TWENTY-SIXTH ANNUAL REPORT - National Labor Relations Board

Enforcement Litigation 163
b Assistance or Support of Labor Organizations or Interference With
Their Administration—Section 8(a)(2)
(1) Support or Assistance of One Union as Against Another
In enforcing the Board's order in one case,7 the Seventh Circuit
observed, "When two unions are vying for majority support of his
employees, an employer must refi am from any action which
tends to gii e either an advantage over its rival Recognition of one
competitor as bargaining agent during this contest period, absent
proof of majority support, is a proscribed act " 8 The employer here,
in the process of renegotiating its contract with the "incumbent" union
at one of its several plants, continued bargaining and executed a new
interim contract with this union, despite the fact that the Board, in
a proceeding under section 9(c) of the act instituted by a rival labor
organization, had formally determined that a "question of representation"
existed, and had oidered an election to ascertain which union,
if any, the employees preferred In holding that the employer's
action, in these circumstances, breached the duty of neutrality imposed
by section 8(a) (2) , the court gave qualified approval to the Board's
Midwest Piping doctrine 9 Once the Board has ordered an election
in the section 9(c) proceeding, the court stated, "a real question of
representation must be said to exist . . absent a clear showing of
majority representation by evidence of substantial nature" The
court rejected the contention that the incumbent union had made such
a "clear showing of majority representation" in that almost all of the
employees in the bargaining unit were paying dues to it under checkoff
authorizations executed some time before
In another case," the Seventh Circuit again upheld the Board's
conclusion that the employer had illegally "assisted" one of two competing
unions by conduct which was also illegal under section 8(a)
(1) and (3), i e , directing vai ious acts of reprisal against the employees
because they repudiated thea incumbent bargaining representa-
1 St Louts Independent Packing Co (Swift) v NLRB, 291 F 2d 700
I] The quoted passage first appesred in the same court's opinion in NLRB v Indianapolis
Newspapers, 210 F. 2d 501 (1954)
8 See Midwest Piping ce Supply Co • Inc 63 NLRB 1060 (1945), and 'Witham Penn
Broadcasting Co. 93 NLRB 1104 (1951) , also Twenty third Annual Report (1958),
pp 60-61 ., and Twenty-fourth Annual Report (1959), p 60 But compare the judicial
decision discussed in Nineteenth Annual Report (1954), pp 124-125, also, District 60,
United Mine Workers v NLRB, 234 F 2d 565 (C A 4) (1056), remanding 114 NLRB
193 Cleaver Brooks Mfg Corp v NLRB, 264 F 2d 637 (C A 7) (1959), setting aside
120 NLRB 1135, certiorari denied 361 US 817 (1959), NLRB v Wheland Co. 271 F
2d 122 (CA 6) (1959), setting aside 120 NLRB 814 and NLRB v Swift it Co, 294
F 2d 285 (CA 3), setting aside 128 NLRB 732
to NLRB v Kiekhaefer Corp, 291 F 2d 700
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