Teramana Brothers Coal Mining Co.

National Labor Relations Board - Board Decisions

Nov 5, 1968

173 N.L.R.B. 581 (N.L.R.B. 1968)

TERAMANA BROTHERS
Teramana Brothers Coal Mining Company and United
Mine Workers of America , District 61 and Tera-
mana Coal Employees Union ,2 Party to the
Contract . Case 8-CA-4818
November 5, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On April 19, 1968, Trial Examiner Sidney Sherman
issued his Decision in the above-entitled proceeding,
finding that Respondent had not engaged in the
unfair labor practices alleged in the complaint, and
recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial Examiner's
Decision. Thereafter, the General Counsel and the
Charging Party filed exceptions to the Trial Exam-
iner's Decision and supporting briefs, and Respondent
filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, briefs, and the
entire record in this case, and finds merit in the
exceptions of the Charging Party and the General
Counsel. The Board therefore adopts the findings and
conclusions of the Trial Examiner only to the extent
consistent with the Decision herein.
Following certification of the Union as representa-
tive of Respondent's production and maintenance
employees on September 30, 1966, Respondent and
the Union initiated contract negotiations on January
3, 1967, which continued until April 22, 1967. On
that date agreement was reached. The execution of a
written contract by the parties was, however, made
contingent upon the condition that Respondent
obtain a higher price for its coal from Ohio Edison
Company, Respondent's sole customer. Efforts to
obtain the higher price were undertaken by represen-
tatives of the Union's International, and according to
the testimony of Williams, the Union's president,
continued throughout the succeeding summer
months. In the meantime, the Union's local involved
herein was duly organized and held meetings, while
contact between it and Williams concerning the
progress of price raise negotiations was maintained
informally through personal contacts and phone calls
to him from the Local's president.
581
Because of agitation for an independent organiza-
tion to represent employees, commencing sometime
in September 1967, an employee meeting was called
on September 30, 1967, for the announced purpose
of determining employee preference as between the
Union and an independent; a vote by secret ballot was
then taken following discussion of the issue, explana-
tion of the voting procedure, and exhibition of a
sample ballot. The secret ballot vote resulted in 16
"yes" votes for the Union and 15 "no" votes.
Although two employees testified to confusion at the
meeting on their part regarding the voting procedure,
other employees testified that the procedure was
plainly understandable and clearly explained at the
meeting. There was additional uncontroverted testi-
mony from Williams that a number of union adher-
ents were absent from the meeting. Following this
favorable majority vote, the Union on October 5,
wrote Respondent's counsel requesting the resump-
tion of negotiations. Having received no reply to this
letter, the Union again communicated this request to
Respondent by telegram dated October 25.
A petition dated October 7, 1967, prepared in the
office of Respondent and typed by a secretary, was
circulated among employees and presented to Re-
spondent's president with 42 signatures, including 3
clericals not part of the unit and Dominic Teramana
Jr., son of a part-owner of Respondent. Teramana,
upon receipt of this petition, and without any effort
to authenticate the signatures thereon, at once sug-
gested to employees that a committee of their
number be formed to negotiate a contract. On
October 30, 1967, Respondent notified the Union
that it would not negotiate further with it, and on
November 14, approximately 2 weeks after its initial
meeting with the committee representing the Inde-
pendent, Respondent executed a contract with the
Independent.
The Trial Examiner found that, contrary to the
allegations of the complaint, Respondent did not
violate Section 8(a)(2) and (1) in recognizing and
contracting with the Independent. The grounds relied
upon by the Trial Examiner for these findings were
twofold: (a) he concluded that the Union's claim to
representation was not substantial enough to bring it
within the doctrine of the Board's decision in
Midwest Piping,3 since at the time Respondent agreed
to deal directly with a committee of employees, the
Union had at most 5 adherents out of a unit of 41;
and (b) the Trial Examiner held that the Union's
request for renewed bargaining, made October 5,
1967, was not bona fide because it was made only in
response to the employees' agitation for an indepen-
dent union. Therefore, the Trial Examiner concluded,
Respondent was not precluded from dealing with the
Hereinafter called the Union . 3 Midwest Piping & Supply Co ., Inc, 63 NLRB 1060.
2 Hereinafter called the Independent.
173 NLRB No. 93
582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Independent Union. We do not agree with the Trial Ex-
aminer's conclusions. Just prior to Respondent's recog-
nition of the Independent, Respondent had received
two demands for continuation of bargaining from the
incumbent union, a consideration which the Board
has found to raise a substantial question concerning
representation.' This incumbent union had been
certified by the Board as sole representative of its
employees following an election among them, the
Union had been the employees' representative during
several months of contract negotiations, January to
April 1967, and Respondent had arrived at substantial
agreement with it as to contract provisions securing
various substantive advantages to the employees. The
Union at its own behest was to seek higher prices for
Respondent's coal from its principal customer, in
order to render execution and application of the
Union's area contract possible. Respondent's employ-
ees had organized themselves to constitute a local
chapter of this union and, other than the possible
inference to be drawn from the petition, there is no
evidence of employee resignation from the Union.
Respondent was faced with renewed demands for
bargaining by the Union following a vote by employ-
ees at a meeting it admitted having knowledge of.
Though Respondent denied actual knowledge of the
outcome of the vote, the fact remains that promptly
thereafter Respondent was faced, as already indi-
cated, with renewed and vigorous demands for bar-
gaining by the Union. Contrary to the Trial Exam-
iner's observation, the Union's renewed demands for
bargaining, on October 5, were sent and received
before Respondent received the petition from the
Independent, and, indeed, before circulation, or even
preparation, of such petition, which was dated Octo-
ber 7; we thus cannot conclude, as did the Trial
Examiner, that Respondent's request for bargaining
came after the circulation of the petition, and only in
response thereto. Respondent, nevertheless, when
presented with the petition of the Independent on or
about November 1, 1967, without questioning the
authenticity of the signatures, instantaneously urged
upon the employees presenting it that they form a
committee with which Respondent could negotiate a
contract.
We find it difficult to say in the circumstances of
this case that Respondent maintained an attitude of
strict neutrality throughout, and that it acted in good
faith in recognizing the Independent. In any event, we
cannot accept the Trial Examiner's holding that the
apparent numerical majority reflected by the signa-
tures on the petition favoring the Independent re-
moved the existence of a question concerning repre-
sentation.' As the Board has often stated, an employ-
er cannot arrogate to himself authority to determine
which of two or more contending unions is entitled to
recognition as exclusive bargaining agent.' This is
particularly so on the facts of the present case, in
which the incumbent, certified Union had just re-
ceived a vote of confidence from employees, and had
reiterated to the Respondent its demand for con-
tinued bargaining. We accordingly find that by recog-
nizing and executing a collective-bargaining agreement
with the Independent, in the face of an existing
question concerning representation, Respondent
granted unlawful assistance and support to the Inde-
pendent in violation of Section 8(a)(2) and (1) of the
Act.
THE REMEDY
We have found that the Respondent recognized the
Teramana Coal Employees Union and entered into an
agreement with it on November 14, 1967, all during
the pendency of a real question concerning represen-
tation of the employees covered thereby; and that by
such conduct, Respondent has interfered with, re-
strained, and coerced its employees in the exercise of
their right freely to select their own bargaining
representative, and has accorded unlawful assistance
and support to the Teramana Coal Employees Union,
in violation of Section 8(a)(2) and (1) of the Act. In
order to dissipate the effect of Respondent's unfair
labor practices, we shall order Respondent to with-
draw and withhold all recognition from Teramana
Coal Employees Union, and to cease giving effect to
the aforementioned agreement, or to any renewal,
modification, or extension thereof, until such time as
Teramana Coal Employees Union shall have been
certified by the Board as the exclusive representative
of the employees in question. Nothing herein shall,
however, be construed to require that Respondent
vary or abandon any existing term or condition of
employment.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Teramana Brothers Coal Mining Company, Steuben-
ville, Ohio, its officers, agents, successors, and assigns,
shall :
4 See, e g, National Chemical & Manufacturing Co, 94 NLRB 1190,
1192.
5 See Iowa Beef Packers, Inc., 144 NLRB 615, 619 We do not view
The Boy's Market, Inc., 156 NLRB 105, relied on by the Trial
Examiner, as apposite. In that case, the Board found that, when the
respondents had recognized one union for a new unit of snack bar
employees, the incumbent union had, in effect, no colorable claim to
represent these employees The snack bar employees had never been
covered by the multiemployer contract respondents had executed with
the incumbent union, and that union's claim was viewed as part of an
all-encompassing claim-for the most part unsupported by cards-to
represent the snack bar employees as part of the existing multiemployer
unit.
6 Iowa Beef Packers, Inc., supra, and cases cited therein.
TERAMANA BROTHERS
1. Cease and desist from:
(a) Assisting or contributing support to the
Teramana Coal Employees Union, or to any other
labor organization, by recognizing such labor organi-
zation as the exclusive representative of any of its
employees for the purpose of collective bargaining at
a time when there exists a real question concerning
representation, or in any other manner.
(b) Giving effect to its contract of November 14,
1967, with the Teramana Coal Employees Union or
to any renewal, modification, or extension thereof,
unless and until said labor organization has been duly
certified by the National Labor Relations Board as
the exclusive bargaining representative of such em-
ployees.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the right to self-organization, to form labor organiza-
tions, to join or assist United Mine Workers of
America, District 6, or any other labor organization,
to bargain collectively through representatives of their
own choosing, and to engage in any other concerted
activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any
and all such activities, except to the extent that such
right may be affected by an agreement requiring
membership in a labor organization as a condition of
employment as authorized in Section 8(a)(3) of the
Act, as modified by the Labor-Management Reporting
and Disclosure Act of 1959.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Withdraw and withhold all recognition from
Teramana Coal Employees Union as the repre-
sentative of its employees for the purposes of
collective bargaining unless and until the said labor
org nization has been duly certified by the National
Labor Relations Board as the exclusive representative
of such employees.
(b) Post at its plant in Steubenville, Ohio, copies
of the attached notice marked "Appendix."7 Copies
of this notice, on forms provided by the Regional
Director for Region 8, shall, after being duly signed
by a representative of Respondent, be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where
notices to its employees are customarily posted.
Reasonable steps shall be taken by Respondent to
insure that such notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 8, in
writing, within 10 days from the date of this Decision
7 In the event that this Order is enforced by a decree of a United
States Court of Appeals , there shall be substituted for the words "a
583
and Order, what steps Respondent has taken to
comply herewith.
APPENDIX
NOTICE To ALL EMPLOYEES
Pursuant to the Decision and Order of the National
Labor Relations Board and in order to effectuate the
policies of the National Labor Relations Act, as
amended, we hereby notify our employees that.
WE WILL NOT assist or contribute support to
the Teramana Coal Employees Union, or any other
labor organization, by recognizing, or contracting
with, such labor organization as the exclusive
representative of our employees for the purpose of
collective bargaining at a time when there exists a
real question concerning representation, or in any
other manner.
WE WILL NOT give effect to our November 14,
1967, agreement with the Teramana Coal Employ-
ees Union or to any renewal, extension, modifi-
cation, or supplement thereof unless and until said
labor organization has been duly certified by the
National Labor Relations Board as the exclusive
representative of our employees, but nothing
herein shall be construed to require that Respon-
dent vary or abandon any existing term or
condition of employment.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of their rights to self-organization, to form
labor organizations, to join or assist United Mine
Workers of America, District 6, or any other labor
organization, to bargain collectively through repre-
sentatives of their own choosing, to engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from engaging in any or all such activities,
except to the extent that such right may be
affected by an agreement requiring membership in
a labor organization as a condition of employment
as authorized in Section 8(a)(3) of the Act, as
modified by the Labor-Management Reporting
and Disclosure Act of 1959.
WE WILL withdraw and withhold all recognition
from Teramana Coal Employees Union as the
collective-bargaining representative of our employ-
ees unless and until said labor organization has
been certified as such by the National Labor
Relations Board.
Decision and Order" the words "a Decree of the United States Court of
Appeals Enforcing an Order."
584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TERAMANA BROTHERS
COAL MINING COMPANY
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting, and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 1695 Federal Office Building, 1240 E. 9th
Street, Cleveland, Ohio 44199, Telephone 216-
522-3715.
TRIAL EXAMINER'S DECISION
SIDNEY SHERMAN, Trial Examiner: The original charge
herein was served upon Respondent on November 15, 1967,1
the complaint issued on December 28, and the case was heard
on March 7, 1968. Briefs were filed after the hearing by the
General Counsel and Respondent. The only issue litigated was
whether Respondent violated Section 8(a)(2) and (1) of the
Act by recognizing and contracting with, Teramana Coal
Employees Union.
Upon the entire record2 and my observation of the
witnesses, I adopt the following findings and conclusions.
I. RESPONDENT'S BUSINESS
Anthony J. Teramana, Alfred J. Teramana, and Dominic J.
Teiamana constitute a partnership, doing business as Teramana
Brothers Coal Mining Company, which partnership is the
Respondent herein, and such partnership is herein referred to
as Respondent. It is engaged in the mining of coal in the
Steubenville, Ohio, area, and annually ships coal valued in
excess of $50,000 to the Toronto, Ohio, facility of Ohio
Edison Company. That Company is a public utility, which
annually grosses more than $500,000, and which annually
buys more than $50,000 worth of goods or services directly
from out-of-State sources.3
Respondent is engaged in operations affecting commerce
within the meaning of the Act, and it will effectuate the
policies of the Act to assert jurisdiction herein .4
II. THE UNIONS INVOLVED
United Mine Workers of America, District 6, hereinafter
called the Union, and Teramana Coal Employees Union,
i All dates refer to 1967, unless otherwise stated
2 For corrections of the transcript , see the orders of April 10 and 12,
1968.
3 The above findings are based in part on admissions by Respondent
in its answer and at the hearing , and in part on a stipulation received
from Respondent after the hearing as to the accuracy of certain data
submitted by the General Counsel after the hearing Such stipulation
and submission have been marked as Trial Examiner 's Exhibits 1 (a),
(b), (c), and (d), and are hereby received in evidence.
4 Siemons Mailing Service, 122 NLRB 81, Sioux Valley Empire
Electric Association , 122 NLRB 92
hereinafter called the Independent, are labor organizations
under the Act.
III. THE UNFAIR LABOR PRACTICES
A. Sequence of Events
On September 30, 1966, the Union was certified as the
representative of Respondent's production and maintenance
employees. Negotiations for an initial contract began on
January 3, but were broken off on April 22. At a bargaining
meeting on that date the parties reached agreement on
contract terms, which included a 25-cent an hour wage
increase, but it was also agreed that the contract would not
take effect until Respondent succeeded in obtaining a higher
price for its coal from Ohio Edison Company, which was
Respondent's only customer. The Union undertook to attempt
to negotiate such a price increase. However, all the Union's
efforts in that direction were unavailing. As a result of the
bargaining stalemate Respondent's employees became restive,
and on September 30, 31 of the approximately 40 employees
in the unit attended a meeting, where, after some discussion,
they voted by secret ballot on the question of representation
by the Union or by an independent union. The tally of ballots
showed 16 "yes" votes and 15 "no" votes. About October 1,
and for 2 weeks thereafter the employees circulated a petition
repudiating the Union and requesting direct negotiations with
Respondent for a contract. Upon learning of these develop-
ments, the Union on October 5, wrote Respondent's counsel,
requesting the resumption of negotiations. On October 13 or
14, Respondent received the aforementioned employee peti-
tion, which bore the names of 42 employees, and agreed to
negotiate with a committee to be selected by the employees.
On October 25, having recieved no reply to its letter, the
Union sent a follow-up wire to Respondent's counsel, who, on
October 30, rejected the Union's bargaining request, citing the
fact that Respondent had learned that the Union no longer
represented the employees and that they wished to negotiate
directly with Respondent. After some bargaining between
Respondent and the employee committee, a contract was
executed on November 14, which was signed by the members
of the committe on behalf of the Independent, and which
granted a wage increase, albeit less than that provided for in
Respondent's "tentative" contract with the Union.
B. Discussion
The only issue here is whether Respondent violated Section
8(a)(2) and (1) of the Act by recognizing and bargaining with
the Independent and executing the foregoing contract, in the
face of the Union's bargaining request.5
The General Counsel relies on the Board's Midwest Piping6
doctrine, which requires that, when confronted with con-
flicting representation claims, the employer maintain a posi-
tion of neutrality and refrain from recognizing any union,
5 The General Counsel does not contend that the rejection on
October 30, of the Union's bargaining requests violated Section 8(a)(5)
of the Act, presumably in recognition of the fact that any presumption
that the Union's majority status continued beyond the certification year
was effectively rebutted by the fact that the petition repudiating the
Union was signed by an overwhelming majority of the employees.
6 Midwest Piping & Supply Co, Inc., 63 NLRB 1060, Novak Logging
Company, 119 NLRB 1573, 1574.
TERAMANA BROTHERS
pending a Board resolution of the matter. This rule has been
held not to apply, however, where there is no "real question
concerning representation," as where the unit sought by one of
two competing unions is inappropriate,7 where such a union
does not have sufficient employee support to give it a
"colorable" or "substantial" claim, or where such a union has
become defunct by the time its rival is recognized.8
Respondent contends that the Union's claim was not
"substantial" and that, in any event, the Union should be
treated as having become "defunct" by mid-October, when
Respondent recognized the Independent.
1 The "substantial claim" issue
In Boy's Market, supra, the Board held that a union's claim
was not substantial enough to warrant application of the
Midwest Piping rule, where the union had obtained 5 signed
cards out of a unit of 21 employees. On the other hand, more
recently, in American Bread Company,9 the Board found that
a claim by a local of the Teamsters' union made in March
1966, raised a "substantial" representation question, even
though only 8 out of 92 employees in the unit sought by it
had signed cards for that union at the time that the employer
recognized a rival union, which had produced 170 cards out of
295 employees in the more inclusive unit sought by it.
However, in that case, the Board pointed out, inter aka, that
the Teamsters local was still pursuing before the Board its
claim that an election held in May 1965, on the employer's
petition, which election had been lost by that local, was
invalid, and, in fact, on the same day that the above decision
issued, the Board in a companion case,i o issued a decision
sustaining that claim and directing that a new election be held.
In view of such ruling, which in effect recognized that the
representation question raised by the employer's 1965 petition
had not yet been resolved, the Board could hardly have held
that there was no real representation issue in April 1966, when
the employer recognized the rival union. As no such situation
exists here, it would seem that the controlling precedent is
Boy's Market, where the Board held that a union's claim
supported by only 5 out of 21 employees in the unit did not
preclude recognition of a rival union as the bargaining agent
for such unit.
Here, the petition repudiating the Union contained 42
names. It was stipulated that Respondent had 44 employees on
its payroll on October 6. If one eliminates from both these
figures the 3 office employees, who signed the petition,
although not in the bargaining unit, the count becomes 39
purported signers out of 41 unit employees. And, if Dominic
Teramana, Jr., and Di Carlantonio, both whose names do not
7 William Penn Broadcasting Co., 93 NLRB 1104
8 The Boy's Market, Inc, 156 NLRB 105, Ensher, Alexander &
Barsoom, Inc., 74 NLRB 1443
9 170 NLRB No.20
10 American Bread Company, 170 NLRB No 19
11 As the son of a part -owner of Respondent , D Teramana, Jr.,
would not be deemed eligible , in any event.
12 Such endorsements appear over those of the wives , and apparently
were made in connection with the deposit of the checks in joint bank
accounts
13 Among the specimen signatures submitted at the hearing was that
585
appear on the stipulated payroll list, are also eliminated from
the number of signatories, the count is 37 out of 41.11
The bulk of the signatures on the petition were not
authenticated at the hearing other than by the production of
payroll records and checks purporting to bear specimens of the
signatories' handwriting, and it was agreed that the parties
would be bound by my ruling as to the authenticity of the
signatures on the petition, on the basis of a comparison thereof
with such specimens. From such comparison, I am satisfied
that the signatures on the petition are genuine, except for
those of Hoover and E. House. As to them, I can make no
determination on the foregoing basis, since the only specimens
submitted were apparently endorsements made by their wives
on checks issued to the husbands.12 However, as Miller
attested at the hearing that he saw Hoover sign the petition, I
deem that sufficient verification of his signature. It thus
appears that at least 36 out of the 41 unit employees signed
the petition and that the only ones in the unit who clearly did
not sign are Hanks, Zende, Chilensky, and Modransky.13
Accordingly, if one is to consider the petition as accurately
reflecting employee sentiment, it appears that at the time the
Respondent agreed to deal directly with a committee of
employees, the Union had at most only five adherentsi 4 out
of 41. Under the rule of Boy's Market such a count would not
suffice to preclude Respondent from dealing with another
union.
Moreover, of the foregoing five employees, there was no
evidence at the hearing as to the reason for the failure of
Modransky and Chilensky to sign the petition, and only as to
Zende and Hanks was there any competent, affirmative
evidence that they were Union adherents in October.' 5
It may be contended that Boy's Market is distinguishable on
the ground that, there, the prevailing union demonstrated its
majority status by a "reliable" card check, whereas, here, there
is only a petition. While one may well debate the relative
reliability of signatures on union authorization cards and
signatures on petitions as an index of employee sentiment, I
am aware of no Board rulings that one is per se more reliable
than the other. Both must be appraised in the light of the
circumstances under which they were obtained. In Boy's
Market the Board found the card check to be reliable evidence
of employee sentiment notwithstanding that 5 of the 17
employees of Boy's Market, who signed cards for the prevailing
union, had also signed cards for the rival union.' 6 Here, there
is the somewhat analogous question of the effect to be given to
the employee vote on September 30. As already related, 16
"yes" votes were cast as against 15 "no" votes. However, it is
clear that the ballots, themselves, did not contain a statement
of the proposition on which the employees were voting, and,
while E. Blake and Hanks testified that it was announced at
of "Charles Young " However, his name does not appear on the
stipulated payroll list, presumably because , as he testified , he left
Respondent 's employ on October 3.
14 Absent proper verification of E. House's signature on the petition,
I have counted him as a possible Union adherent, even though it would
seem more realistic to assume , under all the circumstances, that, had
Respondent been given further opportunity to do so, his signature
would have been duly verified.
15 As to the evidence relating to E. Blake, who signed the petition,
see the discussion in the text , below.
16 See fns . 12 and 14 at 115 of cited decision.
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the meeting, before the voting, that a "yes" vote represented a
vote for the Union, and a "no" vote meant a vote for the
Independent,' 7 Rider and Miller testified that they did not
recall hearing any such explanation, and both attested that
they voted "yes," although they meant to express a preference
for the Independent. Apart from Blake and Hanks, the General
Counsel adduced no evidence from any of those voting at the
September 30 meeting that they meant to cast their votes for
the Union. It is manifest from the foregoing that, despite any
announcement or other measures that may have been taken to
apprise the employees of the significance of the "yes" and
"no" votes,' 8 there was some confusion among the employees
as to the matter. This circumstance detracts from the weight to
be given to the result of the vote as impeaching the reliability
of the petition or as establishing that the Union still had a
substantial following among the employees when the Inde-
pendent won recognition. Moreover, the record shows that the
petition was circulated during the first 2 weeks of October It
necessarily follows that all the signatures thereon were affixed
after the September 30 vote, which circumstance permits the
inference that most of those employees who may have favored
the Union on September 30, experienced a change of heart
during the next 2 weeks.
As to the circumstances under which the signatures on the
petition were obtained, the General Counsel disclaimed any
contention that any pressure to sign was, in fact, exerted by
Respondent, and there was no evidence to that effect. There
was only testimony by E. Blake as to a subjective belief by him
that Respondent had neglected to call him to work on a
particular day because of his initial refusal to sign the
petition,' 9 and testimony by Zende that Snyder, who solicited
his signature thereon, attempted to overcome his objection to
the petition, by telling him that, if he signed it, he "would
look better for the Company." However, even if this remark be
deemed coercive, the fact remains that Zende did not sign the
petition. From none of the other employees who testified at
the hearing did the General Counsel elicit any evidence of
coercion, nor, so far as the record shows, was any attempt
made by him to call any other employee to testify on the,
matter.
Upon consideration of all the foregoing matters, it is
concluded that the evidence does not preponderate in favor of
a finding that the petition did not reflect the true sentiments
of all those who signed it,20 or, conversely stated, that any
representation claim that may have been implicit in the
Union's request for resumption of bargaining was a substantial
claim.
2. The "defunctness" issue
As already noted, the Board has held that the Midwest
Piping rule does not apply where one of two rival unions has
become defunct by the time that the other union is
recognized.2 i In its brief, Respondent contends that, here, the
status of the Union in October was analogous to that of a
17 Both testified , also, that they indicated their preference for the
Union by voting "yes." In addition , Young testified that he "believed"
that "yes" signified a preference for the Union
18 Blake testified that a sample ballot was posted showing that
"yes" was for the Union and "no" for the Independent
19 He eventually did sign the petition , although professing at the
hearing to still favor the Union.
defunct union, since it not only had lost the support of about
90 percent of the employees but also had for nearly half a year
abandoned any effort to bargain
The fact that the Union on October 5 did request a
bargaining meeting may well be deemed to preclude any
finding that it was defunct. It therefore becomes pertinent to
consider whether this was a meaningful request or only one
designed to simulate an appearance of vitality and to stymie
any negotiations with other employee representatives. This
inquiry is relevant not only on the issue of defunctness but
also because it would seem that a bargaining request made for
the latter reason should not be deemed to raise a real question
concerning representation under Midwest Piping It is clear
from the testimony of Williams, the president of the Union,
that he recognized that bargaining had reached an impasse on
April 22, and that (short of strike action) the impasse could be
broken only by Respondent's obtaining a higher price for its
coal. Moreover, while Williams testified that the Union
undertook to induce Respondent's sole customer, Ohio Edison
Company, to grant price relief to Respondent, he admitted
that the Union's request for such relief had been rebuffed by
that Company even before April 22, and, although he testified
vaguely as to the Union's continuing efforts to obtain such
relief, he failed to indicate whether such efforts were still being
pursued in October or what prospect, if any, there was of
success. When asked why he wished to meet with Respondent
on October 5, Williams testified that he wanted to see "if we
couldn't negotiate a contract . . with the thought in mind
that the way the men felt, that they would use their economic
strength." In this connection, he explained that he had finally
reached the conclusion that the bargaining impasse could be
broken only by strike action, and that his October 5 letter was
written after he heard that at the September 30 employee
meeting a majority had voted for the Union. Thus, the net
effect of Williams' testimony was that, upon hearing that at
the September 30 meeting a majority had voted for the Union,
he was encouraged to believe that the employees would
support a strike to break the bargaining impasse, and that this
was what prompted him to request a meeting with Respon-
dent. However, when asked why he did not call a strike after
Respondent had on October 30, refused to meet with him, he
answered only that he doubted whether the Union "had the
economic strength ... to sustain a strike." Although he
insisted that he still believed, even at the time of the hearing,
that the majority of the employees favored the Union, he
failed to explain why on October 5, he thought that a strike
was feasible but no longer thought so after October 30. In view
of this apparent self-contradiction, I do not credit his
testimony that he sought a renewal of bargaining as a prelude
to strike action, and, absent any suggestion by Williams that
the Union was prepared in October to modify the demands
which had led to the impasse, the timing of Williams' October
5 letter in relation to the circulation of the petition and the
20 Even as to Blake, I do not deem his aforecited testimony as to his
subjective belief that he was being pressured by Respondent to sign the
petition to be entitled to any probative weight . It is well settled that an
employee's subjective reasons for signing a union card are not
competent to impeach the card. Presumably , the same rule would apply
to a petition designating a union as bargaining agent.
21 Ensher, Alexander & Barsoom, Inc ., supra.
TERAMANA BROTHERS 587
agitation for an independent union22 is persuasive that the
only reason for the October 5 request was to block negotia-
tions by Respondent with any other representative of the
employees, and not any expectation that further bargaining
would be productive.
Under these circumstances, it is found that the Union's
bargaining requests in October were not prompted by a
genuine desire to meet with Respondent nor related to any
plan to exert economic pressure on it, but was solely for the
purpose of frustrating the employees' attempt to break the
existing stalemate through direct negotiations. It is accordingly
concluded that, whether or not the Union be deemed to be
defunct, such an illusory or sham request for bargaining did
not raise a real question concerning representation within the
contemplation of the Midwest Piping rule, and that for this
additional reason there is no basis here for finding the violation
alleged in the complaint.2 3
RECOMMENDED ORDER
It is ordered that the complaint herein be dismissed in its
entirety.
22 Williams admitted that before he wrote the October 5 letter, he
knew of the petition and the interest of the employees in an
Independent union
23 The General Counsel cites Couch Electric Company, 143 NLRB
662, and Air Master Corporation, 142 NLRB 181, where it was found
that the employer violated the Act by recognizing a rival union about
the same time that an incumbent union was seeking the negotiation or
execution of a new contract. However, in those cases the incumbent's
bargaining activity did not occur , as here, against a background of a
bargaining impasse and the complete absence, for nearly half a year, of
any contact between the incumbent and the employer Moreover, unlike
the situation here, there was no reason in those cases to question the
good faith of the incumbent union's efforts to obtain a contract nor any
reason to believe that such efforts were merely simulated in order to
forestall any dealings by the employer with another representative of
the employees