Dickey v. National Labor Relations Board Brief for the National Labor Relations Board

    No. 12,236

J . W .  D ic k e y  a n d  R . L .  R o v n i ), f o r m e r l y  d o in g  b l s I- 
n e s s  a s  O h io  H o ist  a n d  M a n  he  a c t  r  hi no C o m p a n y ,  a  

PARTNERSHIP, AND OHIO H qIST &  M f G. C o .. IN C ., A

CORPORATION, PETITIONERS
' / r ■

/ ; ... ' . V. \ :

N a t io n a l  L ab o r  R e l a t io n s  B o ar d , r e s p o n d e n t

ON PETITION FOR R EVIE W  AND ON REQUEST FOR ENFORCE­
MENT OF AN ORDER OF THE NATIONAL LABOR RELATIONS 
BOARD

BRIEF FOR TH E NATION AL LABOR RELATIONS BOARD

G E O R G E  J. B O T T .
General Counsel, 

D A V I D  P. KINDLING,
Associate General Counsel,

A. N OR M A N  SOMERS,
Assistant General Coimsel, i

SA M U E L  M. SINGER,
N A N C Y  M. SH ERM AN .

Attorneys,
National Labor Relations Board.



C O U N T E R S T A T E M E N T  OF  Q U E S T IO N S  IN V O L V E D

I. Whether substantial evidence on the record con­
sidered as a whole supports the Board’s finding that 
the partnership, and later the corporation, failed to 
bargain in good faith with the Union, in violation of 
Section 8 (a) (5) and (1) of the Act. The Board con­
tends that this question should be answered “ yes.”

II. Whether substantial evidence on the record con­
sidered as a whole supports the Board’s finding that 
the partnership laid off its employees in order to dis­
courage their union adherence and to avoid bargaining, 
in violation of Section 8 (a) (3) and (1) of the Act. The 
Board contends that this question should be answered 
“ yes.”

III . Whether the Board properly found that after 
the Blacksmiths’ Union merged with another union to 
form the Boilermakers’ Union, the corporation’s duty 
to bargain with the Boilermakers’ Union was the same 
as its duty to bargain wdth the Blacksmiths’ Union 
would have been absent the merger. The Board con­
tends that this question should be answered “ yes.”

( i )



I N D E X
Page

Counterstatement of questions involved ............................................... i
Counterstatement of facts .......................................................................  1

I. The Board’s findings of fact and conclusions of law..........  2
A. Following its certification by the Board, the Black­

smiths’ Union seeks to negotiate a contract with 
the partnership ....................................................... 3

B. In the midst o f the bargaining negotiations, the
partnership shuts down the plant and transfers 
the business to the newly formed corporation. . .  4

C. The corporation reopens the plant a few days later
and grants wage increases without consultation 
with the Union ......................................................... 5

D. The Blacksmiths’ Union, commencing on May 18,
seeks to resume bargaining negotiations with the 
corporation ............................................................... 5

E. The corporation finally meets with the tinion on
July 25; the corporation seeks additional time 
to consult “management”  concerning the Union’s 
proposals ...................................................................  ~

F. Although promising to submit the Union’s propo­
sals to management and to give the Union its 
answer, the corporation failed to do so; instead 
it dismissed counsel conducting the negotiations 
and did not thereafter communicate with the 

Union ...........................................................................  8
G. The corporation continues to grant increases to

employees without consulting the Union..............  9
H. The amendment to the certification..........................  10

II. The Board’s conclusions of law.......................................... 11
III. The Board’s o rd e r ..................................................... 12

Argument ...................................................................................................  I:!
I. Whether substantial evidence on the record considered as 

a whole supports the Board’s finding that the partner­
ship, and later the Corporation, failed to bargain in good 
faith with the Union, in violation of Section 8 (a) (5) 
and (1) of the Act. The Board contends that this 
question should be answered “ Yes” . ....................................  13

A. Petitioners negotiated without any real purpose to
reach an agreement ................................................. 13

B. Petitioners’ defenses to their unilateral wage in­
creases are without merit......................................  16

C. The Union’s alleged loss of majority did not relieve
petitioners’ of their duty to bargain......................  17

( m )



IV
Argument— Continued „

Page
II. Whether substantial evidence on the record considered as 

a whole supports the Board’s finding that the partner­
ship laid off its employees in order to discourage their 
Union adherence and to avoid bargaining, in violation 
of Section 8 (a) (3) and (1) of the Act. The Board 
contends that this question should be answered “ Yes” . . . 19

III. Whether the Board properly found that after the Black­
smiths’ Union merged with another union to form the 
Boilermakers’ Union, the corporation’s duty to bargain 
with the Boilermakers’ Union was the same as its duty 
to bargain with the Blacksmiths’ Union absent the mer­
ger. The Board contends that this question should be 
answered “ Yes”  .....................................................................  23

R e lie f............................................................................................................  27
A ppendix ...................................................................................................... 28

AUTHORITIES CITED
Cases:

Armstrong Cork Co. v. N.L.R.B., 211 P. 2d 843 (C.A. 5) . . . .  14,15,17
Bushnell Steel Co., 98 NLRB 218................................................... 26
Cadillac Automobile Co. of Boston, 90 NLRB 460 n. 3 ..............  23, 25
Continental Oil Co. v. N.L.B.B., 113 P. 2d 473 (C.A. 10), certi­

orari denied, 311 U.S. 637.............................................................  25
Crawford v. Athletic Ass’n of University o f Nebraska, 82 N.W.

944, 111 la. 736 .................................. ' .........................................  24,26
Davis Furniture Co. v. N.L.R. B., 197 P. 2d 435 (C.A. 9 ) ..........  22
Fay v. Douds, 172 P. 2d 720 (C.A. 5 ) ..........................................  27
Franks Bros. Co. v. N.L.R.B., 321 U.S. 702..................................  19, 25
Joy Silk Mills v. N.L.R.B., 185 P. 2d 732 (C.A.D.C.), certiorari

denied, 341 U.S. 914 .....................................................................  20
Majure v. N.L.B.B., 198 P. 2d 735 (C.A. 5 ) ..............................  17
Mid-Continent Petroleum. Cory. v. N.L.B.B., 204 F. 2d 613

(C.A. 6), eertiorari denied, 346 U.S. 856..................................  18
Midland Rubber Corp., 108 NLRB No. 128..................................  26
Missouri Service Co., 87 NLRB 1142............................................... 25
Monroe County Alliance v. Owens, 25 So. 876 (S. Ct. Miss.) . . . .  25
Morand Bros. Beverage Co. v. N.L.R.B., 190 P. 2d 576 (C.A. 7) . 22
Mount Hope Finishing Co. v. N.L.R.B., 211 P. 2d 365 (C.A. 4) . 20, 22 
N.L.R.B. v. J. H. Allison & Co., 165 F. 2d 766 (C.A. 6),

certiorari denied, 335 U.S. 814 ................................................... 14 15
N.L.R.B. v. Bradley Washfountain Co., 192 P. 2d 144 (C.A. 7) . 17
N.L.R.B. v. Fay Beooks, 204 P. 2d 899 (C.A,. 9), certiorari

granted, 347 U.S. 9 1 6 ................................................................... 18
N.L.R.B. v. Cape County Milling Co., 140 F. 2d 543 (C.A. 8) . . 20
N.L.R.B. v. Century Cement Mfg. Co., Inc., 208 P 2d 84

(C-A. 2)     15
N.L.R.B. v. Colten, 105 F. 2d 179 (C.A. 6 ) ..................................  19
N.L.R.B. v. Crompton-Highland Mills, Inc., 337 U.S. 217 14 16
N.L.B.B. v. Dant, 344 U.S. 375........ .’ .................................... , . . , ’ 21



V

Cases—Continued Pa°'e
N.L.R.B. v. E. A. Laboratories, Inc., 188 F. 2d 885 (C.A. 2),

certiorari denied, 342 U.S. 871................................................... 25
N.L.R.B. v. Elyria Telephone Co., 158 F. 2d 868 (C.A. 6) . . . . 14
N.L.R.B. v. Hoppes Mfg. Co., 170 F. 2d 962 (C.A. 6 ) .....14,15,16
N.L.R.B. v. Jergens Co., 175 F. 2d 130 (C.A. 9), certiorari

denied, 338 U.S. 827 .....................................................................  17
N.L.R.B. v. S. H. Kress & Co., 194 F. 2d 444 (C.A. 6 ) .......  19
N.L.R.B. v. Lunder Shoe Corp., 211 F. 2d 284 (C.A. 1 ) .......  14
N.L.R.B. v. May Department Stores Co., 154 F. 2d 533 (C.A.

8), certiorari denied, 329 U.S. 725.............................................  14
N.L.R.B. v. Mexiz Textile Mills, 339 U.S. 563..............................  15
N.L.R.B. v. National Shoes, Inc., et a l, 208 F. 2d 688

(C.A. 2) .........................................................................................  15,20
N.L.R.B. v. Ohio Calcium Co., 133 F. 2d 721 (C.A. 6 ) ..............  21
N.L.R.B. v. Porcelain Steel, Inc., 138 F. 2d 840 (C.A. 6 ) ..........  19
N.L.R.B. v. Reed & Prince Mfg. Co., 205 F. 2d 131 (C.A. 1),

certiorari denied, 346 U.S. 887 ................................................... 17
N.L.R.B. v. Robbins Tire & Rubber Co., 161 F. 2d 798 (C.A. 5) 21
N.L.R.B. v. Weissman Co., 170 F. 2d 952 (C.A. 6), eerti-

orari denied, 336 U.S. 972........................................................... 20
N.L.R.B. v. Whittenberg Construction Go., 200 F. 2d 127

(C.A. 6 ) ...........................................................................................  17
United States Plywood Corp., 98 NLRB 1330, n. 2 ....................  23

Miscellaneous:
65 Boilermakers’-Blaeksmiths’ Journal 193-194............................. 24,26
65 Boilermakers’ Journal and the Anvil Chorus, 174, 185

(August 1953) ...............................................................................  24



In the United States Court of Appeals 
for the Sixth Circuit

No. 12,236

J. W. D i c k e y  a n d  R. L. R o u n d , f o r m e r l y  d o in g  b u s i ­

n e s s  a s  O h io  H o ist  a n d  M a n u f a c t u r in g  C o m p a n y , a  

p a r t n e r s h ip , a n d  O h io  H o ist  & M f g . C o ., I n c ., a

CORPORATION, PETITIONERS

V.

N a t io n a l  L ab o r  R e l a t io n s  B o ar d , r e s p o n d e n t

ON PETITION FOB R EV IE W  AND ON BEQUEST FOB ENFORCE­
MENT OF AN ORDER OF THE NATIONAL LABOR RELATIONS  
BOARD

BRIEF FOR TH E N ATION AL LABOR RELATIONS BOARD

C O U N T E R S T A T E M E N T  OF  FACTS

This case is before the Court upon petition of J. W. 
Dickey and R. L. Round, formerly doing business as 
Ohio Hoist and Manufacturing Company, a partner­
ship, and of Ohio Hoist & Mfg. Co., Inc., a corporation, 
to review an order (P.A. SSa-BTa)1 of the National

1 References to the appendix to petitioners’ brief will be desig­
nated “P.A.” ; those to the appendix to the Board’s brief will be 
designated “B .A .” References preceding a semicolon are to the 
Board’s findings; succeeding references are to the supporting evi­
dence.

( 1)



2

Labor Relations Board issued against petitioners on 
April 28, 1954, following the usual proceedings under 
Sections 9 and 10 of the National Labor Relations Act, 
as amended (61 Stat. 136, 29 U.S.C., Supp. Y, Secs. 
151, et seq.). In its answer, the Board has requested 
enforcement of its order. The jurisdiction of this Court 
is based on Section 10 (e) and ( f ) of the Act, the unfair 
labor practices having been committed in Lisbon, Ohio, 
within this judicial circuit.2 The Board’s Decision and 
Order are reported in 108 NLRB No. 89.

I. The Board’s Findings of Fact and Conclusions of Law

Briefly, the Board found, in agreement with the Trial 
Examiner, that the partnership laid off its employees 
in order to discourage their membership in, and activi­
ties on behalf of, the Blacksmiths’ Union,3 in violation 
of Section 8 (a) (3) and (1) of the Act; that the part­
nership failed to bargain in good faith with the Black­
smiths’ Union after the Board had certified it as the 
collective bargaining representative of the partner­
ship’s employees, in violation of Section 8 (a) (5) and 
(1) ; and that the corporation, an alter ego of the part­
nership, refused to bargain with the Blacksmiths’ 
Union and its successor, the Boilermakers’ Union,4 in

2 Until its dissolution about M ay 7, 1953, the partnership was 
engaged in the manufacture of hoists and other commodities; the 
corporation continued to manufacture similar items after that date. 
(P.A. 89a; Complaint and Answer). No jurisdictional issue is 
presented.

3 International Brotherhood of Blacksmiths, Drop Forgers and 
Helpers, AFL.

4 International Brotherhood of Boilermakers, Iron Ship Builders, 
Blacksmiths, Forgers and Helpers, AFL. The successorship relation 
between the Blacksmiths’ Union and the Boilermakers’ Union is 
described on pp. 10, 24-25, infra.



3

violation of Section 8 (a) (5) and (1). Where the 
testimony was in conflict, the Board adopted the credi­
bility determinations of the Trial Examiner. The evi­
dence upon which the Board based its findings is sum­
marized below.

A. Following its certification by the Board, the Black­
smiths’ Union seeks to negotiate a contract with the 
partnership

On February 2, 1953, following a Board-conducted 
election, the Blacksmiths’ Union was certified as the 
collective bargaining representative of the partner­
ship’s production and maintenance employees (P.A. 
89a; 72a). The first meeting between the parties was 
held on April 18 (P.A. 89a; B.A. 48b) .5 Business Agent 
Zalac, who represented the Blacksmiths’ Union, pre­
sented a proposed agreement providing for a wage in­
crease of 15 cents an hour, a 10 or 15 cent shift premium, 
paid vacations, and hospitalization and surgical insur­
ance to be paid for by the partnership (P.A. 90a; 33a- 
42a, 53a, 58a, B.A. 49b-50b). After a general discus­
sion, and apparent agreement on minor clauses,6 Joseph 
A. Piccoli, who was in charge of negotiations on behalf 
of the partnership, promised to consider the proposed 
agreement and to take it back to management for re­
view, but expressed doubt that any wage increase could 
be granted (P.A. 90a; P.A. 33a-42a, 53a-55a, B.A. 50b).

5 During the interval between the certification and the first bar­
gaining meeting, the Blacksmiths’ Union conferred with the em­
ployees, who had not previously been represented by a union, to 
draft a satisfactory proposed contract (B.A. 50b-51b).

6 I e. general purpose of agreement, recognition clause, hours and 
days of the week to be worked under ordinary circumstances, paid 
holidays, and leaves of absence,



4

The second and last meeting between Zalac and Pic- 
coli was held on Saturday, April 25 (P.A. 90a; B.A. 
51b). The parties reviewed the agreement proposed by 
the Blacksmiths and the partnership’s counterpro­
posals, tentatively agreeing to some and disagreeing 
as to others (P.A. 90a; B.A. 51b-52b, 42a-50a, 55a-58a).7 
However, Piccoli stated that the partnership could 
grant no wage increases at that time, and would prob­
ably be unable to grant any for at least a year, because 
it was losing money (P.A. 90a; B.A. 52b-53b). The 
Blacksmiths’ Union then suggested a 30-day wage re­
opening clause to be effective “ when the company is 
making money”  (P.A. 90a; B.A. 52b). The parties 
agreed to meet again on May 2 (P.A. 90a; B.A. 53b). 
For reasons which will subsequently appear, this meet­
ing never took place (P.A. 90a; B.A. 53b).

B. In the midst of the bargaining negotiations, the 
partnership shuts down the plant and transfers the 
business to the newly formed corporation

On Sunday, April 26, the day after the second bar­
gaining conference, Plant Manager Lewis, with the as­
sistance of a foreman, notified all the employees by 
telephone that the plant was discontinuing operations 
until further notice (P.A. 90a; B.A. 16b-17b). In 
response to questions from employees, he stated that 
he did not know why the plant was being shut down 
and that he would let them know when it reopened (P.A. 
90a; B.A. 17b, 18b). The Blacksmiths’ Union received 
no notice of the shutdown (P.A. 91a; B.A. 53b).

On April 30, articles of incorporation wTere signed for

7 In addition to the items agreed on at the April 18 conference the 
parties agreed on seniority, grievance procedure, no-strike and no- 
lockout clause, call-in pay, and work assignment matters,



5

the petitioning corporation (P.A. 90a; B.A. 37b, 83b- 
87b). Petitioner J. W. Dickey, the active partner in 
the dissolved partnership, became the sole stockholder 
in the corporation and assumed all of its offices except 
that of president (P.A. 83a, n. 1, 91a, n. 10; 63a-64a, 
67a); Plant Manager Lewis became the president (P.A. 
83a, n. 1; B.A. 7b).

C. The corporation reopens the plant a few days later 
and grants wage increases without consultation with 
the Union

On May 4, three days before the articles of incorpora­
tion wefe filed, Lewis told all of the 15 employees on 
the partnership payroll to return to work on the fol­
lowing day; all but one returned (P.A. 90a; B.A. 23b). 
The corporation continued to work on a contract nego­
tiated by Dickey on behalf of the partnership (P.A. 
83a, 102a, n. 1; 67a (see n. 12, p. 12, in fra)). At the 
end of the week, 9 of the 14 employees who returned to 
work found that they had received increases of five 
or ten cents an hour; these increases averaged five cents 
for each member of the bargaining unit (P.A. 91a; B.A. 
15b-16b, 24b, 63b-64b). Neither the partnership nor 
the corporation ever notified the LTnion that the plant 
was reopening or that most of the employees had re­
ceived wage increases (P.A. 91a, 95a-96a; B.A. 53b).

D. The Blacksmiths’ Union, commencing on May 18,
seeks to resume bargaining negotiations with the 
corporation

By letter dated May 18, Business Agent Zalac re­
quested petitioner J. W. Dickey for another bargaining 
ponference • the letter was sent to Dickey at the address



6

of the Cleveland Chain and Manufacturing Company, 
of which Dickey was vice president, treasurer, and gen­
eral manager (P.A. 91a; 19a-20a, B.A. 39b) .8 9 Although 
Dickey received the letter, he did not reply to it (B.A. 
39b). On May 26, Zalac sent a telegram to Dickey, 
again at his Cleveland Chain address, requesting a 
meeting on the following day (P.A. 91a; B.A. 40b, 88b). 
By letter dated May 27, Richard H. Gfillis, a personnel 
officer of Cleveland Chain with whom Dickey was per­
sonally acquainted, stated that Dickey was no longer an 
officer of the petitioning corporation, and suggested that 
Zalac direct his correspondence “ to an officer of the 
company, which is located in Lisbon” , Ohio (P.A. 91a; 
B.A. 35b-36b, 41b, 88b).6 In response to a telegram 
directed to the corporation, Zalac was advised to com­
municate with a Youngstown, Ohio, firm (P.A. 91a; 20a, 
21a-22a, B.A. 41a, 42b, 43b, 89b). By letter dated 
June 5, the Blacksmiths requested a conference with 
that firm (P.A. 91a; 21a, B.A. 43b). By letter dated 
June 8, Attorney Huxley, a member of the firm, sug­
gested that the Blacksmiths’ representative call his 
office for a conference (P.A. 91a; 21a-22a, B.A. 43b).

8 The letter was sent to Dickey’s Cleveland Chain office, because 
he spent very little time at the Company’s plant in Lisbon (B.A. 
32b). Both the partnership and the corporation used the facilities 
of Cleveland Chain’s office and personnel (P.A. 92a, n. 11; 69a, 
B.A. 9b-10b). Pay checks were sometimes drawn on Cleveland 
Chain and persons connected with it sometimes issued instructions 
to Plant Manager Lewis (P.A. 92a, n. 11; B.A. 8b-10b, 12b, 20b- 
21b). The letterhead of General Counsel’s Exhibit 6 (B.A. 88b), 
inadvertently omitted from the printed appendix, discloses that peti­
tioner R. L. Round, the inactive partner, was the president and chair­
man of the board of Cleveland Chain, and petitioner Dickey was its 
vice president, treasurer, and general manager.

9 Actually, Dickey held all of the offices of the corporation except 
one, and was its sole stockholder (P,A. 91a, n. 10; 67a, B.A, 32b),



7

A meeting was arranged for June 12, but because of a 
misunderstanding regarding the place of meeting it was 
not held (P.A. 91a; 23a, B.A. 44b, 54b). By letter 
dated June 18, the Blacksmiths requested Huxley to fix 
a new date for a meeting (P.A. 91a; 24a, B.A. 44b). 
Hot having heard from Huxley, by letter dated July 
13, Zalac again requested a conference (P.A. 24a-25a, 
B.A. 44b). By letter dated July 16, Attorney Jackson, 
another member of Huxley’s firm, notified Zalac that 
because of other commitments Huxley was unable to 
conduct negotiations; that he, Jackson, would take the 
matter over; and that as soon as he had familiarized 
himself with the matter he would telephone Zalac for 
an appointment (P.A. 91a; 25a-26a, B.A. 44b).

E. The corporation finally meets with the Union on 
July 25; the corporation seeks additional time to 
consult “ management”  concerning the Union’s 
proposals

The parties finally met on July 25, three months after
the previous conference (P.A. 91a; B.A. 54b, 65b).10 
Zalac renewed the economic demands which the part­
nership had rejected (see p. 3 supra), but asked for 
a 20-cent hourly increase retroactive to the date of cer­
tification rather than a 15-cent increase effective as of 
the date of the contract, requested a more liberal vaca­
tion policy than he had first sought, and added demands 
for employee life insurance and a sick and welfare pro­

10 By this time the Blacksmiths’ Union had merged with the In­
ternational Brotherhood of Boilermakers, Iron Shipbuilders and 
Helpers of America to form the International Brotherhood of Boiler­
makers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL  
(herein called the Boilermakers’ Union). See pp. 10, 24-25, infra.



8

gram (P.A. 91a; 61a ).11 Jackson made no counterpro­
posals, but asked for time to review these proposals and 
to consult with “ the management”  (P.A. 91a; B.A. 
55b).

P. Although promising to submit the Union ’s proposals 
to management and to give the Union its answer, 
the corporation fails to do so ; instead it dismisses 
counsel conducting the negotiations and does not 
thereafter communicate with the Union

The final meeting between the parties was held on 
August 10 (P.A. 92a; B.A. 55b-56b). After discussion 
of the contract with Jackson failed to produce any re­
sults, Zalac inquired “ who had the authority to sit down 
and bargain”  (id.) Lewis, president of the corpora­
tion, who was present, denied having any, and the 
corporation’s other representative at the conference, 
one McClay, denied having any (id.) Zalac then pro­
posed, ‘ ‘ are you willing to show us your financial stand­
ings, and if the corporation is losing the amount of 
money that you claim, maybe we can draft up a contract 
that will be workable for our membership and also for 
the company, with a wage proviso, and again, when the

11 The Company stresses the fact that at this meeting Zalac with­
drew “all commitments which the union and the company had pre­
viously entered into.” (P.A. 61a) (Pet. Br. pp. 10-11). The record 
shows, however, that virtually all of these “ commitments” related to 
minor matters and were non-economic in character (see n. 6 and 7, 
pp. 3-4, supra). Moreover, as stated below, the Union’s representa­
tive later offered to withdraw the Union’s demands for a current 
wage increase if the Company demonstrated its inability to grant 
one. Finally, there is no evidence that the withdrawal of the earlier 
“ commitments” affected the collapse of the negotiations. The testi­
mony of Attorney Jackson, called as a witness by petitioners, estab­
lishes that he had no objection to Zalac’s conduct of the negotiations 
(B.A. 76b; see also p. 9, infra).



9

company is in a position to grant an increase, we can 
reopen this contract on a thirty-day proviso”  (P.A. 
92a; B.A. 55b-56b, 65b-66b). The corporation’s repre­
sentatives then told Zalac that ‘ ‘ they would take it back 
to Mr. Dickey and let [the Union] know”  (P.A. 92a; 
B.A. 56b, 65b, 66b).

Jackson admittedly never consulted with Dickey 
(P.A. 71a, 74a). The last communication which Zalac 
received from the corporation in connection with the 
negotiations was a letter from Jackson, dated August 
13 (P.A. 92a; B.A. 56b). Although Jackson may have 
thought, and did testify at the hearing, that he had 
authority to negotiate a contract subject to the final 
approval of Lewis or Dickey (P.A. 92a, 96a; 74a-75a), 
he stated in the letter, “ After the conference held in 
our office [on August 10], we advised Mr. McClay of 
certain matters that must be clarified. The net result 
of that request apparently was our dismissal”  (P.A. 
92a; B.A. 44b, 90b). The Boilermakers’ Union made 
no further attempts to get in touch with representatives 
of the corporation, since it did not know who such repre­
sentatives were (B.A. 56b-57b).

G. The corporation continues to grant increases to 
employees without consulting the Union

As already indicated (supra, p. 4, B.A. 66b), dur­
ing the negotiations with the Union, the corporation as­
serted that it was not in a financial position to grant any 
wage increases. Nevertheless, during the period of the 
negotiations, the corporation repeatedly granted unilat­
eral merit increases to its employees without consulting, 
or even notifying, the Boilermakers’ Union (P. A. 96a; 
B. A.69b, 70b, 71b).



10

H. The amendment to the certification

On August 31, 1953, the Blacksmiths’ Union filed 
with the Board a motion to amend its certification. The 
motion showed on its face that at a convention held 
June 29 to July 7, 1953, subsequent to the certification 
of the Blacksmiths’ Union, that organization formally 
merged with the International Brotherhood of Boiler­
makers, Iron Ship Builders and Helpers, AFL, to form 
the International Brotherhood of Boilermakers, Iron 
Ship Builders, Blacksmiths, Forgers and Helpers, APL, 
which name the Blacksmiths’ Union requested the 
Board to substitute for its own on the certification 
(P.A. 101a; 8a-10a, B.A. 6b). The motion further stated 
that on July 17, 1953, the Boilermakers’ Union had 
filed the non-Communist affidavits and financial reports 
required in Section 9( f ) ,  (g), and (h) of the Act (P.A. 
101a; 9a, B. A. 6b). The day that the motion was filed, 
the Regional Director issued an order to show cause 
why it should not be granted, which order was served 
on the partnership on September 2, 1953 (P . A. 101a; 
B. A. 6b, 82b). On September 11, the partnership filed 
an opposition to this motion, contending that the Board 
had no power to grant the motion, that the motion could 
not be granted without a majority vote of the employees, 
and that the granting of the motion was barred by a 
written revocation of the Blacksmiths’ bargaining au­
thority, dated June 3, 1953, and signed by 11 of the 13 
employees then in the bargaining unit. Seven of these 
employees had received the unilateral wage increases 
given a month earlier (P. A. 91a, 93a, 101a; lla-12a, 50a- 
51a, 78a, B. A. 6b, 15b-16b, 24b). The Regional Di­
rector found the partnership’s contentions to be without 
merit and granted the motion to amend the certifica­



11

tion (P. A. 101a; 13a-14a, B. A. 6b).lla Thereafter the 
partnership filed an appeal from this decision, assert­
ing that the Regional Director was without authority 
to grant the motion (P. A. 101a; 15a-18a, B. A. 6b). 
On October 2,1953, the Board denied the appeal as lack­
ing in merit (P . A. 101a; 18a-19a, B. A. 6b).

II. The Board’s Conclusions of Law

The Board found, in agreement with the Trial Exam­
iner, that the petitioners negotiated with the Black­
smiths’ Union and with its successor, the Boilermak­
ers’ Union, without any sincere purpose to reach an 
agreement, in violation of Section 8 (a) (5) and (1) of 
the Act (P. A. 104a). The Board held that the Black­
smiths’ alleged loss of majority did not relieve the corpo­
ration from its duty to bargain, since the loss was at­
tributable to the partnership’s and the corporation’s 
prior unfair labor practices (P. A. 98a). The Board 
found that the corporation committed a further, inde­
pendent, violation of Section 8 (a) (5) and (1) by 
granting unilateral wage increases to its employees 
(P. A. 97a).

The Board further found, in agreement with the Trial 
Examiner, that the partnership shut down the plant in 
order to discourage its employees’ union adherence. 
The Board rejected petitioners’ contention that the 
partnership closed the plant because it was losing 
money and thus desired to go out of business. The 
Board pointed out that petitioners submitted no evi- * 7

lla The consent election agreement provides that “rulings or deter­
minations by the Regional Director in respect of any amendment 
of any certification resulting therefrom shall also be final,” (P. A,
7 a),



12

dence to support Dickey’s uncorroborated testimony 
(P. A. 66a) that the partnership was losing money; 
that less than three weeks before the shutdown the part­
nership had signed a $700,000 contract with the Air 
Force, part of which was to be performed at the Lisbon 
plant, calling for 1000 units of cargo tiedown assem­
blies to be delivered during June (P. A. 94a-95a; 69a) ;12 
that prior to the plant shutdown, work was in progress 
to provide facilities for women employees, although no 
women were employed, and women were being inter­
viewed for employment (P. A. 94a; B. A. 63b, 67b) ; and 
that after the plant reopened women were employed 
(P. A. 94a ; B. A. 63b, 75b).

III. The Board’s Order

The Board’s order (P. A. 83a-87a) requires the corpo­
ration to cease and desist from the unfair labor prac­

12 Our appendix inadvertently omits the following stipulation 
entered into between the General Counsel and petitioners on pages 
251-252 of the transcript:

Ohio Hoist and Manufacturing Company entered into a con­
tract on April 5, 1953, with the Airforce, said contract being 
No. AF 33 (600) 24156 for production of cargo tie-down assem­
blies, type C -2 ; the value of the contract was approximately 
seven hundred thousand dollars. The contract was signed by 
the Airforce on April 6th, and receipt of the signed contract was 
acknowledged by J. W . Dickey on April 10, 1953; that one 
thousand units of the cargo tie-down assemblies, type C-2, 
were to be delivered during the month of June, 1953. * * * 
That a conversation was held relative to the aforementioned 
contract at Cleveland, Ohio, on April 29, 1953, among J. W . 
Dickey, two other representatives of Ohio Hoist and Manu­
facturing Company, Mr. Murphy and Mr. Schwartz, and also 
two representatives of the Central Air Procurement District 
Cleveland Air Regional office; that during the conversation 
company representatives stated to the Airforce representatives 
that a part of the work to be performed under the contract, was 
to be performed at the company’s Lisbon plant.



13

tices found, or from in any manner interfering with, 
restraining, or coercing its employees in the exercise of 
their rights under the Act. Affirmatively, the corpora­
tion is required to bargain collectively with the Boiler­
makers ’ Union, on request; to make the unlawfully laid- 
off employees whole for any loss of pay they may have 
suffered by reason of the discriminatory lockout from 
April 27 to May 5,1953; and to post appropriate notices. 
The partnership is required to make such employees 
whole, or in the alternative to furnish written proof to 
the Regional Director for the Eighth Region within ten 
days that the corporation has done so.

A R G U M E N T

I. Whether Substantial Evidence on the Record Considered as 
a W hole Supports the Board’s Finding That the Partnership, 
and Later the Corporation, Failed to Bargain in Good Faith 
With the Union, in Violation of Section 8  (a ) (u ) and (1 )  
of the Act. The Board Contends That This Question Should 
Be Answered “ Yes”

A. Petitioners negotiated without any real purpose to 
reach an agreement

The undisputed facts summarized on pp. 3-5, supra, 
establish that by the end of the second bargaining con­
ference, the Union’s wage demands were the principal 
question before the parties. The Union sought a gen­
eral wage increase; the partnership refused to give one 
on the stated ground that it was losing money. The 
Union then proposed a clause providing for a reopen­
ing with respect to wages when the partnership was 
making money—a proposal which would certainly have 
been acceptable if the company’s real reason for re­
fusing a wage increase had been the one which it ten­
dered. However, the partnership, and later the corpo­



14

ration, failed to reply to the Union’s proposal. Instead,
the partnership first attempted to discourage the em­
ployees’ desire for representation by the Union by clos­
ing down the plant without notifying the Union. There­
after, the corporation reopened the plant and granted 
unilateral wage increases to most of the employees in 
the unit without notifying the Union, notwithstanding 
its representations to the Union that it could not offer 
any increases because it was allegedly losing money. 
Such conduct was plainly calculated to discredit the 
Union in the eyes of the employees, in violation of Sec­
tion 8 (a) (5) and (1) of the Act. N. L. R. B. v. Cromp­
ton-Highland Mills, 337 U. S. 217; May Department 
Stores Co. v. N. L. R. B., 326 U. S. 376, 383-384, and 
cases cited therein; N. L. R. B. v. Hoppes Manufactur­
ing Company, 170 U  2d 962, 964 (0 . A. 6) ; N. L. R. B. v. 
J. II . Allison (& Co., 165 F. 2d 766, 769-771 (C. A. 6), 
certiorari denied, 335 U. S. 814, 905; 'N. L. R. B. v. Elyria 
Telephone Co., 158 F. 2d 868, 870 (C. A. 6) ; Armstrong 
Cork Co. v. N. L. R. B., 211 F. 2d 843, 847 (C. A. 5).

Thereafter, notwithstanding the fact that the shut­
ting down of the plant had precluded the holding of the 
next scheduled conference between the Union and Pic- 
coli (supra, pp. 4-5), and notwithstanding the fact that 
the corporation had apparently severed its relationship 
with Piceoli, petitioners never got in touch with the 
Union to arrange for another bargaining conference. 
Cf. N. L. R. B. v. Lunder Shoe Gorp., 211 F. 2d 284, 289 
(C. A. 1). When the Union, after learning from out­
side sources that the plant had reopened, wrote Dickey 
at the address of a corporation with which he was closely 
associated (supra, pp. 5-6), the Union was advised that 
Dickey was no longer an officer of the corporation, al­



15

though Dickey did in fact hold all the offices therein 
except that of president and was also the sole stock­
holder. After the Union finally learned the identity of 
the individual designated to deal with it, responsibility 
for the negotiations was transferred to another corpora­
tion representative who knew nothing of the previous 
negotiations, had no authority to bargain regarding 
the Union’s still outstanding wage reopening proposal, 
and never had any contact with Dickey, who alone had 
the authority to pass on wage matters.

We submit that petitioners’ granting of unilateral 
wage increases at the very time they were advising the 
Union that they could not accede to any wage demands 
because the business was losing money, the shutdown 
of the plant to discourage the employees’ interest in the 
Union (see pp. 19-23, infra), the dilatory tactics em­
ployed by petitioners regarding the scheduling of bar­
gaining conferences, their failure to appoint a bargain­
ing representative with authority to resolve the princi­
pal matters in dispute, and their failure to support their 
repeated insistence—belied by their regular granting of 
wages increases which bypassed the Union—that they 
were losing money, amply support the Board’s finding 
that petitioners had no real purpose to reach an agree­
ment with the Union. Compare N. L. E. B. v. Mexia 
Textile Mills, 339 U. S. 563; N. L. E. B. v. Hoppes Manu­
facturing Go., 170 F. 2d 962, 964 (C. A. 6 ); N. L. E. B. 
v. Allison A Go., 165 F. 2d 766, 770 (C. A. 6), certiorari 
denied, 335 U. S. 814, 905; N. L. E. B. v. National Shoes, 
Inc., 208 F. 2d 688, 692 (C. A. 2 ); N. L. E. B. v. Century 
Cement, 208 F. 2d 84, 85-86 (C. A. 2 ) ; Armstrong Cork 
Co. v. N. L. E. B., 211 F. 2d 843, 847-848 (C. A. 5).



16

B. Petitioners’ defenses to their unilateral wage in­
creases are without merit

Petitioners contend that they did not violate the Act 
by granting unilateral wage increases to their employ­
ees, on the ground that, contrary to the Board’s find­
ings (P . A. 96a-97a), the bargaining negotiations with 
the Union had reached an impasse. This contention, 
we submit, is wholly without merit.

The record fully supports the Board’s finding that 
the parties had not bargained to an impasse prior to 
the first unilateral wage increases. At the time that 
these increases were granted, the principal bargaining 
issue was the Union’s request for a general wage in­
crease. As we have already shown, when petitioners 
disclaimed financial ability to grant any wage increase, 
the Union suggested that petitioners agree to a wage 
reopening clause to be effective when the business was 
making money. Petitioners never replied to this pro­
posal. Instead, they repeatedly granted individual 
wage increases without consulting with the Union. Had 
petitioners informed the Union of their willingness to 
retreat from their earlier position that they could not 
afford wage increases, the parties might well have suc­
ceeded in composing their differences. Their unilateral 
action without making any counteroffer “ cut o ff”  the 
“ infinite opportunities for bargaining that are inherent 
in an announced readiness of an employer to increase 
generally the pay of its employees.”  N.L.R.B. v. 
Crompton-Highland Mills, Inc., 337 U.S. 217, 234. “ Un­
der this circumstance the unilateral wage raise may 
be said to have been in furtherance of that refusal [to 
bargain] and * * * furnishes additional evidence of its 
bad faith toward its bargaining representatives.”  An­



17

drew Jergens Go. v. N.L.R.B., 175 F. 2d 130, 136 (C.A.
9), certiorari denied, 338 U.S. 827, 882; N.L.R.B. v. 
Hoppes Mfg. Go., 170 F. 2d 962, 964 (C.A. 6) ; N.L.R.B. 
y. Reed & Prince Manufacturing Go., 205 F. 2d 131,137- 
138 (C.A. 1), certiorari denied, 346 U.S. 887.12a

Petitioners’ further contention (Br., p. 20) that 
their unilateral action was proper even assuming that 
no impasse existed is plainly without merit. N.L.R.B. 
v. Bradley Wash fountain Go., 192 F. 2d 144 (C.A. 7), 
on which petitioners solely rely, concerns increases 
granted only after the union has rejected them. Here 
the Union was repeatedly advised that petitioners could 
not afford any increases because they were allegedly 
losing money.* 13

C. The Union’s alleged loss of majority did not relieve 
petitioners of their duty to bargain

As described on pp. 3-9, supra, petitioners went 
through the motions of bargaining through August 10, 
1953; at no time during this period did they express any

i2a 'j'jjg fac  ̂ that the Union’s requested wage increases may have 
exceeded those ultimately put into effect by petitioners did not 
justify the unilateral conduct. In presenting its wage proposals 
to the petitioners, the Union “made clear that the union demands 
were subject to bargaining” (Majure Transport Co. v. N.L.R.B., 
198 F. 2d 735, 739 (C.A. 5 )). See Armstrong Cork Co. v. N.L.R.B., 
211 F. 2d 843, 848 (C.A. 5).

13 Petitioners’ contention (Br. p. 20) that the Union had agreed to 
the increases in advance cannot be sustained before this Court in 
view of the Trial Examiner’s and Board’s discrediting of the testi­
mony on which petitioners rely (P.A. 98a-100a; 81a-83a) and their 
crediting of the Union’s denial that it made any such agreement 
(P.A. 99a-100a; 58a-59a, B.A. 79b-81b, 60b, 67b-68b). N.L.R.B. 
v. Whittenberg Construction Company, 200 F. 2d 157, 159-160 (C.A. 
6). As the Trial Examiner noted (P.A. 100a), Piccoli’s testimony 
with regard to this issue (P.A. 72a-73a), relied upon by petitioners 
(Pet. Br. p. 20), does not contribute to a resolution of the conflict.



18

doubt of the Union’s representative status. However, 
two weeks later petitioners forwarded to the Board’s 
.Regional Office a photostatic copy of a petition signed 
by a majority of the employees in the bargaining unit 
purporting to revoke the Union’s bargaining authority. 
Although this petition was dated June 3, more than two 
months prior to the corporation’s last bargaining meet­
ing with the Union, petitioners now contend that be­
cause of this petition they wrere under no duty to bar­
gain with the Union at any time after June 3. Peti­
tioners rely solely on Mid-Continent Petroleum Co. v. 
N.L.R.B.} 204 P. 2d 613, certiorari denied, 346 U.S. 
856, in which this Court decided that an employer was 
not bound to recognize a certified union where, six weeks 
after the certification, the union lost its majority be­
cause of normal labor turnover and without any unfair 
labor practices by the employer.14 Aside from the fact 
that the record indicates that the loss of majority was 
only temporary,15 in the instant case the Union’s loss 
of majority was preceded—as we have shown on pp. 13- 
17, supra—by bad faith bargaining by petitioners as 
well as by a layoff designed to disparage the Union (see 
pp. 19-23, infra). The courts have uniformly held that 
any loss of majority following such unfair labor prac­
tices is attributable thereto and does not relieve the 
employer of his duty to bargain. As this Court 
observed in the Mid-Continent case, at 614, “ There is

14 A question virtually indistinguishable from that presented in 
Mid-Continent is presently before the Supreme Court in Ray Brooks 
v. N.L.R.B., No. 536, Oct. 1953 term, certiorari granted, 347 U.S. 
916. The opinion below is reported at 204 F. 2d 899 (C.A. 9).

15 The record shows that subsequent to the execution of the peti­
tion many of the signers rejoined or again favored the Union (P.A. 
78a-81a, B.A. 73b-75b, 79b).



19

no doubt, of course, that where the employer’s obstruc­
tive tactics, delays, and other unfair labor practices 
may have contributed to a loss of majority status, the 
employer is guilty of an unfair labor practice in not rec­
ognizing the bargaining agents selected before such 
unfair labor practices took place. Franks Brothers Co. 
v. N.L.R.B., 321 TJ.S. 702.”  Accord: N.L.R.B. v. S. H. 
Kress & Co., 194 F. 2d 444, 446 ( C .A .  6 ); N.L.R.B. v. 
Gotten, 105 F. 2d 179, 181-182 (C.A. 6) ; N.L.R.B. v. 
Porcelain Steels, 138 F. 2d 840 (C.A. 6).

II. Whether Substantial Evidence on the Record Considered 
as a W hole Supports the Board’s Finding That the Partner­
ship Laid Off Its Employees in Order to Discourage Their 
Union Adherence and to Avoid Bargaining, in Violation of 
Secton 8 (a ) (3 )  and (1 )  of the Act, The Board Con­
tends That This Question Should Be Answered “ Yes”

As already noted, at the end of the second bargaining 
meeting the Union’s wage demands were the principal 
issue. The partnership took the position, belied by 
tbe numerous wage increases granted shortly thereafter, 
that it could not give any increases because it was 
losing money. The partnership then abruptly 
shut down the plant without explanation to the em­
ployees or notice to the Union, purportedly going out 
of business (P.A. 66a). A  few days after the shutdown 
tbe corporation took over the plant, carrying on the 
same operations, under the same name and the same 
management, and with the same facilities.18 Immedi- 16

16 Dickey, the active partner, became the sole stockholder in the 
corporation, occupied all its offices except that of president, and, as 
the Board found (P.A. 102a), “was the final authority in connection 
with labor matters * * * as he previously had been with the part­
nership” (P.A. §3a-84a, n. 1, 102a; 65a, 76a, B.A. 56b, 29b, 31b, 
32b). The plant manager and the general manager remained the 
same (P.A. 83a, n. 1; B.A. 7b, 13b-14b). With one exception, all 
the employees who had worked for the partnership were employed



20

ately thereafter the corporation granted a series of wage 
increases without notifying the Union and avoided any 
further meetings with the Union for two months. When 
a new meeting was finally held, the corporation repeated 
the previous representations of the partnership that 
it could not grant any increases because it was 
losing money (B.A. 66b), but failed to respond to the 
Union’s suggestion for a wage reopening clause to be 
effective when the Company was making money {supra, 
pp. 8-9). These circumstances fully warranted the 
Board’s conclusion that the Company’s layoff of the 
employees “ was as ill-intentioned as its other actions”  
{Joy Silk Mills, Inc, v. N.L.R.B., 185 F. 2d 732, 742 
(C.A.D.C.), certiorari denied, 341 U.S. 914). See 
N.L.R.B. v. Cape County Milling Co., 140 F. 2d 543, 
545 (C.A. 8), enforcing 49 NLRB 226, 239-241. Indeed, 
Dickey’s own admission (P.A. 95a; 70a) that the shut­
down and subsequent incorporation were “ provoked”  
by the union and by “ what looked like an impossible 
situation with the union”  suggests that the layoffs 
were illegally motivated.
by the corporation (P.A. 90a; B.A. 23b), and the employees re­
tained the seniority they had acquired under the partnership (P.A. 
102a; B.A. 70b). The corporation continued to do the same kind 
of work as the partnership, occupied the same plant, and, indeed, 
fulfilled a contract signed on the partnership’s behalf (P.A. 102a; 
69a, B.A. 9b-10b, 12b, 36b, see p. 12, n. 12, supra). These facts 
fully support the Board’s finding, not seriously disputed by peti­
tioners, that the corporation was but a “ disguised continuance” 
or alter ego of the partnership. N.L.R.B. v. Fred P. Weissman Co., 
170 F. 2d 952, 954 (C.A. 6), certiorari denied 336 U.S. 972, enforcing 
69 NLRB 1002, 1026-1027; N.L.R.B. v. Colten, 105 F. 2d 179, 183 
(C.A. 6 ) ; N.L.R.B. v. National Shoes, Inc., 208 F. 2d 688, 691 
(C.A. 2). Mount Hope Finishing Co. v. N. L. R. B., 211 F. 2d 365 
(C.A 4.), is distinguishable on its facts. There, the alleged prede­
cessor corporation occupied a different plant and employed dif­
ferent employees from those of the alleged successor corporation 
(211 F. 2d at 372). Here, both the plant and the employees re­
mained the same (P.A. 90a; B.A. 23b).



21

The Board’s conclusion is buttressed by the fact that 
the reasons offered by petitioners for the layoff do not 
“ stand under scrutiny”  (N.L.R.B. v. Bant, 207 F. 2d 
165, 167 (C.A. 9) ) .  Thus, Dickey testified (P.A. 93a; 
66a) :

Mr. Zalac * * * told our negotiating committee 
that unless we could pay more money we should 
shut the plant down, and * * * I  considered he 
was a greater economist than we were and a much 
smarter man, so we therefore accepted his advice 
and shut the thing down.

It is obvious that, as the Trial Examiner observed, “ To 
accept Dickey’s statement # * would be to believe ar­
rant nonsense”  (P. A. 96a). Such testimony by an ac­
tive executive with extensive business connections 
“ bears its own death wound”  (N. L. R. B. v. Robbins 
Tire & Rubber Co., 161 E. 2d 798, 800 (C. A. 5)) .

Equally implausible is petitioners’ contention (Pet. 
Br., pp. 14-16) that the shut-down was motivated by 
the fact that the plant was losing money. As evidence 
of its alleged losses, petitioners offered only Dickey’s 
uncorroborated testimony (P. A. 93a-94a; 66a) ; they 
did not produce any financial records, either when the 
Union asked for them during negotiations or at the 
hearing. In view of petitioners’ significant silence, it 
is reasonable to suppose that these records, if produced, 
would not have shown the losses alleged. N. L. R. B. v. 
Ohio Calcium Co., 133 P. 2d 721, 727 (C.A. 6). Fur­
thermore, the affirmative evidence indicates that the 
plant was not in fact losing money. I f  it had been, it is 
improbable that the corporation would have voluntarily 
increased the wages of most of its employees after re­
opening. Prior to the shutdown, the partnership began



22

preparations for the employment of women employees, 
none of whom was then working in the plant,17 and after 
the plant reopened, the corporation hired women em­
ployees (P . A. 94a; B. A. 63b, 67b, 75b). Three weeks 
before the shutdown the partnership signed a $700,000 
contract with the Air Force, part of which was to be 
performed at the Lisbon plant, and which contemplated 
the delivery of 1,000 cargo tie-down units in June 1953 
(see p. 12, supra). These circumstances are consist­
ent only with the existence of a going, profitable con­
cern ; they do not reflect a plant on the verge of a shut­
down from continued losses.

Completely without support in the record is counsel’s 
further suggestion (Pet. Br., pp. 16-17) that the part­
nership temporarily locked out its employees to put 
pressure on the Union to reduce its economic demands. 
This contention is in direct conflict with Dickey’s testi- 
money that the partnership intended to shut down per­
manently (P . A. 94a; 66a). In any event, Davis Furni­
ture Go. v. N. L. R. B., 205 F. 2d 355 (C.A. 9), and Mor- 
a/nd Bros. Beverage Go. v. 'N. L. R. B., 190 F. 2d 576 (C. 
A. 7), on which petitioners rely, are inapplicable here, 
since both involved a lockout following a bargaining 
impasse. As we have shown on pp. 16-17, supra, here 
there was no bargaining impasse; instead, the partner­
ship had before it the Union’s suggestion for a 30-day 
wage reopening clause—a suggestion to which the part­
nership never replied. Similarly, Mount Hope Finish­
ing Go. v. N. L. R. B., 211 F. 2d 365 (C. A. 4), heavily 
relied on by petitioners (Pet, Br., p 16), is inapplicable 
here. In Mount Hope, the Court found (211 F. 2d at 
371-372) that a plant shutdown did not violate the Act

171.e., the partnership began to interview women for employment 
and to build rest room facilities for women (B.A. 63b, 67b).



23

where it was motivated by economic losses accentuated 
by union pressure. Here, the partnership’s decision to 
close its plant was not influenced by its alleged losses, 
since, as we have shown, the partnership was not in fact 
losing money.

III. Whether the Board Properly Found That After the Black­
smiths’ Union Merged with Another Union to Form the 
Boilermakers’ Union, the Corporation’s Duty to Bargain 

W ith the Boilermakers’ Union W as the Same as Its Duty to 
Bargain W ith the Blacksmiths’ Union W ould Have Been 
Absent the Merger. The Board Contends That This Ques­
tion Should Be Answered “ Yes”

As we have previously noted, about July 7, 1953, the 
Blacksmiths’ Union, whose name appeared on the certi­
fication issued after the election, merged with another 
labor organization to form the Boilermakers’ Union.18 
Thereafter, the Regional Director, with the approval of 
the Board, issued an amended certificate bearing the 
name of the Boilermakers’ Union. By approving this 
amended certificate, the Board determined that the cor­
poration’s obligation to bargain with the Boilermakers’ 
Union was the same as its obligation to bargain with 
the Blacksmiths’ Union would have been, had no merger 
taken place.19 Petitioners contend (Pet. Br., pp. 25-31), 
that this determination was improper (1) because the 
Blacksmiths’ Union and the Boilermakers’ Union al­
legedly are two different organizations; and (2) because 
the procedure leading up to the issuance of the

18 Although the merger was formally announced on July 7, the 
Blacksmiths’ Union continued to represent the employees and the 
corporation continued to recognize it as the employees’ bargaining 
representative through at least August 10, 1953, the last bargaining 
session (supra, pp. 7-9).

19 See, e.g., Cadillac Automobile Co. of Boston, 90 NLRB 460, 
461, n. 3; United States Plywood Cory., 98 NLRB 1330, n. 2 ; Claro- 
stat Mfg. Co., 105 NLRB No. 2.



24

amended certification was invalid. These contentions 
are without merit.

1. Whether an unincorporated association is the same 
organization as its predecessor or a different organiza­
tion is, of course, a question to be determined by the 
finder of fact. Crawford v. Athletic Association of 
University of Nebraska, 82 N. W. 944, 945, 111 la. 736. 
In the instant case, the Board’s finding that the Boiler­
makers’ Union is the same organization as the Black­
smiths’ Union for the purposes of acting as a collective 
bargaining representative is proper.

The merger in question had been under consideration 
since 1951 (B. A. 44b-45b). During these two years, 
the officers of the two unions involved had worked 
closely together. The sole purpose of the merger was 
to increase the member unions’ organizing power. A f­
ter the merger had been agreed upon, the old Black­
smiths’ Union was assigned a number of union officers 
corresponding to its proportional share of members in 
the Boilermakers’ Union, such offices being taken over 
by the principal officers of the old Blacksmiths’ Union. 
The officers of the locals of the old Blacksmiths’ Union 
filled out the terms for which they had been elected.20 
The Boilermakers’ Union administered the contracts 
executed by the Blacksmiths’ Union, and the con­
tracting employers (including a corporation of which 
petitioner Dickey was vice-president, treasurer, and 
general manager), recognized the Boilermakers’ Union 
under the old contract (B. A. 33b-34b, 46b-47b; 
see p. 6, supra.') Zalac retained his position as 
business representative, continued to work out of

20 65 The Boilermakers Journal and the Anvil Chorus, 174, 185 
(August 1953); 65 Boilermakers-Blacksmiths’ Journal 193 (Sep­
tember 1953).



25

the same office, and received and answered letters sent 
to him as a representative of the Blacksmiths’ Union 
(P. A. 24a-26a, B. A. 44b, 90b). During the organiza­
tional campaign which preceded the election wron by 
the Blacksmiths’ Union, Zalac repeatedly informed 
the employees in the bargaining unit of the plans for 
the merger (B. A. 47b-48b). Finally, the employees 
within the unit remained the same before and after 
the merger. These circumstances fully support the 
Board’s finding (P . A. 103a) that “ no new legal entity 
resulted”  from the merger, and that the “ situation 
represented nothing more than a change of name in­
sofar as the interest of the [Company] lay” . Clearly, 
“ there was no such disruption or change of identity 
as to affect in any manner the validity of the parts 
of the order requiring petitioner to bargain col­
lectively with the union.”  Continental Oil Co. v. N. L. 
R. B., 113 F. 2d 473, 478 (C. A. 10), certiorari denied on 
this point, 311 U. S. 637, 313 U. S. 212.21

Contrary to petitioners’ contention, the fact that the 
Boilermakers’ Union filed, following the merger, new

21 In the Continental Oil case, before filing charges with the Board 
the union which sought bargaining changed its name and affiliation. 
See also E. A. Laboratories v. N.L.B.B., 188 F. 2d 185, 188 (C.A. 
2), employer’s petition for certiorari denied, 342 U.S. 871 (order 
to bargain with contracting international only, where international 
had revoked contracting local’s charter); N.L.R.B. v. Franks Bros., 
137 F. 2d 989, 992 (C.A. 1), affirmed, 321 U.S. 702 (membership 
cards in international union included in determining affiliated local’s 
majority) ; Monroe County Alliance v. Owens, 25 So. 876 (S. Ct., 
Miss.), (identity of county alliance formerly composed of delegates 
not changed when membership began to consist of farmers from 
farmers’ alliances which had formerly elected delegates); Missouri 
Service Company, 87 NLRB 1142 (where certified local amal­
gamated with another local, certification amended to bear name of 
amalgamated local) ; Cadillac Automobile Company of Boston, 90 
NLRB 460 (where employees in employer’s industry split off from 
certified local and formed separate local, certification amended to



26

affidavits under Section 9 (h) of the Act and a new fi­
nancial report under Section 9 ( f )  and (g) (P. A. 9a) 
does not establish that it was “ a new and different union 
from the Blacksmiths.”  In the first place such filing 
was necessary since, as we have seen, the joint conven­
tion elected a new slate of officers and increased dues.22 
Furthermore, it is reasonable to assume that the union 
would have filed new affidavits and statements simply 
to reflect the change in name on the records filed with 
the Board. Certainly it cannot be contended that the 
election of a new set of officers, a dues increase, and a 
change in name require a finding that the identity of the 
labor organization has changed. See Crawford v. Ath­
letic Association of University of Nebraska, 82 1ST. W. 
944, 945, 111 la. 736.

2. Petitioners also dispute the continued life of the 
certification following the merger on July 7 and the 
validity of the procedure leading up to the issuance of 
the amended certification. However, as we have previ­
ously noted (see, pp. 11,17-19, supra), the Board based 
its finding that petitioners were under a duty to bargain 
with the Blacksmiths’ Union after its alleged loss of 
majority on June 3, not on the certification, but on the 
Blacksmiths’ election majority and petitioners’ unfair 
labor practices preceding the alleged loss of majority, 
which loss took place prior to the merger. Thus, the 
issue presented is not whether the certification was 
vitiated by the merger on July 7, or whether the

bear name of separate local); Bushnell Steel Company, 96 NLRB  
218 (where employees in employer’s locality split off from certified 
local and formed separate local to facilitate contact between em­
ployees and union, certification amended to bear name of separate 
local); Midland Rubber Corporation, 108 NLRB No. 128 (local 
formed by merger of two locals held successor to contract signed 
by one of them).

22 65 Boilermakers-Blacksmiths’ Journal 193-194 (August 1953),



27

amended certification was properly issued, but whether 
the merger resulted in the transfer of the Blacksmiths’ 
bargaining rights to the Boilermakers’ Union. Fur­
thermore, it seems obvious that if such a transfer re­
sulted, the issuance of the amended certification, as the 
Board found (P.A. 103a), did not prejudice the rights 
of petitioners. Petitioners ’ contention that the proceed­
ings leading to such issuance were invalid because they 
did not receive a hearing is plainly without merit, since 
they did not dispute the allegations of fact on which the 
motion to amend was based, and, indeed, stipulated to 
them at the unfair labor practice hearing (B.A. 45b- 
46b). “ Neither the statute, nor the Constitution, gives 
a hearing where there is no issue to decide.”  Fay v. 
Bonds, 172 F. 2d 720, 725 (C.A. 2). Furthermore, peti­
tioners had an opportunity to present their position to 
the Board, and in fact did so (B.A. 6b, 82b, P.A. 11a- 
12a, 15a-17a).

R E L IE F

For the reasons stated, it is respectfully submitted 
that the petition to review and set aside the Board’s 
order should be denied, and that a decree should issue 
enforcing the Board’s order in full.

G eorge  J . B o t t ,

General Counsel, 
D a v id  P. F in d l in g , 

Associate General Counsel,
A. N o r m a n  S o m e r s , 

Assistant General Counsel, 
S a m u e l  M. S in g e r ,

N a n c y  M. S h e r m a n ,

Attorneys, National Labor Relations Board.

S e p t e m b e r , 1954.



A P P E N D IX

The relevant provisions of the National Labor Rela­
tions Act, as amended (61 Stat. 136, 29 U.S.C., Supp. Y, 
Secs. 151, et seq.), are as follows:

R ig h t s  of E m p l o y e e s

Sec. 7. Employees shall have the right to self­
organization, to form, join, or assist labor organiza­
tions, to bargain collectively through representa­
tives of their own choosing, and to engage in other 
concerted activities for the purpose of collective 
bargaining or other mutual aid or protection, and 
shall also have the right to refrain from any or all 
of such activities except to the extent that such 
right may be affected by an agreement requiring 
membership in a labor organization as a condition 
of employment as authorized in section 8 (a) (3).

U n f a ir  L a b o r  P r a g t io e s

Sec. 8 ( a )  It shall be an unfair labor practice for 
an employer—

(1) to interfere with, restrain, or coerce em­
ployees in the exercise of the rights guaranteed 
in section 7;

*  *  *

(3) by discrimination in regard to hire or ten­
ure of employment or any term or condition of 
employment to encourage or discourage member­
ship in any labor organization:

* * *



29

(5) to refuse to bargain collectively with the 
representatives of his employees, subject to the 
provisions of section 9 (a).

*  *  *

R e p r e s e n t a t iv e s  a n d  E l e c t io n s

Sec. 9 (a) Representatives designated or selected 
for the purposes of collective bargaining by the 
majority of the employees in a unit appropriate for 
such purposes, shall be the exclusive representa­
tives of all the employees in such unit for the pur­
poses of collective bargaining in respect to rates 
of pay, wages, hours of employment, or other con­
ditions of employment:

*  *  *

P r e v e n t io n  of U n f a ir  L a b o r  P r a c t ic e s

See. 10 (a) The Board is empowered, as here­
inafter provided, to prevent any person from en­
gaging in any unfair labor practice (listed in sec­
tion 8) affecting commerce. This power shall not 
be affected by any other means of adjustment or 
prevention that has been or may be established by 
agreement, law, or otherwise: * * *

(c) * * * I f  upon the preponderance of the 
testimony taken the Board shall be of the opinion 
that any person named in the complaint has en­
gaged in or is engaging in any such unfair labor 
practice, then the Board shall state its findings of 
fact and shall issue and cause to be served on such 
person an order requiring such person to cease 
and desist from such unfair labor practice, and to



30

take such affirmative action including reinstate­
ment of employees with or without back pay, as will 
effectuate the policies of this A ct: * * *

(e) The Board shall have power to petition any 
circuit court of appeals of the United States (in­
cluding the United States Court of Appeals for 
the District of Columbia), or if all the circuit 
courts of appeals to which application may be made 
are in vacation, any district court of the United 
States (including the District Court of the United 
States for the District of Columbia), within any 
circuit or district, respectively, wherein the un­
fair labor practice in question occurred or wherein 
such person resides or transacts business, for the 
enforcement of such order and for appropriate 
temporary relief or restraining order, and shall 
certify and file in the court a transcript of the en­
tire record in the proceedings, including the plead­
ings and testimony upon which such order was 
entered and the findings and order of the Board. 
Upon such filing, the court shall cause notice 
thereof to be served upon such person, and there­
upon shall have jurisdiction of the proceedings and 
of the question determined therein, and shall have 
power to grant such temporary relief or restraining 
order as it deems just and proper, and to make and 
enter upon the pleadings, testimony, and proceed­
ings set forth in such transcript a decree enforcing, 
modifying and enforcing as so modified, or setting 
aside in whole or in part the order of the Board. 
No objection that has not been urged before the 
Board, its member, agent, or agency, shall be con­
sidered by the court, unless the failure or neglect to



31

urge such objection shall be excused because of ex­
traordinary circumstances. The findings of the 
Board with respect to questions of fact if supported 
by substantial evidence on the record considered 
as a whole shall be conclusive. * * *

* * #

☆  U. S . GOVERNMHNT PRINTING OFFICE: 1954 SI4802 S2F