S.M.S. Automotive Products, Inc.

National Labor Relations Board - Board Decisions

Oct 28, 1986

282 N.L.R.B. 36 (N.L.R.B. 1986)

36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
S.M.S. Automotive Products, Inc. and Joaquin
Lugo, Arthur McGee, William E. Killian, Mi-
chael - DiBennedetto, Lonnie E . Thomas, and
Daniel Hernandez and Warehouse Employees
Union, Local 169, a/w International Brother-
hood of Teamsters , Chauffeurs , Warehousemen
& Helpers of America and Local 252 , Service
Employees International Union , AFL-CIO
Service Employees International Union , Local 252
and Joaquin Lugo, Arthur McGee, William E.
Kilian, Michael DiBennedetto , Lonnie E.
Thomas, and Daniel Hernandez
United Electrical, Radio and Machine Workers of
America and Warehouse Employees Union,
Local 169, a/w International Brotherhood of
Teamsters, Chauffeurs , Warehousemen & Help-
ers of America . Cases 4-CA-10919,'4-CA-
11070, 4-CA-11138, 4-CA- 11122, 4-CB-3977,
and 4-CB-4035
28 October 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 15 October 1980 Administrative Law Judge
Norman Zankel issued the attached decision. The
Respondent Employer, S.M.S. Automotive Prod-
ucts, Inc., Respondent Union, Service Employees
International Union, Local 252 (SEIU), and' Re-
spondent Union, United Electrical, Radio and Ma-
chine Workers of America (UE) filed exceptions
and supporting briefs. The General Counsel filed
an answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings,' findings, 2
' The Employer-has requested oral argument That request is denied as
the record, the exceptions, and the briefs adequately present the issues
and the positions of the parties.
2 In adoptmg the judge 's finding that the Employer violated Sec
8(a)(1) by unlawfully sponsoring and conducting a poll of its employees,
we find it unnecessary to pass on his findings that the poll was conducted
in a coercive atmosphere. Instead we rely on his finding that the Em-
ployer had no legitimate reason for taking the poll in light of the Team-
sters' petition . Because the poll was unlawful , it was invalid as a means of
establishing majority status. Consequently , the results of the poll could
not be relied on by the Employer to grant recognition to any of the three
unions participating in it. This is so whether or not a coercive atmos-
phere existed at the time the poll was conducted because of the outstand-
ing unremedied unfair labor practices committed by the Employer and
SEIU in connection with the former 's earlier recognition of the latter,
and without regard to the application of Midwest Piping Supply Co , 63
NLRB 1060 (1945), to the situation. Accordingly, we agree with the
judge that the Employer violated Sec 8(a)(1) and (2) and the UE violat-
ed Sec . 8(b)(1)(A) by their dealings with one another following the poll
Member Stephens agrees that , in light of the pending representation pe-
tition before the Board , it was unlawful for the Employer to take it upon
itself to arrange for a poll of employee sentiment and then grant recogm-
and conclusions and to adopt the recommended
Orders.
The judge, as an alternative basis for finding that
the Employer violated Section $(a)(2) and (1) and
the UE violated Section 8(b)(1)(A) when the
former recognized the latter as its employees' rep-
resentative, concluded that the Employer was not
free to recognize the UE, both because of the
pendency of a valid petition from a rival union and
because of a continuing claim from an incumbent
union. Although the Board, since the issuance of
the judge's decision, has reconsidered and rede-
fined its Midwest Piping doctrine,3 the modifications
do not affect the judge's determination herein.
With respect to the Employer's recognition of the
UE while the Teamsters' petition was pending, the
Board held in Bruckner that "once notified of, a
valid petition, an employer must refrain from rec-
ognizing any of the rival unions."4 Concerning the
Employer's recognition of the UE in the face of
the incumbent SEIU's continuing claim, the Board
has recently held that recognition of a rival union
in the face of such a claim is unlawful, even where
the employer has a sufficient objective basis for
withdrawing recognition.5 Accordingly, we adopt
the judge's alternative violation findings with re-
spect to the Employer's recognition of the UE as
its employees' bargaining representative.
ORDER
The National Labor Relations Board adopts the
recommended Orders of the administrative law
judge and orders that Respondent S.M.S. Automo-
tive Products, Inc., Philadelphia, Pennsylvania, its
officers, agents, successors, and assigns, and Re-
spondents Service Employees International Union,
Local 252, and United Electrical, Radio and Ma-
chine Workers of America, their officers, agents,
and representatives, shall take the action set forth
in the Orders.
tion based on the results of that poll He would not, however, necessarily
bar a noncoercive poll undertaken under Struksnes safeguards while a pe-
tition filed by a nomncumbent union is pending' before the Board if the
poll is aimed solely at determining whether substantial objective indica-
tions of the incumbent's loss of majority support are truly indicative of a
change in employee sentiment that would warrant withdrawing recogni-
tion from the incumbent. He notes that in RCA del Cartbe, Inc., 262
NLRB 963, 965 fn. 13 (1982), the Board acknowledged that the holding
of that case would not "preclude an employer from withdrawing recogni-
tion in good faith based on other objective considerations [i e , consider-
ations other than a pending representation petition filed by a rival
union] "
8 See Bruckner Nursing Home, 262 NLRB 955 (1982), RCA del Caribe,
Inc, 262 NLRB 963 (1982) Chairman Dotson notes that RCA del Cartbe
has no application and takes no position on that case
4 262 NLRB at 957
5 Signal Transformer Co, 265 NLRB 272 (1982)
282 NLRB No. 6
S.M.S. AUTOMOTIVE PRODUCTS 37
Leonard Bernstein, Esq., and David'Fdye, Esq., - tor the
General Counsel.
Steven R. Williams, Esq., and Melvin J. Buckman, Esq.
(Mesirov, Gelman, Jaffee, Cramer & Jameison), of
Philadelphia, Pennsylvania, for the Employer.
Robert C: Cohen, Esq. (Markowitz & Richman), of Phila-
delphia, Pennsylvania, for Service Employees Local
252
Leonard Polletta, Esq., of New York, New York, for
Electrical Workers.
Richard B. Sigmond, Esq., of Philadelphia, Pennsylvania,
for Teamsters Local 169.
DECISION
STATEMENT OF THE CASE
NORMAN ZANKEL, Administrative Law Judge. These
cases were tried before me September 15-18, 1980, at
Philadelphia, Pennsylvania.
The first charges,(Cases 4-CA-10919 and 4-CB-3977)
were filed March,, 11, 1980. The charge in Case 4-CA-
11070 was filed May 14, 1980; in Case 4-CA-11122 on
June 3, 1980; in Cases'4-CA-11138 and 4-CB-4035 on
June 9, 1980.
A-consolidated complaint in Cases 4-CA-10919 and 4-
CB-3977 was issued March 25, 1980, by the Acting Re-
gional Director for Region 4. Another consolidated com-
plaint was issued July 15, 1980, in Cases 4-CA-11070, 4-
CA-11122, and 4-CA-11138, and in Case 4-CB-4035 by
the Regional Director for Region 4. Thereafter, the
issues framed by both consolidated complaints were con-
solidated for trial before me.
In their totality, the complaints allege that the Em-
ployer violated Section 8(a)(1), (2), and (3) of the Na-
tional Labor Relations Act by recognizing, Service Em-
ployees International Union, Local 252 (SEIU) as the
collective-bargaining 'representative, of, , an appropriate
unit of production and maintenance employees on De-
cember 7, 1979; entering into a collective-bargaining
agreement with SEIU December 19, 1979, and thereafter
implementing the terms of a collective-bargaining agree-
ment containing union-security and checkoff provisions,
all at a time when SEIU did not represent a majority of
unit employees; and by having unlawfully polled the unit
employees on June 6, 1980, about their union preference
and thereafter recognized and bargained with UE, all at
a time when UE did not represent, an uncoerced majority
of unit employees.
SEIU, in Case 4-CB-3977, is alleged to have violated
Section 8(b)(1)(A) and (2) of the Act by entering into the
collective-bargaining agreement on December 6, 1979,
and by having negotiated and thereafter implemented the
terms of that agreement, including the union-security and
checkoff provisions.
United Electrical, Radio and Machines Workers of
America (UE) in Case' 4-CB-4035, allegedly violated
Section 8(b)(1)(A) of the Act when it accepted the Em-
ployer's recognition as the collective-bargaining repre-
sentative of the unit employees on June 9, 1980, and
thereafter engaged in collective bargaining with the Em-
ployer, all at a time when UE did not represent an un-
coerced majority of unit employees.
.-"All_'I espdndeiits' filed timely answers to the com-
plaints. The answers admitted certain matters but denied
the substantive allegations and denies that any of them
committed any unfair labor practices.
All parties appeared at the trial. Each was represented
by counsel and was afforded full opportunity to be
heard, to introduce and to meet material evidence, to ex-
amine and cross-examine witnesses, to present oral argu-
ment, and to file briefs. I, have carefully considered the
contents of the briefs filed by each of the parties.
On consideration of the entire record and the briefs,
and my observation of the witnesses and their demeanor,
I make the following
FINDINGS OF FACT
1. JURISDICTION
No issue is raised concerning jurisdiction or labor or-
ganization status. Based on the allegations of the com-
plaints and the admissions by the Respondents, I find
that the Employer is engaged' in commerce within the
meaning of Section 2(2), (6), and (7), and that SEIU, UE,
and Teamsters are labor organizations within the mean-
ing of Section 2(5) of the Act.
IL THE ALLEGED UNFAIR LABOR PRACTICES
A. The Operative Facts
The following' recitation of facts is a composite of rele-
vant factual stipulations, unrefuted oral testimony, sup-
porting documents, and other undisputed evidence. For
the sake of brevity, not every bit of evidence is dis-
cussed. Nonetheless, I have considered all of it together
with all arguments of counsel. Omitted matter is consid-
ered irrelevant or superfluous.
The standard applied to determine what portions of
evidence contained in the instant record are relevant is
derived from available legal precedent established by the
Board. I am aware that certain circuit courts of appeal
have rendered declarations different from the Board on
the focal issues represented. Though I respect the courts'
opinions and authority, it is my obligation to apply
Board precedent unless overruled by the Supreme Court.
Schulte's IGA Foodliner, 241 NLRB 855 (1979); Iowa Beef
Packers,' 144 NLRB 615 (1963).
The instant cases evolve from the efforts of SEIU to
maintain its collective-bargaining relationship with the
Employer and the simultaneous efforts of the unit em-
ployees to divest SEIU of its representative status.
For over 20 years before December 1979 SEIU was
the exclusive collective-bargaining representative of the
production and maintenance employees. That status was
accorded to SEIU by voluntary recognition . St;]U and
the Employer signed and implemented successive collec-
tive-bargaining agreements . The most recent agreement
between those parties was due to expire on January 10,
1980.
About September 19, 1979, negotiations for a new con-
tract began _ between SEIU and the Employer. The SEIU
bargaining committee consisted of its president, Anthony
Teti, Secretary-Treasurer Rocky Mastricola, and shop
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stewards Michael DiBenedetto and Paul Pologruto. Also,
some other shop stewards were on the SEIU negotiating
team. The Employer was represented during negotiations
by Blaise Mazzoni, vice president for finance, among
others.
Concurrently, District 65 of the United Automobile
Workers Union (UAW) undertook an organizational
campaign among the unit employees. On October 23,
1979, the UAW filed a representation petition (Case 4-
RC-13910). On November 9, 1979, Warehouse Employ-
ees Union Local 169 a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of
America (Teamsters) filed a representation petition (Case
4-RC-13947). UAW and Teamsters were informed by
the Board's Regional Office that the petitions were
barred by the existing SEIU-employer contract.' The
UAW and Teamsters petitions were withdrawn Novem-
ber 15 and 16, respectively. By letter dated November
21, the Regional Director advised the Employer, UAW,
and SEIU that the withdrawal of the petitions had been
approved. Teti2 acknowledged receipt of the Regional
Director's letter.
Immediately on receipt of the Regional Office advice
that a contract bar existed regarding the UAW petition,
its attorney, Ira J. Katz, advised DiBenedetto of that
fact. Further, Katz told DiBenedetto precedent existed
by which the employees might yet deter SEIU from con-
tinued representation. Thus, Katz told DiBenedetto that
the Board's holding in Hart Motor Express, 164 NLRB
382 (1967), might provide a basis for an unfair labor
practice finding against SEIU and the Employer. Thus,
Katz, in a telephone conversation, dictated the following
text of a petition to DiBenedetto: "We the undersigned
employees of S.M.S. give notice that we do not want to be
represented for purposes of collective bargaining by the Serv-
ice Employees International Union Local 252 AFL-CIO."
DiBenedetto printed these words at the top of an oth-
erwise blank sheet of legal-size paper. He inserted the
date November 15, "1979, at the top.
On November 15, DiBenedetto and_Pologruto held in-
formal morning discussions among employees regarding
the contract bar to the UAW petition. They convened a
meeting of the unit employees at the Employer's parking
lot during lunch hour that day. DiBenedetto addressed
the employees. In English, DiBenedetto told the employ-
ees of the contract bar problem. He said that it had been
suggested a petition be presented to the Employer and
SEIU 'signifying the employees no longer desired SEIU
representation. For this purpose, he solicited the employ-
ees' signatures on the petition that bore the above-quoted
legend.
An unknown quantity of unit employees were not lit-
erate in the English language. DiBenedetto and Polo-
gruto testified, without contradiction, that one employee
explained in Spanish, what DiBenedetto said in the park-
ing lot. They also testified, without contradiction, that a
different employee provided a similar translation in Ital-
ian. Thereafter, employees signed and dated DiBenedet-
to's petition while in the parking lot. Later that day,
during afternoon break, other employees signed and
dated the petition. 3 Ostensibly, the signatures of a total
of 110 employees appear on the petition. At that time,
the unit consisted of approximately 150 employees.
Later, on November 15, DiBenedetto and Pologruto
met with admitted supervisor, David Mazzoni. They told
Mazzoni they were there to present the employee peti-
tion signed earlier that day to the Employer.
David Mazzoni glanced at the petition. He then dis-
claimed authority to accept it. Instead, he left the room.
He returned with Blaise Mazzoni. The petition was pre-
sented to Blaise who said he had been instructed by SMS
attorneys not to accept anything. Pologruto's uncontra-
dicted testimony4 reflects Blaise also said that anything
like this would have to be processed through the Board.
Blaise said that as far as the Employer was concerned,
there already was a union (SEIU) at the plant. Blaise
turned the petition around and shoved it back to the em-
ployees without reading it. Just before leaving the office,
Pologruto cautioned Blaise to remember that delivery of
the petition had been attempted.
By letter dated November 15, 1979, UAW Attorney
Katz wrote the Employer, its attorney, SEIU, and its at-
torney "that a majority of employees (100) of SMS
Automotive Products, Inc., do not desire to be represent-
ed by SEIU." A copy of the November 15 employee pe-
tition was enclosed. Further, Katz' letter advised that
"the signing of a new contract" between the Employer
and SEIU "will be considered an unfair labor practice."
Return postal receipts indicate that the Employer re-
ceived Katz' letter November 20 and its attorney re-
ceived the letter November 19. Postal receipts reflect a
November 19 receipt date by SEIU and its attorney.
On November 16, 1980, Katz went to the office of
Steven Williams, attorney for SMS. Katz told Williams
at the receptionist desk that he had proof that the SEIU
no longer represented the majority of employees at SMS.
Katz handed Williams an envelope which contained a
copy of the petition and the November 15 cover letter.
Williams refused to accept the envelope. Katz left it on
the desk of the receptionist. Katz told Williams that Wil-
liams now had the material and left. Then, Katz went to
the office of Richard Markowitz, attorney for the SEIU.
Markowitz was not in. Katz gave Robert Cohen, another
attorney for SEIU, an envelope that contained a copy of
the petition and the cover letter. Katz told Cohen he had
proof that the SEIU no longer represented the majority
of employees at SMS. Cohen opened the envelope and
looked at the petition and the cover letter. Katz then
' This was in accord with Deluxe Metal Furniture Co, 121 NLRB 995
(1958) See also Leonard Wholesale Meats, 136 NLRB 1000 (1962).
2 Teti did not personally appear as a witness before me . Instead, rele-
vant testimony provided by Teti in ancillary 10(1) injunction proceedings
based on the complaint in Cases 4-CA-10910 and 4-CB-3977 was re-
ceived in evidence by me by a stipulation between the General Counsel
and counsel for SEW that if Teti had appeared at the instant trial he
would have testified as he did in the 10(j) proceedings
S The authenticity of the signatures appearing on the petition is unchal-
lenged by probative evidence, though arguments of counsel suggested in-
validity.
4 Pologruto testified, "Well, we gave the petition to Blaise Mazzoni
and I gave it to him and I said , this is a petition we got signed at lunch
time, I said over a hundred guys signed this petition The petition is to
inform you that we no longer wish the S.E.I.U to be our collective bar-
gaining agent "
S.M.S. AUTOMOTIVE PRODUCTS 39
sent copies of the cover letter and the petition bycerti-
fied mail, return receipt requested,`to ' SMS, Williams,
Markowitz, and the SEIU. Teti admitted he received a
copy of the petition from Katz around November 19,
1979.
On November 21, 1979, SEIU and the Employer were
scheduled to meet together. Employer Representatives
Samuel and Blaise Mazzoni appeared. DiBenedetto, Po-
logruto, and other committeemen were present. Also,
Teti and Mastricola were there. Each of the employee
committeemen wore UAW buttons. In the presence of
Samuel and Blaise Mazzoni, Pologruto said the` Novem-
ber 15 petition had been offered to the Employer. Polo-
gruto also repeated the petition was a statement by a ma-
jority of employees that'they no longer wanted SEIU as
representative.
No joint' session was conducted. Instead, Teti and
Mastricola met privately with the committeemen. (Polo-
gruto had given the November 15 petition to Teti and
Mastricola before the Mazzonis arrived.) Teti said he
knew the employees were attempting to get another
union to represent them. Teti admitted he read the peti-
tion. Teti 'then said he believed the employee' petition
was invalid because not all signatories affixed a date on
which they signed it. Teti was invited to walk through
the plant to personally ascertain employee sentiment by
speaking to the employees. Apparently, Teti rejected the
invitation. Teti's testimony reflects that the SEIU com-
mitteemen told him not to negotiate a contract. Accord-
ing to DiBenedetto, the meeting ended when Teti said he
would negotiate with or without the committeemen.
Teti's testimony is in substantial accord with the above
description. I note that words ascribed to him by DiBen-
edetto and Pologruto are not confirmed in haec verba by
him. However, I find Teti's account in general agree-
ment. Thus, he admitted telling the committeemen that
he was there to negotiate a contract and, if necessary,
will (in Teti's words) "go it alone." I fmd the import of
Teti's testimony corroborative of DiBenedetto and Polo-
gruto. Moreover, later events enhance their recollection
of the November 21 meeting. Thus, the record is devoid
of evidence that the committeemen participated in any
negotiating sessions between November 21 and Decem-
ber 7, 1979.5 On the latter date, SEIU and the Employer
signed a new collective-bargaining agreement. Addition-
ally, the evidence reflects the unit employees were first
informed 'a contract had been negotiated on December
11. On that date, Teti convened a meeting for unit em-
ployees.6 Those employees who attended were told that
a contract had been signed. All these circumstances sup-
port the proposition that Teti carried through his alleged
November 21 statement to the effect he would continue
bargaining.
The new SEIU-Employer agreement contains the cus-
tomary provisions relating to the terms and conditions of
employment of the unit employees. Included is a union-
security clause containing maintenance-of-membership
5 It is not known how many such sessions occurred or who participat-
ed.
6 It is not clear whether this meeting had been intended for ratification
of the agreement. Very few employees attended. A quorum was absent.
,and union-shop language. The contract also contains a
ehe6k66' provision. Since signing , all the terms of that
contract have been implemented.7
There is some evidence that DiBenedetto and Polo-
gruto participated, with other SEIU stewards, in griev-
ance handling under the new agreement. That evidence
reflects, also, such participation was under protest. Polo-
gruto credibly testified he had frequent arguments with
Mastricola regarding the representation status of SEIU at
grievance meetings. Mastricola did not testify. The evi-
dence shows some of the stewards engaged in this activi-
ty while they simultaneously claimed they were repre-
senting the employees and disavowed their association
with SEIU. None of the stewards, however, actually re-
signed their SEIU membership or stewardship. The facts
described in this paragraph are considered irrelevant to
the main issues. They reflect postsigning conduct. None-
theless, these facts are included to demonstrate the con-
sistency of prior indicia of disaffection with SEIU.
As previously observed, the first consolidated com-
plaint issued March 25, 1980.$ Apparently, the Teamsters
engaged in some organizational activity among the unit
employees around this time. The nature and extent of
that activity is not reflected. However, on April 30,
1980,' the Teamsters filed a representation petition (Case
4-RC-14184).' As previously noted, that petition was
pending on the dates of the instant trial.9
As a result of obvious growing unrest among the unit
employees, and the Regional Director's advice he could
not proceed further on the Teamsters' petition,10 the
Employer's officials- decided to afford the employees an
early opportunity to express their desires regarding union
representation. Thus, there is evidence that the Employ-
er requested the Regional Director to make an exception
to the Board's general rules governing scenarios depicted
herein. For example, on May 17, 1980, the Employer's
attorney wrote Regional Director ' Hirsh. The letter out-
lined the factual posture to that date. It noted the unrest
among the employees and the existing competing inter-
ests of the labor organizations involved. The letter urged
7 There is some evidence that sometime in the spring of 1980, some of
the employees revoked their checkoff authorization and/or stopped
paying dues to SEIU. It is unclear what action, if any, was taken thereaf-
ter to enforce the union-security and checkoff provision In any event, I
,find that matter irrelevant
fi A variety of unfair labor practice charges on which complaints had
not been issued were filed between December 1979 and March 25, 1980,
See par. 1, SEIU Exh. 2 I consider each of these charges immaterial
9 This procedure accords with longstanding Board precedent A repre-
sentation petition will be held in abeyance when pending unfair labor
practice charges are based on conduct of a nature that has a tendency to
interfere with employee free choice in an election, were one to be con-
ducted on the petition. Holt Bros., 146 NL11B 383, 384 (1964); Columbia
Pictures Corp., 81 NLRB 1313, 1314 (1949).
ib The outstanding and yet unlitigated issues in Cases 4-CB-10919 and
4-CB-3977 prevented the Board from conducting an election on the
Teamsters' petition. The outstanding unfair labor practice allegations re-
quired a resolution of the lawful character of the Employer's recognition
of, and contract with, SEIU Pending that resolution, the SEIU-employer
December 1979 contract constituted a'bar to the Teamsters' petition. To
make a determination in the Teamsters ' representation case that recogni-
tion of SEIU was unlawful and in violation of Sec. 8(a)(2) would be con-
trary to established Board policy that unfair labor practice allegations are
not properly litigable in representation proceedings. Town & Country, 194
NLRB 1135, 1136 (1972).
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Board to permit the employees to express their repre-
sentational feelings. This evidence presumably was ad-
duced to demonstrate the Employer's need for, and good
faith in, resolving the issues . I rejected the Employer's
additional efforts to adduce' subjective evidence of -its
motivation regarding the decision to resort to self-help,
as irrelevant.
The Employer undertook to have an election conduct-
ed by an impartial third party. It was contemplated the
cost of this service would be shared equally among all
the parties participating in the election. Though Team-
sters, SEIU, and UE appeared on the ballot, the expense
actually was borne by the Employer and UE, in equal
shares.
I rejected efforts to adduce evidence assertedly tend-
ing to prove a conspiracy between UE and the Employ-
er in arranging the election. Though I recognize such
evidence may well demonstrate the coercive character of
the June 6 election, I fmd the proffered evidence unnec-
essary and, not critical. Such a conspiracy was not al-
leged. In this context, I fmd it irrelevant. Moreover, the
offers of proof regarding such evidence show the parties
offering it were engaged in a fishing expedition.
More cogent evidence, consistent with the pleadings,
of the election's coercive nature is the undisputed fact
the alleged unfair labor practices evolving from the com-
plaint in Cases 4-CA-10919 and 4-CB-3977 had not yet
been resolved on the election date. See Holt Bros. and
Columbia Pictures Corp., supra; Henry Colder Co., 163
NLRB 105, 109 fn. 11 (1967); U.S. Coal & Coke Co., 3
NLRB 398, 399 (1937). It is apparent that the pending
cases had a tendency to inhibit a free election. The es-
sence of those allegations portray the Employer having
rendered, and SEIU having accepted, unlawful assist-
ance. Such a backdrop clearly is not conducive to a free
election atmosphere. Further, the disposition of the pend-
ing unfair labor practice complaint allegations might
have resulted in their dismissal. That event would have
precluded the very existence of a question concerning
representation . (E.g., Big Three Industries, 201 NLRB 197
(1973).) In this latter framework, it is clear the proffered
evidence would be superfluous.
Around the time the Teamsters filed its petition, UE
apparently engaged organizational efforts among the unit
employees. The details of that effort are obscure. How-
ever, the possible interests of UE in representation of the
unit employees was known at least on the date the
Teamsters' petition was filed. Thus, the Regional Direc-
tor, by letter dated April 30, advised UE the petition had
been filed. The letter, in salient part, states "our [the
Board 's] information indicates' your organization [UE]
may have an interest in the above proceedings [the
Teamsters petition]."
Some time before May 23, 1980, the Employer's attor-
ney telephonically arranged to have Dr. Wells H.
Keddie, associate professor of ' labor studies, Livingston
College, Rutgers University, conduct a representation
election among the unit employees. By letter dated May
23 to Keddie, the Employer's attorney ' confirmed the
election arrangements . Copies of that letter and its enclo-
sures (discussed below) were sent to UE, Teamsters, and
their representatives. The confirmation letter contained
drafts of a notice of election and sample ballot. t i These
documents had been prepared at Keddie's request.
Keddie ultimately approved the documents, including
the foreign language notices, submitted to him. It was
the Employer's attorney who arranged for final repro-
duction.
The election was scheduled for June 6, 1980. On May
26, the Teamsters' attorney dispatched a telegram to
Keddie protesting the conduct of the election. On June
5, Teamsters attorney telegraphed Keddie that Teamsters
did not desire to appear on the ballot. Keddie testified he
received the first telegram before the election. He could
not recall whether he was aware of the second telegram
before he proceeded with the balloting. A confirmation
copy of the telegram, in evidence, shows a receipt date
of June 6. In any event, Teamsters remained a choice on
the ballot.
On the scheduled election day, Keddie appeared at the
plant. A student assistant accompanied him. Keddie was
interrogated extensively concerning the election proce-
dures. He fully described preelection arrangements, the
conduct of the balloting, and postelection details. It is
unnecessary to recount each such element. My review of
Keddie's activities convinces me he made substantial and
careful efforts to assure the election would be conducted
in accordance with Board standards. 112
There were 144 employees eligible to vote. The tally
of ballots prepared by Keddie shows UE received 120
votes; Teamsters received 10 votes; SEIU received 2
votes; no union received 2 votes; and 3 ballots were
void. Thus, a total of 137 ballots were cast.
Keddie served the parties present, the Employer and
UE, with a handwritten tally of ballots which contained
his certification that UE won the election on June 6.
According to the testimony of Harry Authelet, UE or-
ganizer, recognition was orally granted to UE by SMS.
Almost immediately, UE and the Employer engaged in
collective bargaining. Approximately 10 bargaining ses-
sions were held. Authelet testified the parties reached
tentative agreement on terms of a complete collective-
bargaining contract. Among the agreements is a provi-
sion whereby the employer recognizes UE as exclusive
bargaining agent for the production and maintenance em-
ployees, and union-security and checkoff, clauses. The
UE-employer agreement provides for wage increases.
Authelet testified those wage increases, the grievance
procedure, and some other unidentified tentative agree-
ments have been implemented. At the time of the instant
trial, the UE-employer agreement had not been signed.
" The election notice was in English . Sometime later, 'Spanish and
Italian versions were submitted to Keddie. As indicated above, the ballot
provided choices among SEIU, UE, Teamsters, or no union.
12 Though a challenged ballot procedure existed, there was no method
by which a party could interpose objections to conduct affecting the
election results The absence of such procedure does not, however , relate
to assurance that all eligible voters could vote secretly on the widest pos-
sible choice
S.M.S. AUTOMOTIVE PRODUCTS 41
B. Analysis
1. The SEIU-employer cases
The General Counsel contends SMS violated Section
8(a)(1) and (2) by recognizing SEIU on December 7,
1979, and entering into a collective-bargaining agreement
with it on that date at a time when the Employer knew
SEIU had lost its status as majority representative. The
General Counsel's theory of the case is predicated on
Kenrich Petrochemicals, 149 NLRB 910, 911 (1964); Hart
Motor Express, supra, and their progeny, NLRB v. Pepsi-
Cola Bottling Co., 187 NLRB 15, 18 (1971), enfd. 454
F.2d 5 (1972); Presbyterian Community Hospital, 230
NLRB 599 (1977); and Clark Equipment Co., 234 NLRB
935 (1978), and 249 NLRB 660 (1980). Further, the Gen-
eral Counsel contends SEIU violated Section 8(b)(1)(A)
and (2) by entering into the December 7 collective-bar-
gaining agreement at a time when it knew it had lost its
majority status; and by later implementing the union-se-
curity and checkoff provisions. Additionally, it is assert-
ed that the Employer discriminated against its "employees
in violation of Section 8(a)(3) of the Act by agreeing to,
and implementing, the terms of the union-security and
checkoff provisions.
The Employer urges it was entitled to rely on SEIU's
presumptive majority. The Employer Claims it had no
knowledge that SEIU no longer represented a majority
'of unit employees. Moreover, the Employer asserts the
Deluxe Metal, supra, rule prevents a finding of violation
against it inasmuch as the December 7, 1979 contract
was executed within the so-called insulated period.
SEIU contends the evidence fails to establish that in
fact it had lost its majority status and that, in any event,
it did not know of such a loss. Additionally, SEIU as-
serts a finding of violation is barred by the Supreme
Court's decision in Linden Lumber v. NLRB, 419 U.S.
301 (1974).
I find the arguments of the Employer and SEIU only
superficially appealing. An isolated view of the Employ-
er's December 1979 conduct seemingly calls for its exon-
eration from the allegations that it unlawfully continued
its recognition of SEIU and signed the December 7, 1979
agreement. When it engaged in,that conduct,,UAW and
Teamsters had withdrawn, their, respective October and
November 1979 representation petitions.
Although the Employer had been presented with the
employees' November 15 petition,' that fact arguably
constitutes no more than a bare claim that SEIU no
longer enjoyed its presumptive ' (Triplett Corp., 234
NLRB 985 (1978)) majority status. The parties agree that
such presumption is' rebuttable, Clark' Equipment Co.,
above at 937. It is the General Counsel's burden to
present the rebuttal evidence. American Beef Packers, 187
NLRB 996, 997 (1971).
Contrary to SEIU, I conclude the General Counsel
has sustained her burden of rebutting the presumptive
majority. SEIU argues the November 15 employee peti-
tion, on which the General Counsel relies, is ineffective
for rebuttal purposes. Thus, SEIU submits the circum-
stances surrounding the preparation and signing of that
petition vitiate its purported probative value. First, it is
argued that UAW Attorney Katz' suggestion to DiBene-
detto.clearly comprises a subterfuge to circumvent the
Board's contract-bar rules. Next, it is asserted a language
barrier existed among the employees. This barrier., it is
suggested, diminishes the value of the signatures on the
petition because it creates uncertainty as to whether the
foreign language employees understood the import of
what they signed.
The Hart Motor line of cases shows that the Board will
give credence to employee petitions similar to those in-
volved here. Whether the November 15 petition effec-
tively serves its intended purpose, is an important thresh-
old issue. If, in fact, the petition does not demonstrate
the incumbent labor organization lost its majority status,
then no violations can be based on the December 7, 1979
recognition and collective-bargaining agreement between
the Employer and SEIU. Resolution of the issue requires
scrutiny of the surrounding circumstances.
The caption on the petition is clear and unambiguous.
The words used leave no room for doubt that their pur-
pose is to declare SEIU is not intended to be a collec-
tive-bargaining agent. That theme was continued during
the November 15 morning discussions among DiBene-
detto, Pologruto, and some other employees.
When DiBenedetto spoke to the employees during the
lunch hour that day he specifically told them, in English,
the petition's purpose was to sigr>ify the signatories no
longer wanted SEIU to represent them. That explanation
was repeated in Spanish and Italian."
The above circumstances persuade me the November
15 petition is a reliable indicator of the intention and de-
sires of its signatories. As noted, the petition contains 110
signatures. No serious challenge has been made to their
authenticity. The unit consisted of approximately 150
employees. Thus, I find the petition contains signatures
of substantially more than a majority, of-the unit employ-
ees. On all the foregoing, I conclude the November 15
petition shows SEIU did not represent a majority of unit
employees on that date.
I turn now to the issues of the parties' notice that the
majority had been lost. Such knowledge is an underlying
requirement of a violation under the cases cited by the
General Counsel.
The Employer, apparently conceding the circum-
stances, made it aware that some employees were dissat-
isfied with SEIU representation, contends it did not
know those feelings were that of a majority of employ-
ees. Under the second cited Clark Equipment case the
Employer urges that the various oral information re-
ceived concerning the November 15 petition does not
satisfy the knowledge requirements. I' disagree.
19 I do not agree with SEIU's postheanng argument that the General
Counsel needed to produce bilingual or foreign language employees to
prove the accuracy of the foreign language translations. In my view, the
General Counsel satisfied his burden through the testimony of IDiBene-
detto and Pologruto who claimed, without contradiction, that the, Span-
ish and Italian versions were presented to the employees That testimony
is sufficient to shift the burden to any Respondent to show the transla-
tions were not accurate accounts of DiBenedetto's English speech No in-
ference adverse to the General Counsel will be made because the poten-
tial employee witnesses are equally available to all parties Automobile
Workers Local 259 (Atherton Cadillac), 225 NLRB 421 In 3 (1976),
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The 'particular facts of the case at bar persuade me
that the Employer should be charged with full- knowl-
edge of what was contained in the November 15 peti-
tion. When Pologruto attempted to deliver the petition
to Blaise on November 15 he told Blaise the petition had
been signed by "over a hundred guys" who "no longer
wished the SEIU to be our collective bargaining agent."
Nevertheless, Blaise rejected the petition's tender. Then,
Blaise was told he should remember that the delivery of
the petition had been attempted.
Immediatley thereafter, UAW Attorney Katz prepared
a letter advising that at least 100 employees "do not
desire to be represented by SEIU." On November 16
Katz visited Employer Attorney Williams. He told Wil-
liams he had proof SEIU no longer represented a majori-
ty of employees. Williams refused the tender of Katz'
letter that contained the petition. It was dropped onto
Williams' .receptionist's desk. Immediately thereafter,
Katz dispatched his letters containing copies of the peti-
tion to all other parties and their representatives. The
evidence shows the Employer and Williams received
their letters on November 20 and 19, respectively. Final-
ly, on November 21, before Samuel and Blaise Mazzoni
left the room at the scheduled joint session with SEIU,
Pologruto orally reiterated he had previously attempted
to deliver the petition to the Employer and that it con-
tained evidence a majority of employees no longer de-
sired SEIU representation.
The Employer acknowledges it steadfastly refused'to
accept the various attempts at delivery of the petitions to
it. Also admitted are the various statements that the peti-
tions represented a declaration from a majority of em-
ployees that they no longer wanted SEIU to be their col-
lective-bargaining agent. Nonetheless, the Employer
urges it was entitled to rely on the long bargaining histo-
ry and the fact that the UAW and Teamsters petitions of
October and November 1979 had been withdrawn. Un-
disputedly, the withdrawals were based on untimeliness.
Thus, the Employer argues even their filing could not
have served as proof that SEIU lost its majority status.
In, essence, the Employer contends it was faced with
nothing more than bare claims of such a loss. The Em-
ployer concedes its refusal to accept delivery of the peti-
tion was deliberate.
I conclude the above-described circumstances are simi-
lar to the first-cited Clark Equipment case.14 There, the
employer claimed it was confronted with mere naked
claims the incumbent labor organization lost majority
status. There was no evidence that the employer made
any effort to confirm the validity of oral assertions of
majority loss or the signatures on an employee petition
that had been posted. The Board commented, "in this
context, [the employer] was not warranted in ignoring
the import of a specific listing of employees who had
purportedly signed authorization cards for the rival
union. ' . . . It could not reasonably be concluded that
such a list was the product of a handful of dissidents, but
11 The second Clark Equipment, 249 NLRB 660 (1980), resulted in dis-
missal . I find nothing in that Board decision that alters the substantive
portions of the first decision at 234 NLRB 935. The dismissal resulted
from a prior misconception of facts.
was in fact a substantially clear reflection of the [incum-
bent's] loss of majority status" (234 NLRB at 937).
In the case at bar, the Employer was orally and un-
equivocally advised of the nature of the petition and that
it contained over 100 signatures. The Employer blithely
ignored this information. On November 21, the joint em-
ployer-SEIU session was adjourned so the union repre-
sentatives could talk privately with the employees. The
events immediately preceding that adjournment were an-
other signal to the Employer that it might be in jeopardy
by continuing its relationship with SEIU.
At the trial, the envelope, contained Katz' November
15 cover letter and petition, addressed to the Employer
(Emp. Exh. 1) was produced in its original sealed
state.15 As previously noted, the envelope and its con-
tents had been received by the Employer on November
20, 1979. This sequence reflects the Employer's continu-
ing efforts to avoid delivery of the petition.
All the foregoing persuades me the Employer should
not be permitted to frustrate the otherwise orderly and
logical means by which the employee rights may be as-
sured. The Employer engaged in a persistent and studied
effort which, the facts show, threw the unit employees'
representational choices into mass confusion and turmoil.
In Regal Aluminum, 171 NLRB 1403, 1410-1412 (1968),
an employer refused to accept a union's letter that re-
quested recognition and bargaining. The Board held
there was, nonetheless, effective notice to the employer
so as to bind it to a refusal-to-bargain violation. In Regal,
there was evidence that the employer, when the refusal
was made, had actual notice of its contents. There were
earlier telephone conversations that apprised the employ-
er of what the letter contained. Here, it is more than rea-
sonable that the, Employer, and its agents,16 knew or sus-
pected what was contained in the letter from Katz. In all
the circumstances, I conclude the Employer was not jus-
tified in ignoring all the information at its disposal and its
failure to further investigate renders it appropriate that it
be charged with knowledge that SEIU lost its majority
as evidenced by the November 15 petition.
One of the Employer's arguments enhances my con-
clusions. Paradoxically, the Employer contrasts the
degree of its knowledge, on December 7, 1979, that
SEIU lost its majority-status with the knowledge of that
fact held by SEIU on that date. The_ Employer argues
the evidence warrants "a finding that SEIU has violated
Section 8(b)(1)(A) of the Act." This is so, as the Em-
ployer argues, because "unlike SMS, SEIU accepted,
read and examined the petition." Also, the Employer
notes that Teti was advised of the petition's import and it
was discussed among him and the committeemen on No-
vember 21. From this, the Employer asserts that though
it did not know SEIU no longer, represented a majority,
"The,SEIU clearly did." On analysis, it appears the only
difference between the information possessed by the Em-
15 The envelope was opened by Katz dung his testimony
16 It is interesting to note that Katz' November 15 letter that he mailed
to Williams was not produced at the trial, as was that which was sent to
the Employer. In this context, it is reasonable to conclude that Williams,
as the Employer's attorney, had opened the letter addressed to him This
knowledge arguably is imputable to the Employer
S.M.S. AUTOMOTIVE PRODUCTS
ployer and SEIU was that the latter actually had"exam-
ined the petition . In the instant circumstances , I do not
find this to be a valid or significant distinction. It was the
Employer's own exercise in avoidance that prevented it
from being placed in precisely the position as SEIU with
respect to knowledge of lost majority.
With respect to knowledge , SEIU does not claim it
had no actual knowledge of the petition . Indeed, Teti ad-
mitted receiving it on November 19 and looking at it
during the November 21 meeting . Instead , SEIU con-
tends it was possessed of insufficient objective evidence
to apprise it of the majority loss. In this connection,
SEIU attacks the form of the petition that it had re-
ceived. The original petition consists of a single page. At
the top there appears the date and the caption that has
been quoted hereinabove . Katz made xerox copies of the
petition. The xerox copies appeared on two pages. One
of the pages contained the contents of the petition 's fact.
The second xerox page was a duplicate of the reverse
side of the original petition . Thus, the second xerox page
does not contain the caption . Thus, SEIU argues the
copy of the petition submitted to it is deficient for its in-
tended purpose because the second xerox page bears no
caption and cannot be related to the first page. I dis-
agree . The second page is replete with signatures. The
date "11/15/79" appears to have been inscribed virtually
next to each signature . This format follows what appears
on the first xerox page. This observation may be coupled
with other evidence . Thus, at each attempted personal
delivery of the petition (or copies ), SEIU representatives
or its attorney were told the petition contained over 100
signatures . Clearly, the first xerox page does not contain
that number . The combination of pages do,,indeed, con-
tain 110 signatures . Accordingly, I find this contention of
SEIU without merit.
Additional matters are raised by SEIU regarding ob-
jective considerations . SEIU acknowledges that the com-
mitteemen wore UAW buttons during the November 21
meeting. However, SEIU argues that fact became insig-
nificant when, within a day or two thereafter , it received
the , Regional, Director's advice that UAW had with-
drawn its representation petition.
The General Counsel and counsel for SEIU stipulated
that for the period of 6 months immediately preceding
April 18 , 1980, no unit employee revoked or attempted
to revoke his dues-checkoff authorization for payment of
SEIU dues. SEIU cannot use this factual stipulation to
support the claim "there is scant objective evidence of
lack of majority support. The Board declines to equate
the absence of majority employee financial support for
an incumbent union with evidence indicating that most
of the employees ' no longer desire to be represented by
that labor organization . The fact that less than a majority
of union employees are on dues-checkoff does not neces-
sarilyn demonstrate their union had lost its majority status.
Guerdon Industries, 218 NLRB 65 '8 (1975). Although the
Guerdon case arose in the context of an alleged refusal to
bargain by an employer, the principle relating to the un-
reliability of checkoff authorizations to prove majority
status may be equally applied here.
Finally, as noted, SEIU argues it was privileged to
rely on the notices that the October and November peti-
43
lions had been withdrawn. That identical defense was
interposed in Pepsi-Cola Bottling Co, above, and was re-
jected. Similarly, I conclude the circumstances require
like rejection. Indeed, the Pepsi-Cola disposition of this
issue casts serious doubt on SEIU's claim it had not
known its majority had been lost.
In sum, I find none of the examples expounded by
SEIU sufficient to overcome the unambiguous and un-
equivocal manifestation by unit employees of their wish
to no longer be represented by that labor organization.
As noted, the principal thrust of the SEIU defense is
based on Linden Lumber, supra. I find that case inappo-
site. In that case the Supreme Court held an employer
whih has not committed independent unfair labor prac-
tices does not violate Section 8(a)(5) of the Act by refus-
ing to recognize authorization cards as evidence of a
union's majority status, even though the employer fails
to petition the Board for an election. In short, that case
stands for the proposition that an employer which has re-
jected a claim of a union majority through authorization
cards cannot be required to bargain without an election.
In relevant part, the Court acknowledged that authoriza-
tion cards were unreliable indicators of employee desires
in certain situations. Linden Lumber is distinguishable. It
arose in the backdrop of the establishment of initial rec-
ognition of a union. SEIU seeks to extend the Court's
holding to the instant situation which involves the termi-
nation or dissolution of the majority status of an incum-
bent labor organiztion. I can find no suggestion in the
Linden Lumber decision by which it can be said the
Court intended its holding should have such broad appli-
cation.
I find that Hart Motor," and the other cases cited by the
General Counsel, more in point. The rules established in
Deluxe Metal, affirmed in City Cab, 128 NLRB 493
(1960), provide a 60-day insulated period during which
the parties to a collective-bargaining contract may nego-
tiate and execute a new or amended agreement without
the intrusion of a rival petition. Further, those rules pro-
vide only a petition timely filed before' the insulated
period is effective to suspend operation of that insulated
period. This contract-bar principle was designed to main-
tain industrial stability. It presumes, however, the negoti-
ating parties have legitimate interests in which there
should be unfettered persuit. General Dynamics Corp.,
158 NLRB 956, 958 (1966). This freedom to negotiate af-
forded the parties during the insulated period does not,
however, necessarily establish a defense against unfair
labor practice charges arising from the execution of a
contract during the insulated period. Ken rich Petrochemi-
cals, and Hart Motor Express, above. In effect, the Hart
Motor line of cases carves out an exception to the Deluxe
Metal rules. In my view, that exception is sound, logical,
and necessary to provide the full ambit of statutory
rights to employees. There are situations in which the
premise underlying the establishment of the insulated
period does not exist. The instant case presents such a
situation. Thus, the filing of the UAW and Teamsters pe-
titions in October and November 1979 are some evidence
of employee disaffection with their bargaining represent-
ative. Efforts to permit the employees to voice their true
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
desires were initiated by the filing of those petitions.
They were, of course, barred by the Deluxe Metal rules.
Immediately , however, the employees signified the full
extent of their disaffection when over two-thirds of them
signed the November 15 petition. This act, I conclude,
negates the existence of a legitimate or genuine interest
of SEIU in pursuing collective-bargaining negotiations.
Thus, I view the Hart Motor, and similar decisional au-
thority, a rational means by which employees may freely
express their views about unionization . The holdings of
Hart Motor, and its progeny, are not inconsistent with, or
contradictory to, the philosophy that was underscored in
Deluxe Metal. Had SEIU and the Employer given effect
to the November 15 petition, it is likely a renewal con-
tract would not have been signed on December 7. At
that point, -new representation petitions could have been
filed. The processing of such petitions presumably would
have resulted in a Board-conducted election at a relative-
ly early date. The employees would have made their se-
lection regarding representation. All interested parties
would have participated. The continuing fomenting ' of
unrest, exemplified by the variety of unfair labor practice
charges and representation petitions which were filed in
1980, would have ceased. The net effect of the SEIU-
employer activity was to proliferate employee unrest and
industrial stability. The situation virtually cries out for a
remedy.17 In effect, those parties engaged in activity
which set in motion, and nurtured, such obfuscation of
employee free choice as the Third Circuit Court of Ap-
peals observed comprises the statutory underpinnings.
Herein, the Employer and SEIU plainly disregarded the
simple, yet eloquent, expression of employees. See
NLRB v. Air Master Corp., 339 F.2d 553, 556 (1964), in
which the court commented, "It is interference with the
employees' choice . . . which the statute proscribes."
Clearly, the cases on which the General Counsel relies
are designed to protect employee choice in the peculiar
factual pattern under consideration. I fmd these cases
govern the disposition of the issues.
To summarize, I have found the November 15 em-
ployee petition constitutes valid evidence that SEIU lost
its status as majority representative of the affected unit
employees; SEIU and the Employer each had effective
notice of that lost majority before they concluded their
December 7, 1979 negotiations and before they signed a
new collective-bargaining agreement on that date; and
the union-security and checkoff provisions of the De-
cember 7, 1979 contract had thereafter been implement-
ed. Accordingly, under the authority of the cases pre-
sented by the General Counsel, I fmd that the Employer
violated Section 8(a)(1), (2), and (3) and that SEIU vio-
lated Section 8(b)(1)(A) and (2) of the Act, as alleged.
2. The UE-employer cases
The General Counsel contends the June 6 election vio-
lates Section 8(a)(1) of,the Act in violation of rules for
lawful employee polls enunciated in Struksnes Construc-
17 For this reason, and because nearly 1 year has elapsed since the first
events, expedited treatment has been accorded this decision The compre-
hensive briefs by all parties indicates no prejudice to any of them from
such procedure
tion Co., 165 NLRB 1062 (1967). Specifically, the Gener-
al Counsel relies on the Board's declaration in Struksnes
that "the polling of employees by an employer will be
violative of Section 8(a)(1) unless the following safe-
guards are observed . . . and (5) the employer has not
engaged in unfair labor practices or otherwise created a
coercive atmosphere." (165 NLRB at 1063.)'
The Employer claims the facts do not show existence
of a tainted atmosphere. In this connection, the Employ-
er relies on its asserted propriety, of its 1979 dealings
with SEIU and its belief its December 1979 conduct
does not constitute any unfair labor practice. No conten-
tion is made that the June 6 election, does not comprise a
"poll" within the contemplation of Struksnes.
The Employer argues that a poll is not per se unlaw-
ful. I agree . It is true, under normal circumstances, that
an election conducted by an impartial overseer is permis-
sible. This is so when it is demonstrated that the conduct
of the poll safeguarded the expression of true employee
desires regarding representation . Interboro Chevrolet Co.,
111 NLRB 783, 784 (1955). I have concluded Professor
Keddie took substantial precautions to assure maximum
participation in, and secrecy of, the June 6 election. This,
however, does not resolve the issue.
The fifth requirement of Struksnes is addressed to an
employer's prepoll conduct. Thus, polls are permitted if
an employer had engaged in no misconduct under the
Act or in an atmosphere otherwise uncoercive. I have
found, in section II,B,1 , above, that the Employer violat-
ed Section 8(a)(1), (2), and (3) by its 1979 conduct rela-
tive to SEIU.
Also, I have concluded, in section II,A, above, that
there existed an atmosphere tending to interfere with and
coerce employee freedom of choice. See references to
Holt Bros. and Columbia Pictures Corp., above. Also see
Panda Terminals, 161 NLRB'1215, 1223-1224 (1966).
The above factors reflect that the June 6 election was
not conducted in conformity with Struksnes standards.
Moreover, there is no evidence that the Employer
ever repudiated its December 1979 contract or its collec-
tive-bargaining relationship with SEIU. As noted, Team-
sters filed a representation petition (currently pending) in
April 1980. Also,'some time in early 1980, UE interject-
ed its interest in representing the unit employees. In this
context, the Employer's failure to do anything to disasso-
ciate itself from SEIU, and its contract, created confu-
sion and festered a coercive atmosphere. Simply stated,
the employees were confronted with knowledge that
their employer was contractually bound to SEIU ' at the
very time the Employer made arrangements for, "and
conducted, a poll among them.
In assessing the facts in light of Struksnes "the time,
place, personnel involved, information sought, and .. .
the employer's known preference must be considered." (165
NLRB at 1062. Emphasis added.) I fmd the italicized
words significant. Herein, the poll was conducted during
the term of the SEIU-employer contract. 'Presumably,
then, the open question harbored by the employees is
why the Employer apparently was equivocating over its
relationship with SEIU. A variety of answers may exist
to that question. Whatever the answer may be, it is indis-
S.M.S. AUTOMOTIVE PRODUCTS
putable that there must be some adverse impact on free-
dom of employee choice.
Regarding the poll, the General Counsel asserts that
the Struksnes standards were not met for another reason.
Specifically, the General Counsel claims the facts show
the Employer had no legitimate reason for conducting
the poll in light of the pending Teamsters petition. In
Struksnes, the Board noted "a poll taken while a petition
for a Board election is -pending does not serve any legiti-
mate interest of the employer that would not be better
served by the forthcoming Board election." 165 NLRB
1063. The Employer contends the pendency of the
Teamsters petition is irrelevant. The Employer urges
pending representation petitions reflect the absence of le-
gitimate employer interest in a poll only when that peti-
tion would result in a forthcoming election. As previously
noted, an election under the Teamsters petition was
blocked because of the pending SEIU-employer unfair
labor practice charges. I do not concur in the Employ-
er's interpretation of the Board's use of the word "forth-
coming," That word does not suggest, as the Employer
claims, that no election would evolve from the Team-
sters petition. The Employer's interpretation might have
merit if the Board had used "forthwith" instead of
"forthcoming." The former word is a more precise ex-
pression of immediate action. Thus, I conclude the Em-
ployer erroneously interpreted the meaning of Struksnes.
In doing so, the Employer disrupted the orderly proce-
dures for disentangling the facts present. Left to Board
processes, the Teamsters petition might be dismissed or
withdrawn if no merit were found to the SEIU-employer
cases. If, on the other hand, merit were found to those
unfair labor practice cases, the Teamsters petition would
remain pending and an election conceivably could' be
conducted after the unfair labor practices had been reme-
died. In either case, the Employer was not at liberty, on
June 6, to accord recognition to any labor organization
other than SEIU and then, only if the 1979 recognition
were declared lawful.
Patently, Struksnes was designed to permit an employ-
er, in appropriate circumstances, to ascertain the extent
of employee support for a union claiming recognition. I
conclude the facts do not provide a basis for such in-
quiry. Accordingly, I find the June 6 employer-spon-
sored election had no legitimate purpose.
On all the foregoing I find that the Employer's spon-
soring of the June, 6 election, and permitting it to be held
on its premises, was in violation of Section 8(a)(1) of the
Act.
As indicated, the Employer granted recognition to UE
immediately after the ' June 6 election. Thereafter, UE
and the Employer reached :tentative agreement on a
complete collective-bargaining contract. The General
Counsel, citing Ladies, Garment Workers (Bernhard-Alt-
mann) v. NLRB, 366 U.S. 731 (1961 ), claims it violated
Section 8(a)(2) and (1) and UE Section 8(b)(1)(A) of the
Act by according recognition to UE.
The posthearing briefs filed by the Employer and UE
do not directly address the Bernhard Altmann issue. Ap-
parently, these parties rely on a determination that the
June 6 election was conducted in a noncoercive atmos-
phere. Of course, I have found the contrary. Also, I pre-
45
sume.the silence of those parties on this issue denotes
their `4ef that the Bernhard-Altmann holding is inappo-
site and distinguishable.
In Bernhard-Altmann, an employer extended recogni-
tion on a bare assertion that it represented a majority of
employees in an appropriate bargaining unit. Neither
party made any effort to investigate the accuracy of the
union's assertion. It was later discovered that the union,
in fact, had not enjoyed majority status when recognition
was granted. No other labor organization was seeking
representational rights at that time.
The Supreme Court sustained the Board's finding that
the employer rendered unlawful assistance in'violation of
Section 8(a)(2) and (1) and the union violated Section
8(b)(1)(A) of the Act by the grant and acceptance of rec-
ognition. Thus, literally, the Bernhard Altmann case re-
lates to recognition of minority unions. The broad princi-
ple that evolved from that decision is that Section 8(a)(2)
and (1) and Section 8(b)(1)(A) are violated when recog-
nition is accorded at a time when the subject labor orga-
nization does not represent a majority of the employees
in the appropriate unit.
Subsequent decisions make it clear that the unit major-
ity must be uncoerced. In NLRB v. Revere Metal Art Co.,
280 F.2d 96 (2d Cir. 1960), cert. denied 364 U.S. 388
(1960), the court held certain signatures obtained through
solicitation by the employer could not be counted in
computing the union's majority because they resulted
from the employer's unlawful assistance in violation of
Section 8(a)(2). Specifically, the court held the union did
not, enjoy an uncoerced majority. The court rezoned the
union had been unlawfully imposed as exclusive bargain-
ing agent on the employees. (280 F.2d at 100.)
Evidence of such unlawful position of bargaining rep-
resentative was present in Mr. Glass, Inc., 220 NLRB
104, 114-115 (1975). In that case, the employer engaged
in a variety of misconduct violative of the Act. by which
the union obtained its majority, The Board left undis-
turbed Adminsitrative Law Judge Corbley's conclusions
that the employer's active (and passive) conduct in de-
veloping the union's majority status resulted only in pro-
viding the union with an'uncoerced majority. Because the
majority was not uncoerced, the recognition granted the
union was held unlawful. In Mr. Glass, the union was not
charged with a violation.
In Seaview Manor Home, 222 NLRB 596 (1976), one of
the co-owners solicited employee signatures on authori-
zation cards. Recognition was granted on the basis of the
authorization cards. A collective-bargaining agreement
was later executed. The participating union and the em-
ployer were held to have violated Section 8(b)(1)(A) and
(2),11$ and Section 8(a)(1), (2), and (3) of the Act because
the employer granted, and the union accepted, recogni-
tion based on an uncoerced majority.
Herein, there is evidence the Employer rendered such
unlawful assistance to UE as negates the majority votes
UE obtained during the June 6 balloting. As found
above, the Employer violated Section 8(a)(1) by sponsor-
18 The parties unplemented union-security provisions contained in their
contract.
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing and participating in the June 6 poll. The poll provid-
ed the UE with the vehicle for establishing its majority.
I conclude this activity is analogous to some of that con-
tained in Mr., Glass. The totality of events leading to, and
including, the poll in which instant Employer participat-
ed persuades me the UE majority was not uncoerced.
Accordingly, I find, under all the above-cited authority,
that the Employer violated Section 8(a)(1) and (2) and
UE Section 8(b)(1)(A) by their dealings with one another
in June 1980, and thereafter.
The General Counsel proposes an additional theory on
which it should be concluded the Employer and UE vio-
lated Sections 8(a)(1) and (2) and 8(b)(1)(A), respective-
ly. Thus, the General Counsel contends the facts prove
such violations under Midwest Piping, 63 NLRB 1060
(1945). In Midwest Piping, the Board declared it to be an
unfair labor practice for an employer to recognize one of
two or more competing unions after a representation
question had been submitted to the Board by the filing of
a petition. The General Counsel submits the Teamsters'
April 1980 petition, therefore, precluded recognition of
UE and subsequent bargaining between it and the Em-
ployer. See also Shea Chemical Corp., 121 NLRB 1027
(1958).
A real question concerning representation exists when
a competing union files a petition supported by a suffi-
cient showing of interest. Novak Logging, 197 NLRB 805
(1972).
A variety of circuit courts have rejected the Board's
view. UE and the Employer have cited many such cases.
Generally, the application of the Midwest Piping principle
is criticized by the courts as a perversion of the Act's
intent and eradication of the employees' right to select
their chosen representative without undue delay.
Noteworthy is the Third Circuit's opinion in NLRB v.
Swift & Co., 294 F.2d 285 (1961). In that case the court
held the Board must have more substantial evidence, of a
real question concerning representation than the mere
filing of a petition. In Swift, there was no evidence to
support the challenging union's claim of majority status
except that the petition had been filed. The court con-
cluded no real question concerning representation exist-
ed; the mere filing of a petition coupled with the Board's
scheduling of a hearing did not itself establish such a
question. Nonetheless, the Board continued to apply its
Midwest Piping test. Connie Jean, Inc., 162 NLRB 154
(1966); Kona Surf Hotel, 201 NLRB 139 (1973). 19
I do not consider the instant situations to present a
"straight" Midwest Piping situation. In that case, an em-
ployer, was charged with having unlawfully assisted an
incumbent union by signing a contract with it at a time
rival representation petition was pending. Herein, the
recognition and bargaining under attack is that which
was granted to, and conducted with, a nonincumbent.
Moreover, the alleged unlawful conduct occurred at a
time when the putative incumbent union (SEIU) express-
ly claimed the validity of its representational rights de-
veloped by its bargaining history with the Employer and
19 The Third Circuit continued its rejection of Midwest Piping. NLRB
v. Air Master Corp., 339 F.2d 553 (1964), Suburban Transit Corp. v.
NLRB, 499 F 2d 78 (1974).
the December 1979 collective-bargaining agreement.
Thus, on May 13, 1980, the SEIU attorney wrote the
Employer's attorney to protest the proposed June 6 elec-
tion. That letter referred to the December 1979 contract
and stated it "is presently in full force and effect. [SEIU]
will expect [the Employer] to honor and observe all the
terms and conditions of that collective-bargaining agree-
ment."
The pendency of the April 1980 Teamsters petition is
enough for the Board's application of its Midwest Piping
principle. Additionally, I perceive the renewed and con-
tinuing claim by the incumbent, SEIU, and an additional
factor tending to prove a real question concerning repre-
sentation existed, and a potential basis for satisfaction of
the Third Circuit's "substantial evidence" requirement.20
In the Air Master case the employer recognized a non-
incumbent. The court found it objectionable- that the
Board's underlying decision effectively held "an employ-
er interferes coercively with his employees' choice of a
bargaining union when he correctly determines, without
awaiting an election, that they have chosen a new union
to supercede the incumbent." (339 F.2d at 556. Emphasis
added.)
Manifestly, the instant Employer's resolution of the
representational issue in June 1980 was predicated on cir-
cumstances which make it uncertain the Employer'sse-
lection was correct. That such a resolution could not
have been made is established by SEIU's May 13 claim
of majority, coupled with the pending Teamsters peti-
tion. Faced with these factors, the Employer nonetheless
recognized yet a third labor organization. The situation
herein is more complex than Midwest Piping.
An additional factor cannot be ignored. That factor
consists of the effective notice, through the November
15, 1979 employee petition, that a substantial majority of
employees did not desire SEIU to represent them. That
petition does not indicate whether the employees wanted
representation by any other labor organization. I consid-
er that petition some notice to the Employer that it
would act on its peril if it were to make a choice, or
assist in making one, in the employees' stead.
UE argues that the General Counsel's reliance on Mid-
west Piping is a continued example of the Board's efforts
to preserve to itself exclusivity in resolving representa-
tional questions. I do not view the proposal of the Mid-
west Piping doctrine intended for that purpose. It is true
the General Counsel's brief alludes to the Board's au-
thority in such matters. However, the General Counsel
does not explicitly challenge the ability of parties to uti-
lize the services of impartial third parties in such cases.
Rather, I view the General Counsel's position to pro-
mote resolution of the representational question through
Board processes as simply meaning he believes that is the
more appropriate vehicle because those procedures al-
20 Discussion of the circuit court cases is presented for broadest analy-
sis of the important cases on which UE and the Employer rely It, also, is
intended to convey my view that the unusual and peculiar facts present
may fulfill even the requirements of the appeals tribunal with', jurisdiction
over the instant litigation I do not seek to presume on the court's philos-
ophy, decisional judgments, or authority.
S.M.S. AUTOMOTIVE PRODUCTS 47
ready have been invoked by the filing of the Teamsters
petition.
On all the foregoing, I conclude that UE and the Em-
ployer violated Section 8(a)(1) and (2) and Section
8(b)(1)(A) of that Act, respectively, as alleged.
CONCLUSIONS OF LAW
1. S.M,S Automotive Products, Inc. is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. SEIU, Teamsters, and UE are labor organizations
within the meaning of Section 2(5) of the Act.
3. The Employer unlawfully assisted a labor organiza-
tion and interfered with, restrained, and coerced employ-
ees in violation of Section 8(a)(2) and (1) of the Act
when it granted recognition to, and entered into a collec-
tive-bargaining agreement with, SEIU on and after De-
cember 7, 1979.
4. The Employer unlawfully discriminated against its
employees in violation of Section 8(a)(3) and (1) of the
Act when it negotiated and implemented union-security
and checkoff agreements with SEIU on and after De-
cember 7, 1979.
5. SEIU restrained and coerced employees in violation
of Section 8(b)(1)(A) of the Act by accepting recognition
as exclusive collective-bargaining representative from the
Employer on December 7, 1979, and thereafter signed a
collective-bargaining agreement with the Employer.
6. SEIU unlawfully discriminated against employees in
violation of Section 8(b)(2) of the Act when it negotiated
and thereafter implemented terms of a union-security and
checkoff agreement with the Employer on and after De-
cember 7, 1979.
7. The Employer interfered with, restrained, and co-
erced its employees in violation of Section 8(a)(1) of the
Act by unlawfully sponsoring and conducting a poll of
its employees on June 6, 1980.
8. The Employer unlawfully assisted a labor organiza-
tion and interfered with, restrained, and coerced employ-
ees in violation of Section 8(a)(2) and (1) of the Act
when it granted recognition to, and thereafter bargained
with, UE on and after June 6, 1980.
9. UE restrained and coerced employees in violation of
Section 8(b)(1)(A) of the Act when it accepted recogni-
tion from the Employer as collective-bargaining repre-
sentative of an appropriate unit of employees and there-
after bargained with the Employer.
10. The aforesaid' unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.? 1
THE REMEDY
Having found that the Employer, SEIU, and UE en-
gaged in a variety of unlawful conduct under the Act, I
will recommend they cease and desist from engaging in
such conduct in the future and affirmatively take such
21 At the conclusion of the General Counsel's case-in-chief, the Re-
spondents moved to dismiss the complaints. I reserved my ruling on
those motions. On the above conclusions of law, all such motions are
denied.
action as will dissipate the effects of their unfair, labor
practices.
The Order will require the Employer to withdraw all
recognition from SEIU as the collective-bargaining rep-
resentative of the unit consisting of production and main-
tenance employees, and that SEIU be ordered to cease
acting as such representative, unless and until SEIU has
demonstrated its majority status pursuant to a Board-con-
ducted election among the unit employees.
Also, the Order will require the Employer and SEIU
to cease giving force and effect to, and in, any way im-
plementing, the, terms of their December 7, 1979 collec-
tive-bargaining agreement. However, nothing contained
herein will be construed as requiring the Employer to
vary the wage, hour, seniority, or other substantive
terms of employment that the Employer may have estab-
lished in performance of the contract, or to prejudice the
assertion by its employees of any right they may have
under the contract.
Additionally, inasmuch as the union-security and
checkoff provisions had been implemented, the Order
will require both the Employer and SEIU, jointly and
severally, to reimburse all employees for moneys paid by
them, if any, or deducted from their earnings, if any, for
initiation fees, dues, assessments, or other financial obli-
gations of membership in SEIU. Interest on such reim-
bursement will be computed as prescribed in Isis Plumb-
ing Co., 138 NLRB 716 (1962), and Florida Steel Corp.,
231 NLRB 651 (1977).
Because I have found the June 6, 1980 poll unlawful,
and the Employer acted on its results, it is appropriate
the Order require the Employer to stop' giving effect to
the poll.
To remedy the unlawful recognition of UE in June
1980, the Employer will be required to withdraw all rec-
ognition from UE as collective-bargaining representative
of the production and maintenance employees, and ' the
UE will be ordered to cease acting as such representa-
tive, unless and until UE' will have demonstrated its ma-
jority status ' pursuant to a Board-conducted election
among those unit employees: The Employer and UE also
will be ordered to cease giving force and effect to all
tentative agreements reached between them, except that
nothing contained herein will be construed as requiring
the Employer to vary the wage, hours, seniority, or
other substantive tentative agreements which the Em-
ployer may have established in their performance, ' or to
prejudice the assertion by the unit employees of any
right that they may have under such tentative agree-
ments . Those parties will also be ordered to refrain from
signing a collective-bargaining agreement unless and
until UE has been certified.
The General Counsel has requested issuance of a
broad remedial order. It is claimed that the Employer, in
particular, "has demostrated a proyclivity to violate the
Act." The Board, in Hickmott Foods, stated, "where .
[there is a background of violation] and it can-be further
shown that a Respondent, either previous to or concur-
rently with [that misconduct] . . . engaged in other
severe conduct . . . a broader Order may be warranted.
Thus, repeat offenders and egregious violators of the Act
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would be subject to the traditional 'Board remedy for
conduct which requires broad injunctive relief."
Herein , the repetitious character of the Employer's
misconduct is clear . Assuming my findings of violation
are affirmed, the Employer would have exhibited a pro-
clivity to violate the Act. Its first violations occurred in
December 1979. Virtually identical violations were com-
mitteed by the Employer in June 1980. At that time, the
Employer also committed the additional violation of
having sponsored the unlawful poll. These circum-
stances, I conclude, demonstrate the Employer's proclivi-
ty to violate the Act. It warrants a broad remedial order
against `it. On the other hand, I can find no basis, under
Hickmott Foods on which to impose a broad order on
SEIU or UE. Accordingly, the Order will require only
the Employer to refrain from, in -any other manner, inter-
fering with, restraining , or coercing its employees in the
exercise of the rights guaranteed them by Section 7 of
the Act.
On these findings of fact and conclusions of law and
on the entire- record, I issue the following recommend-
ed22
ORDER
A. The Respondent, S.M.S Automotive Products, Inc.,
Philadelphia, Pennsylvania, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Unlawfully rendering assistance to SEIU, UE, or
to any other labor organization.
(b) Recognizing SEIU and UE as the exclusive repre-
sentative of its production and maintenance employees
for purposes of collective bargaining, unless and until
either or both of the labor organizations have demon-
strated its, or their, exclusive majority status pursuant to
a Board-conducted election among the production and
maintenance employees.
(c) Giving effect to its December 7, 1979 collective-
bargaining agreement with SEIU.
(d) Giving effect to any tentative agreements reached
with UE, and from continuing to bargain with UE, as the
representative of the production and maintenance em-
ployees.
(e) Conducting any employee poll in violation of the
Board's Struksnes standards and giving any effect to the
June 6, 1980 poll.
(f) Discriminating against its production and mainte-
nance employees by implementing the terms of the
union-security clause in the December 7, 1979, agreement
with SEIU.
(g) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed them -by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the ;policies of the Act.
(a) Withdraw and withhold all recognition from SEIU
and from UE as the exclusive collective-bargaining rep-
resentative, of its production and maintenance employ-
ees, -unless and until either or both the labor organiza-
tions will have demonstrated its, or their, exclusive ma-
jority status pursuant to a Board-conducted election
among the Employer's production and maintenance em-
ployees.
(b) Jointly and severally with SEIU, reimburse all pro-
duction and maintenance employees for any moneys re-
quired to be paid pursuant to the December 7, 1979 col-
lective-bargaining agreement between the Employer and
SEIU, together with interest computed as set forth in the
remedy section of this decision.
(c) Post at its Philadelphia, Pennsylvania facility copies
of the attached notice marked "Appendix."23 Copies of
the notice, on forms provided by the Regional Director
for Region 4, after being signed by the Respondent's au-
thorized representative, shall be posted by the Employer
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(d) Post at its Philadelphia, Pennsylvania facility and
under the same conditions as set forth in (c) above, as
soon as they are forwarded by the Regional Director,
copies of the attached notices marked "Appendix B" and
"Appendix C."
(e) Notify the Regional Director- in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
B. The Respondent, Service Employees International
Union Local 252, its officers, agents, and representatives,
shall
1. Cease and desist from
(a) Acting as the exclusive collective-bargaining repre-
sentative of the Employer's production and maintenance
employees, unless and until SEIU shall have demonstrat-
ed its exclusive majority status pursuant to a Board-con-
ducted election among those employees.
. (b) Giving effect to its collective-bargaining agree-
ment, dated December 7, 1979, with the Employer, or to
any extension, renewal, or modification thereof.
(c) Discriminating or causing or attempting to cause
the Employer to discriminate against employees ',in viola-
tion of Section 8(a)(3) of the Act by maintaining, or im-
plementing the terms of the union-security provision con-
tained in its December 7, 1979 collective-bargaining
agreement with the Employer.
(d) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.,
22 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings, conclusions, and recommended
Order shall, as provided in Sec . 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses. -
23 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
S.M.S. AUTOMOTIVE PRODUCTS
(a) Jointly and severally with the Employer, reimburse
the production and maintenance employees for moneys
paid for initiation fees, dues, assessments, or any other
moneys required to be paid pursuant to the December 7,
1979 collective-bargaining agreement with the Employer,
together with interest thereon computed as set forth in
the remedy section of the decision.
(b) Post at its offices and meeting places copies of the
attached notice marked "Appendix B."24 Copies of the
notice, to be furnished by the Regional Director for
Region 4, after being duly signed by an authorized SEIU
representative, shall be posted by it immediately upon re-
ceipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to its members are customarily
posted. Reasonable steps shall be taken by SEIU to
ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(c) Mail to the Regional Director for Region 4 signed
copies of "Appendix B" for posting by the Employer at
its Philadelphia, Pennsylvania facility, as provided above.
Copies of the notice to be furnished by the Regional Di-
rector, after being signed by SEIU's representative, will
be returned to the Regional Director for disposition by
him.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
C. The Respondent, United Electrical, Radio and Ma-
chine Workers of America, its officers, agents, and repre-
sentatives, shall
1. Cease and desist from
(a) Acting as the exclusive collective-bargaining repre-
sentative of the production and maintenance employees
of the Employer, unless and until UE shall have demon-
strated its exclusive majority status pursuant to a Board-
conducted election among those employees.
(b) Giving effect to all tentative agreements reached
between it and the Employer on and after June 6, 1980.
(c) Entering into a written collective-bargaining agree-
ment on behalf of the Employer's production and main-
tenance employees.
(d) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary ef-
fectuate the policies of the Act.
(a) Refrain from holding,itself out as the exclusive col-
lective-bargaining representative of the Employer's pro-
duction and maintenance employees pursuant to the June
6, 1980 poll.
(b) Post at its offices and meeting places copies of the
attached notice marked "Appendix C:"25 Copies of the
notice, on forms' provided 'by the Regional Director for
Region 4, after being signed by the Respondent's author-
ized representative of UE, shall be posted by the Re-
spondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all
places where notices to its members are customarily
24 See fn . 23 above.
25 See fn . 23 above.
49
posted. Reasonable steps shall be taken by UE to ensure
that the notices are not altered, defaced, or covered by
any other material.
(c) Mail to the Regional Director for Region 4 signed
copies of "Appendix C" for posting by the Employer at
its Philadelphia, Pennsylvania facility, as provided above.
Copies of the notice, to be furnished by said Regional
Director, after being signed by UE's representative, will
be returned to the Regional Director for disposition by
him.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARI)
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities. ,
WE WILL NOT unlawfully assist or support Service
Employees International Union, Local 252, United Elec-
trical, Radio and Machine Workers of America, or any
other labor organization, or otherwise interfere with the
representation of any of you or in your selection of a
collective-bargaining representative of your own choos-
ing.
WE WILL NOT recognize Service Employees Interna-
tional Union, Local 252; United Electrical, Radio and
Machine Workers of America, or any other labor organi-
zation, for purpose of collective bargaining for our pro-
duction and maintenance employees unless and until any
of those labor organizations shall be certified by the Na-
tional Labor Relations Board after having shown it, or
they, represent, an exclusive majority of our production
and maintenance employees through an election conduct-
ed by the National Labor Relations Board.
WE WILL NOT give effect to our December 7, 1979
collective-bargaining agreement with Service Employees,
International Union, Local 252, or enter into or enforce
any extension , renewal, modification, or supplement to it,
or any other superseding collective-bargaining agreement
with that Union; WE ARE NOT required however, to vary
those wages, hours, seniority, or other substantive terms
of employment established under the December 7, 1979
agreement . You are free to assert any rights you may
have under that agreement.
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT discriminate against you by requiring
you to join any labor organization unless you are lawful-
ly required to do so as a condition of employment as au=
thorized in Section 8(a)(3) of the National Labor Rela-
tions, Act, as amended. '
WE WILL NOT conduct any poll among you that is not
in accordance with the standards and safeguards estab-
lished by the National Labor Relations Board.
WE WILL NOT give any effect to the results of the
June 6, 1980 poll made among our production and main-
tenance employees.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce you in the free exercise of any of the
rights described at the top of this notice.
WE WILL, jointly and severally, with Service Employ-
ees International Union, Local 252, reimburse any of
you, with interest, for 'moneys you paid, if any, or had
deducted from your earnings for initiation fees, dues, as-
sessments, or other obligations of membership in that
Union under the December 7, 1979 collective-bargaining
agreement.
WE WILL give no effect to any tentative or written
collective-bargaining agreement we have made with
United Electrical, Radio and Machine Workers of Amer-
ica on behalf of our production and maintenance employ-
ees; nor will we enter inot any written collective-bar-
gaining agreement, or enter into or enforce any exten-
sion, or renewal, modification, or supplement to such an
agreement with United Electrical, Radio and Machine
Workers of America, unless and until that Union shall be
certified by the National Labor Relations Baord after
having shown it is your exclusive majority collective-
bargaining representative through an election conducted
by the National Labor Relations Board; however, WE
ARE NOT required to vary those wages, hours, seniority,
or other substantive terms of employment established
under any agreement we may have made with United
Electrical, Radio and Machine Workers of America on
and after June 6, 1980.
SMS AUTOMOTIVE PRODUCTS, INC.
APPENDIX B
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
The National Labor Relations Act gives you, as em-
ployees, certain rights, including the rights:
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT perform, enforce, or give effect to our
December 7, 1979 collective-bargaining agreement with
SMS Automotive Products, Inc., covering its production
and maintenance employees, or enter into or enforce any
extension, renewal, modification, or supplement to it, or
any superseding collective-bargaining agreement with
that employer, unless and until we shall have been certi-
fied by the National Labor Relations Board after having
shown that we represent a majority of those' employees
through an election conducted by the National Labor
Relations Board among the production and maintenance
employees of SMS Automotive Products, Inc.
WE WILL NOT act as the exclusive collective -bargain-
ing representative of the production and maintenance
employees of SMS Automotive Products, Inc. unless and
until we have been certified by the National Labor Rela-
tions Board as such representative.
WE WILL NOT cause or attempt to cause SMS Auto-
motive Products, Inc. to discriminate against any of you
by entering into, maintaining or enforcing any agreement
between us and that employer which requires you to join
our Union, unless that agreement is authorized by and
conforms with Section 8(a)(3) of the National Labor Re-
lations Act.
WE WILL NOT in any like or related manner restrain or
coerce any of you in the free exercise of any of the
rights described at the top of this notice.
WE WILL jointly and severally with SMS Automotive
Products, Inc. reimburse any of you with interest, for all
moneys, if any, you paid or were deducted from your
earnings under the terms, of our December 7, 1979 col-
lective-bargaining agreement with SMS Automotive
Products, Inc., for initiation fees, dues, assessments, or
other obligations of membership in our Union.
LOCAL 252, SERVICE EMPLOYEES INTER-
NATIONAL UNION
APPENDIX C
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
S.M.S. AUTOMOTIVE PRODUCTS
WE WILL NOT act as the exclusive collective -bargain-
ing representative of the production and maintenance
employees of SMS Automotive Products , Inc. unless and
until our Union has been certified as such by the Nation-
al Labor Relations Board.
WE WILL NOT declare we are, or hold ourselves out to
be, the exclusive collective-bargaining representative of
the production and maintenance employees of SMS
Automotive Products, Inc. as a result of the June 6, 1980
poll held among you.
WE WILL NOT perform , enforce, or give effect to any
tentative agreements we made with SMS Automotive
51
Products , Inc., on and after June 6 , 1980, on behalf of
that employer 's production and maintenance employees;
nor will we enter into any such written agreement unless
and until we have been certified as your exclusive collec-
tive-bargaining representative by the National Labor Re-
lations Board.
WE WILL NOT in any like or related manner restrain or
coerce any of you in the free exercise of any of the
rights described at the top of this notice.
UNITED ELECTRICAL , RADIO AND MA-
CHINE WORKERS OF AMERICA