Union Carbide and Carbon Corp.

National Labor Relations Board - Board Decisions

Jun 8, 1953

105 N.L.R.B. 441 (N.L.R.B. 1953)

NATIONAL CARBON DIVISION 441
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, join, or assist any
labor organization, to bargain collectively through representatives 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 any or all of such activities, except to the extent that
such right may be affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment as authorized in Section 8 (a) (3) of the National Labor
Relations Act, as amended.
WE WILL make the employees named below, and all other nonunion employees who were
similarly situated, whole for any loss of pay they may have suffered as a result of our
discrimination against them:
David Carbone Frank Scannapieco
Walter Clark Edward McNamara
Joseph Villapiano Eugene Louis Camoosa
Thomas DiFranco Alphonse Santanello
James Martelli Edward Westlake
Ralph Ruggiero Joseph Donofrio
Steve Santaniello George Strong
John Siliato
All our employees are free to become, remain, or refrain from becoming members of any
labor organization , except to the extent that this right may be affected by agreements in con-
formity with Section 8 (a) (3) of the National Labor Relations Act, as amended.
JERSEY COAST NEWS COMPANY, INC.,
Employer.
Dated ................ By.................. .. ... . ..................................... ..... .... ... .....................
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be altered,
defaced, or covered by any other material.
NATIONAL CARBON DIVISION , UNION C AR BIDE AND CARBON
CORPORATION AND NATIONAL CARBON COMPANY, INC.
and LOCAL 85, UNITED GAS, COKE AND CHEMICAL
WORKERS , CIO. Case No. 3-CA- 177. June 8, 1953
AMENDMENT TO DECISION AND ORDER
On August 22, 1952, the Board issued its Decision and Order
in the above-entitled case (100 NLRB 689). Upon further con-
sideration, it appeared to the Board that, said Decision and
Order should be amended. Accordingly, on April 27, 1953, the
Board issued a Notice to Show Cause (104 NLRB 416), return-
able on or before May 11, 1953, which return date was there-
after extended to May t5, 1953, why the Proposed Amendment
to Decision and Order attached to said Notice should not issue
as an Amendment to Decision and Order. None of the parties
has responded to said Notice.
IT IS HEREBY ORDERED that said Decision and Order be,
and it hereby is, amended by deleting the second paragraph
thereof , and by substituting therefor the following:
105 NLRB No. 57.
442, DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Intermediate Report, the exceptions
and briefs , and the entire record in the case and hereby
adopts the findings , conclusions , and recommendations of
the Trial Examiner only to the extent that they are con-
sistent with our dismissal herein of the complaint in its
entirety.
IT IS HEREBY FURTHER ORDERED that said Decision and
Order be, and it hereby is, amended by deleting the entire
balance thereof commencing with the subsection captioned
"Refusal to Bargain after August 25, 1949," appearing on page
698 and ending with Appendix A, inclusive , and by substituting
therefor the following:
(4) Refusal to Bargain after August 25, 1949
The Trial Examiner found that at various times after
August 25 , 1949, the Respondent violated Section 8 (a) (5)
and (1 ) of the Act, by refusing to resume negotiations with
the Union and by unilaterally increasing wages and em-
ployee benefit plans . We do not agree.
On August 25 the Respondent informed the Union that
it had just received a representation claim from the Inde-
pendent Union and that it had not had time to determine
what its "proper position " should be, but that until the
situation could be "clarified " it nevertheless intended to
continue to bargain with the Union . On September 12 the
Independent filed a representation petition with the Board,
whereupon the Respondent refused , on request , to continue
negotiations with the Union. On March 30 , 1950 , the Re-
gional Director dismissed the petition because of the
pending unfair labor practice charges.16 On April 21 this
dismissal was sustained by the Board. Thereafter, the
Respondent again refused , upon request, to resume bargain-
ing with the Union and unilaterally made certain changes
as to wages and employee benefit plans.
We agree with the Respondent that the filing of the peti-
tion raised a prima facie question concerning representa-
tion which , under the "Midwest Piping" doctrine," pre-
IAs noted in the intermediate Report, the Respondent moved, at the outset of the
hearing, that the complaint be dismissed This motion, which the Trial Examiner
denied, was predicated upon the fact that the initial charges were filed by the Union at
a time when its parent organization , the CIO, was not in compliance with the provisions
of Section 9 (f), (g), and (h) of the Act. However, the CIO was in compliance at the time the
complaint issued See Dant & Russell , Ltd., 73 S Ct. 375.
16 These charges were litigated in the instant proceeding and, as herein found, were
without merit.
i7 The doctrine derived its name from the case entitled Midwest Piping and Supply
Co , Inc., 63 NLRB 1060.
NATIONAL CARBON DIVISION 443
cluded it from bargaining further with the incumbent union
during the pendency of the petition. The Board has held
that the mere filing of a petition by a rival union seeking
to dislodge an incumbent union, such as that here, does
not itself require an employer to refrain from continuing
to recognize the incumbent statutory representative.'8
But we also pointed out that, in continuing the established
relationship with an incumbent union, an employer runs the
risk of an unfair labor practice finding if the Board later
determines that the petition raised a "real question con-
cerning representation." It would therefore be manifestly
unfair to require an employer who has engaged in no ante-
cedent unfair labor practice to bargain at his peril during
the pendency of a timely petition.
Nor do we believe, as does our dissenting colleague,
Member Houston, that Respondent unlawfully refused to
bargain after the Board had affirmed the dismissal of the
petition. True, after such dismissal the Respondent was
no longer under possible legal jeopardy within the meaning
of the Midwest Piping doctrine. However, that fact is not
necessarily dispositive of another aspect of the Respond-
ent's defense involving application of the Board's settled
rule that after the end of the certification year, an em-
ployer may with impunity refuse to continue recognition
of a certified union where there exists a good-faith doubt
as to its continued majority status."
We are convinced by the record as a whole that during
the pendency of the petition and after its dismissal by the
Board there was a reasonable basis for the Respondent to
have believed that the Union no longer represented a
majority of the employees. Thus, the Union's certifica-
tion was about 5 years old. It had just terminated an un-
successful strike which resulted in the replacement of a
large number of union adherents. The Independent had made
a rival claim of representation upon the Respondent, and
implemented it by filing a representation petition. As
stated above, the Independent's petition was administra-
tively dismissed by the Board, not because its claim was
unfounded, but because of the pendency of certain charges
filed by the Union which have been found herein to be with-
out merit. We are convinced that the dismissal of the
petition in these circumstances did not alleviate the Re-
spondent's otherwise reasonable and preexisting doubt as
to the Union's majority status but only delayed its resolu-
tion. Any other view would, in our opinion, permit an in-
cumbent union to perpetuate its majority status by filing
charges which after litigation were found tobe groundless.
i8 William Penn Broadcasting Company, 93 NLRB 1104.
19Celanese Corporation of America , 95 NLRB 664, 671-672
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We accordingly find, contrary to the Trial Examiner,
that after August 25, 1949, the Respondent was justified
in refusing to resume negotiations with the Union as the
exclusive bargaining agent and that its subsequent uni-
lateral action with respect to insurance , pensions, and
wage rates was not violative of Section 8 (a) (5) and (1) of
the Act.
As we have adopted that portion of the Intermediate
Report dismissing certain allegations of the complaint
and as we have reversed all unfair labor practice findings
made by the Trial Examiner, we shall dismiss the com-
plaint in its entirety.
[The Board dismissed the complaint.]
Member Houston, dissenting in part and concurring in
part:
I agree with the opinion of Chairman Herzog and Mem-
ber Murdock that there was no refusal to bargain before
the representation petition was dismissed. But I cannot
agree insofar as it fails to find that the Respondent did
not unlawfully refuse to bargain after April 21, 1950, the
date on which the Board dismissed the Independent's peti-
tion. In my opinion that dismissal was tantamount to a
holding that there was then no question concerning the
representation of the Respondent's employees. Conse-
quently, the Respondent could not rely on any asserted
doubt of the Union's majority so as to excuse its admitted
refusal to resume bargaining. The Union's majority status,
established by Board certification in 1945, must be pre-
sumed under these circumstances to have continued unaf-
fected.
Member Peterson , concurring specially:
Although I agree with the dissenting view of Member
Styles, that the Respondent unlawfully refused to bargain at
the outset of negotiations, such view cannot here prevail,
as a majority of the Board(Chairman Herzog and Members
Houston and Murdock) hold to the contrary. Therefore, and
in order to obtain a majority determination of all issues
raised by the complaint, I shall regard the majority hold-
ing on the above point to be the law of the case. This leaves
for my consideration the separate issue on which there is
a divergence of opinion, i.e., whether there was an inde-
pendent unlawful refusal to bargain after the dismissal of
the petition. On that issue, I am in accord with the view of
Chairman Herzog and Member Murdock that there was no
such violation, and therefore join them in dismissing the
complaint in its entirety.
JOHN D. ROCHE, INC. 445
Member Styles , dissenting:
For the reasons set forth by the Trial Examiner, I
would find, contrary to the majority, that the Respondent
failed and refused to bargain in good faith on the subject
of pensions and employee benefits from the outset of the
negotiations which began March 28, 1949. It follows there-
fore that the strike of May 8, 1949, was an unfair labor
practice strike, and that, to the extent found by the Trial
Examiner , the Respondent's refusal to reinstate the
strikers upon request was discriminatory.
Because of the occurrence of these unfair labor practices,
I would find, further, that the Respondent was not privileged
to refuse to bargain with the Union at any time following
the strike despite the pendency of the rival union's peti-
tion. For, under well-established principles, no valid
question concerning representation could exist while the
Respondent ' s unfair labor practices remained unreme-
died,=a and any loss of majority which might have occurred
could be attributed to the Respondent's unlawful conduct.
In the light of this holding as to the continuing duty of the
Respondent to bargain, I would also find, in accord with
the conclusion of the Trial Examiner, that the Respondent's
unilateral increases in rates of pay and in employee bene-
fits, constitute per se violations of Section 8 (a) (5) and
(1) of the Act.
In view of the foregoing , I need not and do not pass upon
the other unfair labor practices issues considered by my
colleagues.
2OSee N.L.R.B. v. Franks Bros., 321 U.S.702; John Deere Plow Company, 82 NLRB 69;
Pacific-Gamble Robinson Co., 88 NLRB 482; Metropolitan Life Insurance Co., 91 NLRB
473.
JOHN D. ROCHE, INC. and LOS ANGELES PRINTING PRESS-
MEN & ASSISTANTS' UNION NO. 78, INTERNATIONAL
PRINTING PRESSMEN & ASSISTANTS' UNION OF NORTH
AMERICA, AFL, Petitioner. Case No. 21-RC-2913. June 8,
1953
SUPPLEMENTAL DECISION AND CERTIFICATION OF
REPRESENTATIVES
Pursuant to a Decision and Direction of Election' issued by
the Board on March 17, 1953, an election by secret ballot was
conducted, under the supervision and direction of the Regional
Director for the Twenty-first Region, on April 13, 1953, among
letterpressmen and assistants employed by the Employer. The
tally of ballots shows that, of approximately 12 eligible voters,
INot reported in printed volumes of Board decisions.
105 NLRB No. 55.