "clear legislative policy to free
the collective bargaining process from all taint of an
employer's compulsion, domination or interference."
International Association of Machinists. Tool and Die
Makers Lodge 35 v. N.L.R.B., 311 U.S. 72, 80 (1940). In
furtherance of that policy. "[i]t has repeatedly been held
that an employer may not intrude in matters concerning
the self-organization of his employees. He must refrain
from all interference. . . . Especially is this so where the
adherence of the employees is being sought by rival labor
organizations. N. L.R.B. v. Jones & Laughlin Steel Corp.,
301 U.S. 1." Harrison Sheet Metal Company v. N. L. R. B.,
194 F.2d 407, 410 (C.A. 7. 1952). For where there is a real
question as to which of two or more unions the employees
would prefer as their representative, any action by an
employer "which demonstrates in any way a preference for
one union over the other . . . interfer[es] with the
fundamental right of [the] employees to choose their own
representative," Southern Conference of Teamsters v. Red
Ball Motor Freight, Inc., 374 F.2d 932, 938 (C.A. 5, 1967).
Accord : N. L R. B. v. Jack W. Sellers, et. aL, d/b/a Coca
Cola Bottling Company of Sacramento, et aL, 346 F.2d 625,
631 (C.A. 9,1965); IV L.R.B. v. National Container Corp.,
211 F.2d 525, 536 (C.A. 2, 1954).
The Board's Midwest Piping doctrine,30 which conceded-
ly controls the determination of the principal issue in this
case,31 is "a direct outgrowth of the parent doctrine of
employer neutrality in matters relating to employees'
choice of a bargaining representative " N.L.R. B. v. Nation-
al Container Corp., supra, 211 F.2d at 536. According to this
Midwest Piping and Supply Co, Inc. 63NLRB 1060 (1945)
si Resp br,p 17
32 The Midwest Piping doctrine has been consistently applied by the
Board, and its application has received judicial approval in a number of
factual settings N i_R B v. Henry Heide, Inc , 219 F.2d 46 (C A. 2. 1955),
cert denied 349 U.S 952. N L R B v Burke Oldsmobile. Inc, 288 F 2d 14
77
doctrine , "an employer faced with conflicting claims of two
or more rival unions which give rise to a real question
concerning representation may not recognize or enter into
a contract with one of those unions until its right to be
recognized has finally been determined under the specific
procedures provided by the Act ." Retail Clerks Union,
Local 770 aff/w Retail Clerks International Association v.
N.L. R. B., 370 F.2d 205 , 207 (C.A. 9, 1966). The danger
inherent in an employer 's premature recognition and
bargaining with one of several competing unions is, of
course, that the "execution of a contract with a union does
constitute support of it, for `once an employer has
conferred recognition on a particular organization it has a
marked advantage over any other in securing the adher-
ence of employees , and hence in preventing the recognition
of any other.' N.L.R.B. v. Pennsylvania Greyhound Lines,
Inc., 1938 , 303 U.S. 261, 268 ... "N.LR.B. v. Signal Oil
& Gas Co., 303 F .2d 785 , 787 (C.A. 5, 1962). See also,
International Ladies' Garment Workers Union , AFL-CIO v.
N.L.R.B., 366 U.S. 731 (1961 ); Elastic Stop Nut Corporation
v. N.L.R. B., 142 F .2d 371, 380 (C .A. 8, 1944), cert. denied
323 U .S. 722 ; Intalco Aluminum Corporation v. N.LR.B.,
417 F.2d 36, 39 (C.A. 9, 1969) 32
Thus, the fundamental premise underlying the Midwest
Piping doctrine is that when two or more competing unions
can each marshal evidence demonstrating that they have
support from a substantial proportion of the unit employ-
ees, the representative status of any of the unions, even one
possessing evidence purporting to demonstrate that it is
supported by a majority of the employees, is rendered so
doubtful that the employer must remain neutral until the
question of representation is finally resolved , preferably
through the Board's election processes . And, where the
contest between two unions has not yet " `crystalized' into
a manifest preference" on the part of the employees, the
employer's reliance upon the purported majority status of
one of the rival unions is insufficient to negate the
existence of a real questioning concerning representation.
Oil Transport Company v. N L. R . B, supra, 440 F .2d at 665.
2. The question concerning representation
Although the Respondent concedes that the Board's
Midwest Piping doctrine is "the controlling general princi-
ple of law" applicable to this case, it contends that it was
not faced with a real question concerning representation,
and it therefore did not impinge on the doctrine when it
recognized and executed a contract with Teamsters "since
they represented an uncoerced majority of the toolroom
and maintenance cage employees." The Respondent
bottoms this contention on the further assertions that it
was "never presented" with "a substantial claim [by
IUTDM] to represent the . . . [said] employees," and that
in any event IUTDM's claim for representation was made
for "an inappropriate unit" of employees who are "a
proper accretion," and they therefore "could lawfully be
(C A. 2, 1961), N L R B N, National Container Corp, supra, N L R B v
Midtown Service Co, Inc, 425 F 2d 665 (C A. 2. 1970), N LR B v Signal
Oil & Gas Co. 303 F 2d 785 (C A 5. 1962), N L R B v. Allied Food
Distriliution, Inc, 421 F2d 188 (CA 5, 1969), enfg 169 NLRB 783, Oil
Transport Company v N L R B, 440 F 2d 664 (C A. 5.197 1)
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
added to the existing unit [represented by Teamsters]
without affording them a self -determination election."
I find , contrary to these contentions , that at all material
times Respondent had knowledge of a substantial interest
and claim by its toolroom employees for representation by
IUTDM, that Respondent recognized Teamsters as the
representative of said employees , not because the Team-
sters represented an uncoerced majority of the tool and die
room employees-I find that Teamsters did not-but only
because of Respondent 's admitted preference for not
dealing with another union as the representative of these
employees . Finally, I find that a unit of toolroom
employees is an appropriate craft unit for the purpose of
collective bargaining , that IUTDM is a union which
specializes in representing such employees , and that the
Respondent therefore was faced with a real question
concerning representation when it bypassed the pending
scheduled Board hearing on the Teamsters ' petition for
representation (in which IUTDM was a party), and
extended recognition and a contract to Teamsters, one of
the two competing unions.
a. The Respondent 's knowledge of the substantial
claim of its toolroom employees for representation by
IUTDM
The Respondent's argument in support of its contention
that it was "never presented" with a substantial claim by
IUTDM to represent the toolroom employees runs in sum
as follows:
No official of IUTDM ever requested recognition as
their representative. During the week of January 29 while
the toolroom employees were on strike, they "switched
allegiance" from IUTDM to Teamsters. After the strike
ended, "except for the claim of two employees that they
occasionally displayed buttons for the IUTDM, there was
absolutely no activity in support of . . . IUTDM." On
February 10, the employees voted at a meeting "to stay
with the Teamsters" and not IUTDM. A majority of the
employees thus "had decided that Local 102 [Teamsters]
could best represent their interests." Based on the
foregoing "objective evidence," the Company had every
reason to believe that the employees supported Teamsters
Local 102, and inasmuch as "an uncoerced majority of the
Company's employees freely chose to be represented by
Teamsters," it was "lawful" for Respondent to extend
recognition to it.33
The record as credited hereinabove does not support
these contentions, and I regard them as without merit. As
found above, all of the Respondent's toolroom employees
(except one who was quitting) participated in a strike and
33 Resp. br., pp. 18-3 I.
34 Valley Broadcasting Company, 87 NLRB 1144, 1145, In. 2.
35 Industrial Relations Director Newcomb testified in this regard as
follows:
Q. What was the reason you told Mr. Voitas not to extend
recognition [to Teamsters] in the light of the statement [assertedly]
made to you by Mr. Voitas that they [Teamsters] represented a
majority of the toolroom employees?
A. Considering the fact that they [the toolroom employees] had
been picketing that same week for another union [IUTDM ], there was
a question in my mind as to whether they [Teamsters ] did [represent a
majority ] or not.
picketing of the Respondent's plant from January 26. to
and including February 2 for recognition of IUTDM. On
the first day of the strike, they told Respondent's Personnel
Director Vetan of this objective of their strike. The
Respondent thus obviously then had knowledge of the
"substantial interest" of its toolroom employees in repre-
sentation by IUTDM. No further demand for recognition
by an official of IUTDM was required or was necessary to
apprise Respondent of that interest.34 Thereafter, although
these same employees signed authorization cards for the
Teamsters on January 30 and 31, they continued neverthe-
less to strike and picket for recognition of IUTDM. This
ambivalent conduct of the toolroom employees concededly
caused the Respondent to reject the Teamsters demands
for recognition as their representative, notwithstanding the
offer of Teamsters to submit to "a card count in place of
an NLRB elections [ SIC]."35 As previously noted, the
toolroom employees continued their strike for recognition
of IUTDM, and did not return to work until Teamsters
filed a petition for certification as their representative. The
Teamsters petition named IUTDM as an organization
which "claimed recognition as representative" and which
was "known to have a representative interest ." Under all
these circumstances, it is quite evident that the Respondent
had no reasonable or justifiable basis for believing that
IUTDM did not have a substantial interest in representing
the toolroom employees.
Indeed the record discloses quite to the contrary that the
Respondent had knowledge of the continuing substantial
interest of these employees in representation by IUTDM,
notwithstanding that they had signed authorization cards
for the Teamsters, and that the latter had demanded
recognition based thereon. That knowledge was implicit in
the reason assigned by Newcomb for rejecting the
Teamsters' recognition demands.36 Such knowledge like-
wise was implicit in the repeated inquiries admittedly
addressed twice a week after the strike ended by Verba, the
Respondent's manager of manufacturing engineering, to
Henry Antoniuk, the Respondent's toolroom foreman, as
to how these employees stood on the "union question." As
found above on Antoniuk's credited testimony, he told not
only Verba, but also Personnel Director Vetan, that at first
the employees "were split right down the middle," but
later, before the Respondent recognized Teamsters, they
"were tending to lean more towards the toolmakers
union." 37
The Respondent argues that it was justified in believing
that the toolroom employees "switched allegiance" and
decided that Teamsters "could best represent their interests
because they voted at a meeting held on February 10" "to
Q. There was a question in your mind as to what?
A. There was a question in my mind as to whether, in fact, they
[Teamsters] represented a majority [of the toolroom employees].
cis; See fn. 35, supra.
47 The Respondent urges that Antoniuk's testimony in this regard should
not be credited, but I regard it as reliable, and as noted above (see fn. 22,
supra ) Verba substantially corroborated much of Antoniuk's testimony
regarding these reports.
Respondent also denied that Antoniuk is a supervisor within the meaning
of the Act, but inasmuch as the undisputed record discloses that he had
authority to hire and fire, and that he did hire several employees, I find
contrary to the denial that he was such a supervisor.
AIRMATICS SYSTEMS
stay with the Teamsters." According to the credited
testimony of Dave Bogert in respect to this meeting which
was attended also by the two maintenance cage employees,
it was called so that the employees in the toolroom and the
maintenance cage could decide whether to vote for
Teamsters or IUTDM at the Board election which they
expected to be forthcoming. The vote, according to Bogert
whom I credit, was 3 for IUTDM, 3 (including the two
maintenance cage employees) for Teamsters, and 6 or 7
still undecided.-38 Thus, contrary to the Respondent's
contention that this meeting is "objective evidence" that
the employees favored representation by Teamsters, all
that it discloses is that as of February 10 a substantial
percentage of the toolroom employees still favored repre-
sentation by IUTDM, and that a real question concerning
their representation existed. There is, moreover, no
evidence whatsoever that the Respondent knew about this
meeting when it recognized Teamsters as the representative
of these employees, or that it based its decision to do so
thereon.
The Respondent further contends that inasmuch as "an
uncoerced majority" of the Company's employees freely
chose to be represented by Teamsters, "it was lawful" for
Respondent to extend recognition to it. Under the
circumstances which prevailed in this case, this contention
has no merit either in law or in fact. Thus, even assuming
that Teamsters represented "an uncoerced majority" of the
toolroom employees, in the light of the concurrent
substantial interest of these employees in representation by
IUTDM, under the Board's Midwest Piping doctrine, the
Respondent could not lawfully recognize either of these
unions until the question concerning their representation
was resolved under the specific procedures provided by the
Act 39 Moreover, the Teamsters did not represent an
uncoerced majority of the tool-and-die room employees.
As found above, a substantial number of the toolroom
employees who were then striking for recognition of
IUTDM signed authorization cards for the Teamsters after
they were falsely told, first by Teamsters President Terrien,
and then by George Bogert while soliciting the cards for
Teamsters, that they no longer had jobs with the Respon-
dent, but that if they joined Teamsters, they would "get
their jobs hack." In the light of this material and
fraudulent misrepresentation. the cards obtained by this
devise can hardly be regarded either as "uncoerced," or as
resulting from the "free choice" of these employees.
Moreover, since these same cards were rejected by
Respondent on January 30 and 31 as unreliable evidence
of Teamsters majority status, and motivated it to then deny
the Teamsters' demands for recognition, I find it difficult
to understand how an NLRB receipt for the very self same
31, According to Soltis and Dakake, the two maintenance cage employees
who admittedly voted `or Teamsters at this meeting , the vote favored the
latter union Soltis test;fied that 60 percent voted for Teamsters, 30 percent
for IUTDM, and 10 percent were undecided Dakake testified that "more
than half," "a majority," raised their hands for Teamsters On cross-
examination , Soltis, although asked, was unable to name a single toolroom
employee who voted for Teamsters, and he changed the asserted percentage
in favor of Teamsters to 55 percent. Similarly, Dakake, although asked,
could not recall the name of a single toolroom employee who assertedly
"put up their hands for the Teamsters " Under the circumstances. I place no
reliance in the accuracy of their testimony regarding this vote
as Oil Transport Company v N L R B, supra
79
cards could later on February 23 be regarded as evidence
that "clearly, an uncoerced majority of the Company's
employees freely chose to be represented by the Team-
sters." 40
I conclude from all the foregoing and from Newcomb's
admissions (see fn . 25, supra) that Respondent's recogni-
tion of Teamsters for these employees was motivated, not
on reliance on the Teamsters cards or on the token
picketing of three employees for Teamsters on February
22,41 but only by the Respondent's admitted preference for
dealing with Teamsters rather than with multiple unions. I
further find that at all times material herein, the Respon-
dent had knowledge of the substantial interest of these
employees in representation by IUTDM.
b. The appropriate unit
As found above, the Respondent was presented with and
was aware of the continuing rival claim of IUTDM to
represent its toolroom employees when it recognized and
contracted with Teamsters to represent both the toolroom
employees and the maintenance cage employees. That
claim of IUTDM, did not, however, automatically raise a
real question concerning representation and make applica-
ble the Board's Midwest Piping doctrine, unless the unit of
employees sought by IUTDM was appropriate for collec-
tive bargaining under the Act 42 The General Counsel
contends that the Respondent's toolroom employees
constitute such an appropriate unit. The Respondent
contends that "a separate unit of toolroom employees or a
separate unit of toolroom and maintenance cage employ-
ees is an inappropriate unit for bargaining since the
toolroom and maintenance cage employees are a proper
accretion to the unit currently represented by the Team-
sters." I find, contrary to the Respondent's contention, that
in the light of Board precedent, the Respondent's toolroom
employees which IUTDM sought and seeks to represent,
constitute an appropriate unit for collective bargaining
under the Act .43
The unit in question consists of approximately 10
employees, including five tool-and-die makers, one appren-
tice tool-and-die maker, two toolroom machinists, one
experimental sheet metal machinist, and one tool-crib
attendant. Many of these employees have worked for the
Respondent in these categories since before 1969 when
Teamsters succeeded Plumbers as the collective-bargaining
representative of the Company's production and mainte-
nance employees. However, they were not then included in
the coverage of the 1969 contract between Respondent and
Teamsters nor in its 1972 renewal, and there has been no
history of collective bargaining in their behalf. Indeed,
W Br, p 31
11 Newcomb admitted that the decision to recognize Teamsters was
made on February 14. and that "it was in no way influenced" by the
Teamster February 22 "strike "
12 Shea Chemical Corporation, 121 NLRB 1027 1029 Accord William
Penn Broadcasting Crmipani. 93 NLRB 1104
41 See section I 11, B, 7 of this Decision, supra In the light of this finding.
I deem it unnecessary to determine whether the Respondent's two
maintenance cage employees who were organized by Teamsters only
should he included in this unit, or in the production and maintenance unit I
regard that determination to be one for the Regional Director in Case
22-RC-5598
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
before IUTDM organized them, and they struck Respon-
dent for recognition of IUTDM as their representative,
there admittedly was neither a suggestion nor a notion by
either Teamsters or Respondent that these employees
constituted an accretion to the unit of Respondent's
employees which the Teamsters already represented.
The Respondent's toolroom employees work in an
enclosed area separated from that in which its production
employees work, and they have their own, separate, lockers
located in the toolroom area. The work of the toolroom
employees consists of making tools and dies , and doing
prototype and development work. Toolroom employees
require a working knowledge of trigonometry, an ability to
work at close tolerances of a few thousandths of an inch,
and to read sophisticated blueprints. The apprenticeship
program of the State of New Jersey in which the
Respondent participates requires the apprentice to serve an
8,000 hours, over a 4-year period on various machines to
qualify as a journeyman tool-and-die maker.44 Toolroom
employees all furnish their own tools. There are a number
of machines in the Respondent 's plant that are located and
used exclusively in the toolroom which have no counter-
part in the production areas. These include a surface
grinder, a diamond grinding wheel , a filing machine, a 50-
ton hydraulic arbor press, a quarter milling machine, and a
furnace. The toolroom employees work under the separate
supervision of a toolroom foreman who is responsible to
Verba, the manager of manufacturing engineering. Prod-
uction employees work under nine different foreman who
work under the supervision of Vincent Soleo, the plant
superintendent.45 Toolroom employees spend 85 percent to
95 percent of their time working in the enclosed toolroom,
and on the occasions when they work in production areas,
they are still under the supervision of their own toolroom
foreman. The work done by toolroom employees in the
production areas consists of troubleshooting , readjusting
or resetting a tool , not in production . There is no evidence
of any transfers , or of any line of progression, from
production worker to toolroom employee. The work of the
production employees is generally repetitive, that of the
toolroom employees for the most part is not. Toolroom
employees possess higher skills and they accordingly are
paid substantially higher wage rates than production
employees.46 Indeed, the absence in the December 1972
contract between Respondent and Teamsters of job
classifications and wage rate ranges which would be
appropriate for the toolroom employees, admittedly made
it necessary for them to negotiate such job classifications
and wage rate ranges on February 23, when the Respon-
dent and Teamsters extended their existing contract to
cover the toolroom employees. In addition, until the
Respondent extended its contract with Teamsters for the
production and maintenance employees to include the
toolroom employees in its coverage, there were also
substantial differences in the working conditions and
fringe benefits of the two groups. Thus, production
workers were hourly paid employees and are paid every
44 See G.C. Exh. 3.
45 The toolroom foreman does not work under or report to Soleo.
46 Compare the wage rates Employer's Exh. I with Employer 's Exh. 2 in
Case 22-RC-5598.
11 Even in the latter case , production employees are barred from the use
week-toolroom employees were salaried and paid twice a
month ; production employees punched a timeclock-tool-
room employees did not ; the two groups had different
hospital and pension plans and different vacation sched-
ules, and the toolroom employees were entitled to more
paid sick leave days than production workers. Finally, the
record discloses that production employees work in the
toolroom area only on the relatively infrequent occasions
when there is a need to operate a machine which is not in
use in the toolroom , and all similar machines in the
production areas already are engaged , or when there is no
counterpart machine in the production department.47
On the foregoing record , I find insufficient evidence of
integration or community of interest between the Respon-
dent 's production and maintenance employees and the
toolroom employees to regard the latter as accretions to the
production and maintenance unit ,48 and to the contrary, I
find that the Respondent's toolroom employees constitute
a functionally distinct, homogeneous , departmental, group
of employees with a nucleus of traditional craft tool-and-
die makers of the type which the Board customarily finds
an appropriate unit , especially in cases such as this where
they have been excluded from the history of collective
bargaining and no craft severance is involved . 49 Inasmuch
as IUTDM is a labor organization which has been certified
by the Board as the exclusive representative of similar craft
units of about 20 to 25 employers, I also find that IUTDM
has specialized experience in the representation of tool-
room employees such as those employed by the Respon-
dent.
Conclusion
I conclude from all the foregoing that at the time
Respondent recognized Teamsters as the representative of
its toolroom employees, it then was aware that IUTDM
had a substantial interest in the representation of said
employees . I further find that the toolroom employees
constitute a unit appropriate for collective bargaining
under the Act, and that there existed a real question
concerning their representation when Respondent recog-
nized and contracted with Teamsters as their representa-
tive. I further conclude that by bypassing the Board's
processes and by recognizing Teamsters on February 23 as
the representative of said employees , notwithstanding the
rival claim of IUTDM, the Respondent unlawfully assisted
and supported Teamsters and engaged in unfair labor
practices within the meaning of Section 8(a)(2) and (1) of
the Act. Finally, I find that by executing the contract with
Teamsters on February 23 which , inter alia, required its
toolroom employees to become and/or remain members of
Teamsters as a condition of employment, the Respondent
engaged in further unfair labor practices within the
meaning of Section 8 (a)(3) and ( I) of the Act.
of some of the machines in the toolroom.
48 Cf. Chrysler Corporation . 134 NLRB 454, 457.
49 McCulloch Corporation , 189 NLRB 76: United Screw and Bolt
Corporation , 106 NLRB 1308, 1309- 10; The Gemex Corporation , 120 NLRB
46.
AIRMATICS SYSTEMS
IV. rHE EFFLCT OF 1HF UNFAIR LABOR PRACTICES
UPON COMMI•RCE
The activities of the Respondent set forth in section 111,
above, occurring in connection with the operations of the
Respondent described in section 1, 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. T1-HE REMFI)Y
Having found that the Respondent has engaged in
certain unfair labor practices, I will recommend that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that the Respondent unlawfully assisted
and supported Teamsters by recognizing it as the collec-
tive-bargaining representative of the toolroom employees,
and by extending to the said employees an existing
contract containing union-security provisions requiring
membership in Teamsters as a condition of employment,
notwithstanding that Teamsters did not represent an
uncoerced majority of the toolroom employees, and a real
question concerning their representation existed, I will
recommend that Respondent be ordered to cease recogniz-
ing Teamsters as the collective-bargaining representative of
its toolroom employees, to cease giving effect to the
February 23, 1973, extension of its existing collective-
bargaining agreement to the said toolroom employees, and
to reimburse the said employees for all fees, dues, and
other moneys that they have been required to pay
Teamsters by reason of the enforcement of its agreement
with Teamsters dated February 23, together with interest
thereon at the rate of 6 percent per annum to be computed
in the manner set forth in Seafarers International Union of
North America, Great Lakes District, AFL-ciO.30
Upon the basis of the foregoing findings of fact and
upon the entire record in the case. I make the following:
CONCLUSIONS OF LAW
1. International Union of Tool, Die and Mold Makers,
and Local 102, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, are
labor organizations within the meaning of Section 2(5) of
the Act.
2. Airmatics Systems Division of the Mosler Safe
Company is an employer engaged m commerce and in
operations affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
3. All tool and diemakers, experimental sheet metal
mechanics, toolroom machinists, machine operators, tool-
crib attendants, and apprentices employed by the Respon-
dent in the toolroom of its Wayne, New Jersey, plant,
excluding all office clerical employees, professional em-
ployees, guards and supervisors as defined in the Act, and
50 138 NLRB 1142
31 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , recommendations. and recommended Order herein shall, as
81
all other employees, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
4. By recognizing Local 102, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America as the collective-bargaining representative of the
employees in the said appropriate unit, and by entering
into an agreement with the above-named Union which
extends to the said employees an existing collective-
bargaining agreement which requires membership in the
said union as a condition of employment, the Respondent
has unlawfully assisted and supported Local 102. Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, and has engaged in unfair
labor practices within the meaning of Section 8(a)(2). (3),
and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this case,
I hereby issue the following recommended:
ORDER--"
Respondent, Airmatics Systems Division of the Mosler
Safe Company, its officers , agents, successors , and assigns,
shall:
I. Cease and desist from:
(a) Contributing financial or other support. aid, or
assistance to Local 102, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, or to any other labor organization of its
employees.
(b) Recognizing Local 102, International Brotherhood of
Teamsters, Chauffeurs. Warehousemen and Helpers of
America, as the representative of its toolroom employees in
the appropriate unit described below for the purpose of
dealing with it concerning wages, rates of pay, hours of
employment, or other terms and conditions of employ-
ment , unless and until such labor organization shall have
been certified by the Board as the exclusive representative
of such employees. The appropriate unit is:
All tool and die makers, experimental sheet metal
mechanics, toolroom machinists, machine operators,
tool crib attendants, and apprentices employed by the
Respondent in the toolroom of its Wayne, New Jersey.
plant, excluding all office clerical employees, profes-
sional employees, guards and supervisors as defined in
the Act, and all other employees.
(c) Giving effect to the collective-bargaining agreement
with Local 102, International Brotherhood of Teamsters,
Chauffeurs. Warehousemen and Helpers of America,
dated February 23, 1973, or to any modification, extension,
renewal, or supplement thereto; provided, however, that
nothing contained in this Decision and Order shall require
provided in Sec. 102 48 of the Rules and Regulations , be adopted by the
Board and become its findings, conclusions , and order , and all objections
thereto shall he deemed wailed for all purposes
82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent to vary or abandon any wage, hour,
seniority, or other substantive feature of its relations with
its toolroom employees, which it has established in the
performance of such agreement, or prejudice the assertion
by the employees of any rights they may have thereunder.
(d) Giving effect to any checkoff authorization executed
by its employees in the aforedescribed unit in favor of
Local 102, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America.
(e) In any like or related manner interfering with,
restraining , or coercing employees in the exercise of their
right to self-organization, to form labor organizations, to
join or assist International Union of Tool, Die and Mold
Makers, or any other labor organization, to bargain
collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection,
or to refrain from engaging in such activities, except to the
extent that such rights may be affected by an agreement
requiring membership in a labor organization as a
condition of employment, as authorized by Section 8(a)(3)
of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Withdraw and withhold all recognition from Local
102, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any successor
thereto, as the collective-bargaining representative of any
of its toolroom employees for the purpose of dealing with it
concerning grievances, labor disputes, wages, rates of pay,
hours of employment, or other terms and conditions of
employment, unless and until the Board shall certify Local
102, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as such represent-
ative.
(b) Reimburse its toolroom employees in the unit
described above for all fees, dues, and other moneys they
have been required to pay to Local 102, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America as a condition of employment by
reason of Respondent's enforcement of its agreement
dated February 23, 1973, whether or not pursuant to
checkoff authorizations executed by said employees in
favor of that union, together with interest at 6 percent per
annum computed in the manner set forth in the section of
this Decision entitled "The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll and other records necessary to analyze and
compute the amounts of reimbursement due under the
terms of this Order.
(d) Post at its plant located at Wayne, New Jersey, copies
of the notice marked "Appendix." 52 Copies of said notice,
on forms provided by the Regional Director for Region 22,
after being duly signed by Respondent, shall be posted by
it for a period of 60 consecutive days thereafter, in
conspicuous places where notices to 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.
(e) Notify the Regional Director for Region 22, in
writing, within 20 days from the date of the receipt of this
Order, what steps have been taken to comply herewith.
52 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals. the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT recognize Local 102, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America as the collective-bargaining
representative of our toolroom employees unless and
until the Board shall certify it as such representative.
WE WILL NOT contribute financial or other support
to Local 102, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
or any other labor organization.
WE WILL NOT require as a condition of employment
that our toolroom employees become or remain
members of Local 102, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America.
WE WILL NOT give effect to the collective-bargaining
agreement signed with Local 102, International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, dated February 23, 1973, or to any
modification, extension, renewal, or supplement there-
to, or to any checkoff authorizations in favor of Local
102, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, execut-
ed by our employers. However, nothing herein requires
this Company to vary or abandon any wage, hour,
seniority, or other employee benefit established in the
performance of that agreement, or prejudices the
assertion by our employees of any rights they may have
thereunder.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce our employees in the exercise
of their right to self-organization, to form labor
organizations, to join or assist International Union of
Tool, Die and Mold Makers, or any other labor
organization, to bargain collectively through represent-
atives of their own choosing, and to engage in other
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, and to
refrain from any or all such activity, except to the
extent that such right may be affected by a lawful
agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized by
Section 8(a)(3) of the Act.
WE WILL reimburse each of our toolroom employees
for all fees, dues, and other moneys unlawfully exacted
AIRMATICS SYSTEMS 83
from them pursuant to the aforementioned agreement This is an offical notice and must not be defaced by
with Local 102, International Brotherhood of Team- anyone.
sters, Chauffeurs, Warehousemen and Helpers of This notice must remain posted for 60 consecutive
America.
Dated By
days from the date of posting and must not be
AIRMArICS SYSTEMS altered , defaced, or covered by any other material.
DivisioN OF THE. MOSLER Any questions concerning this notice or compliance
SAFE. COMPANY with its provisions may be directed to the Board's
(Employer)
Office, Federal Building-16 Floor, 970 Broad
Street , Newark. New Jersey 07102, Telephone
(Representative ) (Title) 201-645-2100.