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18 New Eng. L. Rev. 965 (1982-1983)
The Midwest Piping Doctrine Redefined: A Matter of Policy

handle is hein.journals/newlr18 and id is 983 raw text is: COMMENTS
The Midwest Piping Doctrine Redefined:
A Matter of Policy
The National Labor Relations Board's (Board) recent decisions in RCA
Del Caribe' and its companion case, Bruckner Nursing Home,2 represent a
dramatic shift in Board policy concerning an employer's duty to remain neu-
tral during recognitional disputes arising between rival and incumbent unions.
Under the doctrine first enunciated in Midwest Piping & Supply Co.,3 an em-
ployer was barred from continuing to negotiate a collective bargaining agree-
ment with an incumbent union when a real question concerning representa-
tion arose.' The underlying rationale for imposition of this obligation of
neutrality was to guarantee to the employees their fundamental right to select
a collective bargaining representative of their own choosing free from em-
ployer intervention.' Such an obligation, however, no longer exists subsequent
1. RCA Del Caribe, Inc., 262 N.L.R.B. No. 116, 110 L.R.R.M. (BNA) 1369 (July 16,
2. Bruckner Nursing Home, 262 N.L.R.B. No. 115, 110 L.R.R.M. (BNA) 1374 (July 16,
1982). The Board in Bruckner addressed the question of whether an employer may properly rec-
ognize and negotiate with one of two or more competing rival unions prior to the filing of a valid
election petition in initial organization situations without violating the National Labor Relations
Act. The Board stated, we will no longer find 8(a)(2) violations in rival union, initial organizing
situations when an employer recognizes a labor organization which represents an uncoerced, unas-
sisted majority, before a valid petition for an election has been filed with the Board. Id. at 9-10,
110 L.R.R.M. (BNA) at 1376. The Board maintained that only when the employer had knowl-
edge of a valid election petition would it be required to refrain from continuing to recognize and
negotiate with one of the competing unions. Id. at 10, 110 L.R.R.M. (BNA) at 1376-77.
3. 63 N.L.R.B. 1060 (1945) (hereinafter cited as Midwest Piping). The Midwest Piping doc-
trine is a direct outgrowth of the parent doctrine of employer neutrality in matters relating to
employees' choice of bargaining representatives. Suburban Transit Corp. v. NLRB, 499 F.2d 78,
89 (3d Cir. 1974) (footnote omitted) (Adams, J., dissenting) (quoting NLRB v. National Con-
tainer Corp., 211 F.2d 525, 536 (2d Cir. 1954)).
4. See infra notes 46-48 and accompanying text.
5. As explained by Judge Adams in his dissent in Suburban Transit, 499 F.2d at 89 (3d Cir.
The doctrine promotes the general objective of preserving the employees' free choice

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