William Penn Broadcasting Co.

National Labor Relations Board - Board Decisions

Apr 2, 1951

93 N.L.R.B. 1104 (N.L.R.B. 1951)

1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nance employees constitute an appropriate unit, apart from other
employees.4
Accordingly, we find that all maintenance employees at the Em-
ployer's New Bedford, Massachusetts, plant, including machinists and
helpers, carpenters and helpers, electricians and helpers, pipe fitters
and helpers, welders, millwrights, tinsmiths and helpers, firemen and
-oilers,- pump room men, generator men, rack repairmen, painters,
porters, janitors, laborers, tool crib attendants, and maintenance de-
partment general helpers, but excluding production employees,
shipping room employees, receiving department employees, office and
clerical employees, guards, watchmen, professional employees, and
supervisors as defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9 (b)
of the Act.
[Text of Direction of Election omitted from publication in this
volume. ]
4 Cf. Armstrong Cort; Company, 80 NLRB 1328 ; Jefferson Chemical Company, 81 NLRB
-1393; W. F. Schrafft & Sons Corporation, 86 NLRB 77; E. I. DuPont de Nemours
_J Company, 88 NLRB 941.
WILLIAM PENN BROADCASTING COMPANY and INTERNATIONAL BROTHER-
HOOD OF ELECTRICAL WORKERS , AFL. Case No. 4-CA-154. April
-"1951
Decision and Order
On August 21, 1950, Trial Examiner Hamilton Gardner issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the In-
termediate Report attached hereto. Thereafter the Respondent filed
exceptions to the Intermediate Report and a supporting brief.'
The Board has reviewed the rulings of the Trial Examiner and finds
that no prejudicial error was committed. The rulings are hereby af-
firmed. The Board has considered the Intermediate Report, the Re-
spondent's exceptions and brief, and the entire record in the case, and
adopts the findings of fact of the Trial Examiner as modified below.
We do not, however, adopt his conclusions.
i American Communications Association, herein called the ACA, as a party to a contract
with the Respondent, was duly served with a copy of the complaint which specifically
raised such contract in issue. However, the ACA failed to enter an appearance at the
hearing. After the issuance of the Intermediate Report, the ACA filed with the Board
"Motion to Intervene and For Other Relief" together with a proposed bill of exceptions
to the Intermediate Report and a supporting brief. In view of our disposition of the
lease herein, we find it unnecessary to pass upon this motion.
93 NLRB No. 201.
WILLIAM PENN BROADCASTING COMPANY 1105
The Trial Examiner in his Intermediate Report found a violation
of Section 8 (a) (2) and (1) of the Act, to which the Respondent
filed exceptions. Briefly stated, the pertinent facts are as follows :
On December 13, 1949, the charging union, International Brotherhood
of Electrical Workers, herein called the IBEW, filed with the Board
a petition for certification as the bargaining representative of the
Respondent's "broadcast technicians and engineers." 2 On February
3, 1950, while the petition was still pending, the Respondent renewed
its contractual relations with the ACA, which had been representing
for 12 years a unit of the Respondent's production employees that in-
cluded the technicians sought in the petition.3 On the same date,
wage increases provided for in the contract were put into effect.
The Trial Examiner adopted the theory relied upon in the complaint
that the Respondent, by entering into an exclusive bargaining con-
tract with the ACA in the face of the IBEW's pending petition be-
fore the Board, violated the Act under the Midwest Piping doctrine.4
He failed to pass upon the Respondent's contention, expressly ad-
vanced in its answer to the complaint, and reasserted in its exceptions
to the Intermediate Report, that when it entered into the contract
with the ACA, no valid question concerning representation existed
because the unit sought by the IBEW in its petition was inappropri-
ate. We find merit in this contention of the Respondent.
The construction placed upon the Midwest Piping doctrine by the
Trial Examiner under the circumstances of this case, would, in our
opinion, operate in derogation of the practice of continuous collective
bargaining which the Act was designed to encourage in the interest
of industrial stability. Moreover, such a broad application of the
doctrine as here proposed by the Trial Examiner would serve only to
deprive employees of the benefits of an uninterrupted bargaining re-
lationship whenever a clearly unsupportable or specious rival union
claim is made upon an employer. In conformity with these views, we
conclude that the pendency of a petition for certification imposes no
duty upon an employer to refrain from continuing exclusively to rec-
ognize and deal with an incumbent bargaining representative, such
as we have here, unless the petition has a character and-timeliness
which create a real question concerning representation.5
2 It appears that the classifications of technician and engineer are used interchangeably
in the Respondent 's operations.
3 No exceptions were filed to the finding of fact in the Intermediate Report as to the
existence of such a 12 -year bargaining history.
4 The doctrine derived its name from the case entitled Midwest Piping and Supply Co.,
Inc, 63 NLRB 1060 ( September 1945).
i Necessarily , it is for the Board, within the prescribed procedures of the Act, ultimately
to determine after full litigation of the issue , whether a real question concerning repre-
sentation existed under particular circumstances Member Houston misconstrues this
fact in his dissent, in inaccurately describing our finding as a "rule of employer determina-
tion " The "determination " which an employer may make for himself, and at his pei ii,
under the rule in this case is in no way different fiom the interpretations of law, derived
from existing statutes and authoritative legal opinions , an employer is regularly called
upon to make to guide himself in his other business activities.
943732-51--71
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The existence of such a question concerning representation is de-
terminable by applying the same criteria, contemplated in Section 9
of the Act, that are uniformly applied by the Board in, finding a "ques-
tion of representation" before proceeding to an election. One of the
essential elements for a determination that such a "question" exists is
that the petitioning union, seeking to displace an incumbent, assert
its claim as to an appropriate unit of employees.
Our dissenting colleague misconstrues our finding here. Clearly,
we have applied what is properly the Midwest Piping doctrines to
this case, which does involve "an incumbent union situation." Con-
trary to member Houston's view, our finding certainly effects no
abatement or diminution of the employee's right under the Act to
change their bargaining representative. Indeed, under the Act no
opportunity is presented for a change from the incumbent representa-
tive of the employees unless a real "question of representation" exists
within the meaning of Section 9 (c). In the absence of such a ques-
tion, therefore, if the employer's contract with the incumbent union
has any tendency to encourage the employees to become or remain
members of the incumbent union, which Member Houston emphasizes
as a point of objection, this is merely a possible and natural advan-
tage which inheres in the position of every lawful bargaining agent
and does not constitute an interference with the employees' free choice
of representatives prescribed by the Act.
In the present case, as in all cases, the burden of establishing the
facts to support the violation alleged in the complaint rests upon the
General Counsel. Thus, it was incumbent upon the General Counsel
to prove that a real question concerning representation existed when
the Respondent renewed its contract with the ACA on February 3,
1950. Consequently, among other things, it was necessary that the
General Counsel, to establish his prima facie case, produce evidence
that the representation claim of the IBEW did encompass employees
within an appropriate unit. 7 This the General Counsel failed to do. 8
Accordingly, we shall dismiss the complaint for lack of necessary
evidence.
C See our most recent holdings on the Midwest Piping doctrine, e g. Gulf Shipstde
Storage Corporation, 91 NLRB 181; Sun Oil Company, 89 NLRB 833; International
Haruestc> Company, 87 NLRB 1123 These cases required the existence of a "real,"
"genuine," or "valid" question concerning representation for the finding of a Midwest
Piping violation , they did not, as our dissenting colleague incorrectly assumes to support
his position, rest solely upon the fact that a petition was pending 'ehen the employer
signed the contract with the incumbent union
' We would distinguish, however, those issues commonly raised with respect to the
determination of a question concerning representation, such as contract bar, which are
in the nature of affirmative defenses, and which therefore need not be advanced in the
Ueneral Counsel' s prima facto case.
8 The introduction in e' idence of the IBEW's petition does not 'constitute evidence of
the alleged appropriate unit described therein, but serves only to prove that such a
petition was placed on file with the Board.
WILLIAM PENN BROADCASTING COMPANY
Order
1107
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint against William
Penn Broadcasting Company, Philadelphia, Pennsylvania, be, and it
hereby is, dismissed.
MEMBERS REYNOLDS and MURDOCK, concurring specially :
We concur in the principal opinion except that we would remand
the case for further hearing on the issue of whether a question con-
cerning representation existed when the Respondent executed its
contract with the ACA, and in particular, whether the employees
sought to be represented by the IBEW constitute an appropriate unit .9
As these issues were not litigated at the hearing already held, we be-
lieve that the parties should be given an opportunity to do so now in
the light of the Board's decision herein. A remand would also
enable us to decide the case upon the merits rather than upon a
technical failure of the evidence, as the case now stands. We are
constrained to agree, however, that on the actual record before us,
the General Counsel has failed to make out a case. Because the vote
for remand fails for want of a majority, we must necessarily join
Chairman Herzog and Member Styles, in the vote for dismissal.
MEMBER HOUSTON, dissenting :
I disagree with the conclusion of my colleagues that the Respondent
did not violate the Act by executing a contract with the ACA in the
face of the IBEW petition. My colleagues construe the Midwest
Piping doctrine as permitting an employer, in the interest of continu-
ous collective bargaining in "an incumbent union situation," to deter-
mine the existence of a "real" question concerning representation,
including the appropriate unit issue. I am in full sympathy with
the general policy of promoting continuous collective bargaining, but
not to the extent of departing from the Midwest Piping doctrine by
depriving employees of their right under the Act freely to select the
Union of their own choosing.
In Midwest Piping and cases which followed,10 the Board held that
an employer usurped the Board's exclusive function to determine
questions concerning representation by executing an exclusive bar-
gaining contract with one union in the face of a rival union's petition
pending before the Board. In such circumstances, the Board defined
an employer's obligation as one of strict neutrality pending Board
' To this limited extent , we won](] also grant motion to intervene of the ACA, which,
by its own choice , took no part in the hearing held.
'"I Spiewak cC Sons, 71 NLRB 770; Radio Corporation of America, 74 NLRB 1729;
The Standard Steel Spring Company, 80 NLRB 1082, enf den , 180 F. 2d 942 (C. A. 6) ;
International Harvester Company, 87 NLRB 1123, Sun Oil Company, 89 NLRB 833.
1 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
investigation of the petition, thereby assuring to employees the free
choice of bargaining representatives guaranteed by the Act. Under
some circumstances, the Board has held that the pendency of a peti-
tion did not create a "real" question concerning representation as
where the petitioning union became defunct" or the petition was
untimely filed.12 None of these cases relied upon the presence or
absence of "an incumbent union situation" as solely dispositive of
whether the Board would follow the pendency of a petition or the
Ic`real" question test 13 None of these cases permitted an employer
to resolve the appropriate unit issue in determining whether or not
a "real" question concerning representation existed.
Now for the first time, however, the majority decides that in "an
incumbent union situation," the Board will look only to the existence
of a "real" question concerning representation, and that an employer
may resolve the appropriate unit issue. By thus sanctioning em-
ployer determination as to which contending union represents the
^uncoereed will of a majority of employees in an appropriate unit, my
colleagues have, departed from the Midwest Piping doctrine of em-
ployer neutrality pending Board determination of such questions.
Mindful of the pressures caused by rival union conflict, in incumbent
no less than in initial bargaining situations, I am unable to agree that
employer determination of representation questions will adequately
protect employees' free choice of bargaining representatives. Nor
does the fact that the Board may ultimately determine whether a
"real" question existed serve, as the majority asserts, as an adequate
safeguard of employee rights under the Act where an employer has
executed a contract with an incumbent union despite the existence of
a "real" question. By executing the contract, the employer encour-
ages his employees to become and remain members of the contracting
union, thereby interfering with a free choice of bargaining represent-
atives in an election which the Board may thereafter direct.
The majority maintains that an employer acts no differently in
determining representation questions than when ho makes interpre-
tations of law in his business activities which may later prove incor-
rect. But the majority overlooks the fact that in the interest of
unhampered selection of bargaining representatives, the Act pre-
cludes an employer from recognizing one of two rival unions until
the Board determines the authorized representative.
11Ensher, Alexander h Barsoom, Inc , 74 NLRB 1443.
12 Lift Trucks , Inc., 75 NLRB 998; Gulf Shipside Storage Corporation, 91 NLRB 181.
13 Cf. International Harvester Company, supra, involving "an incumbent union situation,"
-where the Board in effect applied the pendency of a petition rule, with Gulf Shipside
Storage Corporation, supra, also involving "an incumbent union situation ," where the
Board applied the "real " question or timeliness rule See The Hoover Company, 90 NLRB
1614, where the Board stated the Midwest Piping doctrine as applying "only if at the
time recognition [ of one of the competing unions ] is granted, the question concerning
representation raised by the rival petition is still pending 11
WILLIAM PENN BROADCASTING COMPANY 1109
My colleagues advance the interruption of continuous collective
bargaining entailed in processing "specious"' rival union claims as
added reason for a rule of employer determination of the representa-
tion issue in "an incumbent union situation." I have no doubt, how-
ever, that such claims are expeditiously disposed of at the Regional
Office level. Moreover, once it has been administratively determined
that a rival union petition presents a claim which is prima facie suffi-
cient to warrant the holding of an election, and notice of hearing has
issued, it can no longer be said that such claim is "clearly unsupport-
able" or "specious."
I am convinced that temporary postponement of bargaining rela-
tions is not too great a price to pay for the stabilizing effects of an
orderly selection of bargaining representatives by Board election.
I would therefore find, under the circumstances of, this case, that by
executing a contract with the ACA with knowledge of the pending
IBEW petition, the Respondent violated the Act.
Intermediate Report
E. Don TTvilson, Esq., Philadelphia, Pa., for the General Counsel.
Mr. William, Chano ff, Philadelphia, Pa, for the Respondent.
Mr. Freeman S. Hurd, Washington, D. C., for the International Brotherhood of
Electrical Workers, AFL
STATEMENT OF THE CASE
This proceeding arose upon a charge filed on February 6, 1950. by International
Brotherhood of Electrical Workers, AFL, against William Penn Broadcasting
Company. Upon the basis of such charge, the General Counsel of the National
Labor Relations Board, acting through the Regional Director of the Fourth Re-
gion (Philadelphia, Pennsylvania), issued a complaint against the named com-
pany on May 17, 1950. This alleged that the Company had engaged in and
was engaging in unfair labor practices affecting commerce within the meaning
of Section 8 (a) (1) and (2) and Section 2 (6) and (7) of the National Labor
Relations Act, as amended by the Labor Management Relations Act (61 Stat.
136).' Copies of the complaint and of the charge upon which it was based,
together with notice of hearing thereon, were duly served upon the Respondent,
the International Brotherhood of Electrical Workers, AFL, and the American
Communications Association, CIO.
The complaint alleged in substance that the Respondent engaged in unfair
labor practices : (1) on and since February 3, 1950, by interfering with, re-
straining, and coercing its employees in the rights guaranteed in Section 7 of
the Act; and (2) on and since February 3, 1950, by recognizing the Associa-
tion as the exclusive bargaining agent of its employees, by negotiating a col-
lective bargaining agreement with the Association, and by increasing the wages
of its employees, notwithstanding that since December 3, 1949, there has been
pending before the Board, a petition by IBEW, raising the question of represen-
i Reference in this Report will be : the General Counsel and his representative at this
hearing, as General Counsel ; William Penn Broadcasting Company, as the Respondent or
the Company ; International Brotherhood of Electrical Workers, AFL, as IBEW ; American
Communications Association, CIO, as the Association ; the National Labor Relations
Board, as the Board; the Labor Management Relations Act, as the Act.
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tation of the Respondent's employees. Thereby, it alleged, the Respondent had
deprived its employees of the exercise of the rights guaranteed in Section 7 of
the Act.
The answer of the Respondent was submitted informally by a letter. It
admitted the jurisdictional facts, but denied the unfair labor practices.
Pursuant to notice, a hearing was held at Philadelphia, Pennsylvania, on
June 5, 1950, before Hamilton Gardner, the undersigned Trial Examiner, duly
designated by the Chief Trial Examiner. The General Counsel was repres-
ented by counsel and the Respondent and IBEW by authorized representatives.
Adequate opportunity was afforded at the hearing to the Association to ap-
pear by counsel or representative but it remained unrepresented. Full op-
portunity was presented all parties to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues No witnesses testi-
fied but documentary proof was submitted and received and the parties en-
tered into various stipulations The General Counsel made a brief state-
ment at the beginning of the hearing and the representative of the Respondent
offered short statements at its conclusion. The parties were advised of their
right to file proposed findings of fact, conclusions of law, and briefs. No
party submitted anything.
Upon the entire record in the case, I make the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
William Penn Broadcasting Company is a corporation of the Commonwealth
of Pennsylvania with its principal office and place of business at Philadelphia,
therein, and is a wholly owned subsidiary of Sun Ray Drug Company, like-
wise a Pennsylvania corporation. It is engaged in the business of operating
Radio Station WPEN, AM and FM, at Philadelphia. In so doing it trans-
mits by radio entertainment, advertising, news, and other intelligence into
the Commonwealth of Pennsylvania and the States of Delaware and New
Jersey. For such service it receives an annual income of over $100,000 of
which 80 percent is of advertising nationally known products and services.
In all catagories the Respondent employs approximately 50 people, of whom
13 are technicians. The pleadings admit and it was stipulated in open hear-
ing that the Respondent is engaged in commerce within the meaning of the
Act. It is so found.
II. THE LABOR ORGANIZATIONS INVOLVED
The Respondent's answer admits and the parties stipulated at the hearing
that IBEW-and'the Association are labor organizations within the meaning
of Section 2 (5) of the Act. I so find.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
No evidence is found in the record of direct violation of Section 8 (a) (1)
of the Act. Any such contravention is derivative only, arising from acts in-
terdicted by Section 8 (a) (2).
B. Domination, interference, contribution, or support to the Association
The complaint alleges the Respondent violated Section 8 (a) (2) with
respect to its relations to the Association. No claim is made by the General
WILLIAM PENN BROADCASTING COMPANY
Counsel of domination, interference, or financial contribution. He bases his
case on "other support to it."
All the facts are either stipulated or undisputed.
Only the technicians in the Respondent's 'station are involved in this pro-
ceeding.
For about 12 years before the period here in question the Respondent had
entered into a succession of contracts with the Association covering all of its
production employees, including the technicians. On December 13, 1949, IBEW
filed a petition with the Board for "Certification of Representatives." This
described a unit made up of "all broadcast technicians and engineers employed
at Station WPEN and WPEN-FM" and excluded "all other employees." The
Fourth Regional Director gave written notice of such filing to the Respondent
on the same date. Likewise, IBEW, on December 12, 1949, wrote the Company
to the same effect. The record shows and the Respondent acknowledged re-
ceipt of both these communications. This representation case is still pending
before the Board as Case No. 4-RC-613 No hearing or election has been held.
Notwithstanding the pendency of this matter, the Respondent, on February
3, 1950, recognized the Association as the exclusive representative of all its
production employees and negotiated and executed a written contract with the
Association dealing with wages, hours, and other terms and conditions of em-
ployment. Moreover the Respondent simultaneously granted a wage increase
to its employees.
Such are the facts Do they constitute a violation of Section 8 (a) (2) ?
Here is involved the doctrine of the Midwest Piping case.2 There the Board
laid down the rule that "the respondent, by executing a `union shop' agreement
with the Steamfitters in the face of the representation proceedings pending be-
fore the Board, indicated its approval of the Steamfitters, accorded it unwar-
ranted prestige, encouraged membership therein, discouraged membership in
the Steelworkers, and thereby rendered unlawful assistance to the Steamfitters"
in violation of the Act.
The Board last considered the Midwest Piping doctrine in the very recent
Hoover Company case.' There, under facts somewhat different from the pro-
ceeding at bar, it applied the Midwest Piping rule. Footnote 9 states that
"Chairman Herzog is reluctant, for still another reason, to apply the principle
of the Midwest Piping case" because of "two recent decisions by the courts."
The first such decision is N. L R B. v. Flotzll Products, Inc.4 But the facts
in that case are clearly distinguishable from the present one There an election
had been held and a clear majority was shown for the union with which the
company had formerly entered into contracts. On the present record this Re-
spondent possessed no such knowledge, but had been clearly informed by the
IBEW petition that a majority of the technicians desired that organization
as their bargaining representative.
The second decision was N. L. R. B. v. Standard Steel Spring Co.` But there
again facts were present to take the case out of the Midwest Piping doctrine
which do not obtain in the proceeding now under consideration. In the Standard
Steel Spring case the original petitioners in the powerhouse division of the plant
had subsequently disavowed their choice and so notified the Board officially.
No such situation arose here.
2 Midwest Piping and Supply Co , Inc , 63 NLRB 1060 , 1069-1071.
8 The Hoover Company, 90 NLRB 1614.
4 180 F 2d 441 (C. A 9).
5180 F. 2d 942 (C. A. 6).
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conclusion
Under the present state of facts the Midwest Piping doctrine clearly applies,
since no circumstances are present which take the case out of that rule. It is
not an extension of that doctrine but a clear application. It is therefore con-
cluded that the Respondent violated Section 8 (a) (2) and Section 8 (a) (1)
of the Act.
IV. THE EFFECT OF THE UNFAIR IABOR PRACTICES UPON COMMERCE
It is found that the activities of the Respondent set forth in Section III, above,
occurring in connection with its operations in Section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor prac-
tices, the Trial Examiner will recommend that it cease and desist therefrom and
take certain affirmative action designed to effectuate the purpose of the Act.
It has been found that the Respondent rendered "other support" to the
American Communications Association, CIO. The undersigned will recom-
mend that the Respondent shall withdraw all recognition from the Association
as the bargaining agent for the technician employees ; shall completely dis-
associate itself from the Association as such representative ; and shall not deal
with it on any matters pertaining to grievances, labor disputes, wages, hours,
or other conditions of employment as to said technicians.
In view of all the circumstances in this case a broad general cease and desist
order seems uncalled for and is not recommended.
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 Brotherhood of Electrical Workers, AFL, and American Com-
munications Association, CIO, are labor organizations within the meaning of
Section 2 (5) of the Act.
2. By rendering "other support" to the American Communications Associa-
tion, CIO, the Respondent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8 (a) (2) and Sections 8 (a) (1) of the
Act.
3. Said unfair labor practices are unfair labor practices within the mean-
ing of Section 2 (6) and (7) of the Act.
[Recommended order omitted from publication in this volume.]
SCOTTEN DILLON COMPANY, PETITIONER and TOBACCO WORKERS INTER-
NATIONAL UNION, LOCAL 13, AFL and INTERNATIONAL ASSOCIATION
OF MACHINISTS, LODGE No. 82. Case No. 7-RM-63. April 2, 1951
Decision and Order
Upon 'a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before W. A. Reinke, hearing
93 NLRB No. 194.