Taormina Co.

884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the Petitioner failed to prove that the exceptions were served on the Employer in conformity with Section 203.616 of the Board's Rules and Regulations, or indeed were timely served at all. Thus, there remains for consideration only the Petitioner's contention that its failure to effect service in accordance with the Board's require- ments constituted only a "technical" noncompliance for which, absent a showing of prejudice to the Employer, the exceptions should not be dismissed. We reject this contention. The Board in the R d R News Cognpany case, supra, held without qualification that the serv- ice requirements set forth in the Rules and Regulations involved fundamental procedures essential to fairness. Consistent with that holding, we regard as irrelevant the fact that the Employer may or may not have been prejudiced by the Petitioner's noncompliance with these requirements. Accordingly, we hereby adopt the hearing offi- cer's recommendation and shall dismiss the exceptions and the petition. Order IT IS HEREBY ORDERED that the petition for investigation and certi- fication of representatives of employees of Beacon Manufacturing Company, Swannanoa, North Carolina, filed herein be, and it hereby is, dismissed. 6 This section is now designated as Section 102 61 in the Board 's Rules and Regulations effective March 1, 1951. E. A. TAORMINA, A. F. TAORMINA, MRS. MADELINE M. TAOR-NrINA, CHARLES MESSINA AND FRANK CULUCCHIA, CO-PARTNERS, D/B/A TAORbIINA COMPANY 1 and CITRUS, CANNERY WORKERS AND FOOD PROCESSORS UNIox 24473, AFL. Case No. 39-C-4-13,9. May 39, 1951 Decision and Order On January 24, 1951, Trial Examiner Sydney S. Asher, Jr., issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respond- ents filed exceptions to the Intermediate Report and a brief. The Board 2 has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. I The names of the Respondents appear as amended at the hearing 2 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this proceeding to a three-member panel [Chairman Herzog and Members Houston and Reynolds]. 94 NLRB No. 140. TAORMINA COMPANY 885 The rulings are hereby affirmed. The Board has considered the In- termediate Report, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner.3 Order Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondents, E. A. Taormina, A. F. Taormina, Mrs. Madeline M. Taormina, Charles Messina and Frank Culucchia, co-partners, d/b/a Taormina Company, Donna, Texas, and their agents, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively with Citrus, Cannery Work- ers and Food Processors Union 24473, AFL, as the exclusive repre- sentative of all production and maintenance employees at the Re- spondents' Donna, Texas, plant, excluding office and clerical em- ployees, professional employees, guards, watchmen, and all super- visors as defined in the Act, with respect to rates of pay, wages, hours of employment, and other conditions of employment. (b) In any other manner interfering with the efforts of Citrus, Cannery Workers and Food Processors Union 24473, AFL, to bar- gain collectively with the Respondents on behalf of the aforesaid employees. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with Citrus, Cannery Work- ers and Food Processors Union 24473, AFL, as the exclusive repre- sentative of all their aforesaid employees and, if an understanding is reached-, embody such understanding in a signed agreement. (b) Post at their Donna, Texas, plant, copies in English and Spanish translation of the notice attached hereto, marked "Appendix A." 4 Copies of such notice, to- be furnished by the Regional Director for the 3 Unlike the Trial Examiner , however, we do not rely upon the incident that resulted in the withdrawal of Apodaca from the February 7 negotiation meeting. At that meeting, the Respondents asked that Apodaca , a member of the Union 's negotiation committee, be excused because he was not an employee nor a union official and because the negotiations might reveal secret information that the Respondents would not desire disclosed to an "outsider", The Union acquiesced in this request, and Apodaca accordingly withdrew. Under these circumstances and upon the entire record, we do not believe that the Respondents ' mere request-not adamantly insisted upon by them and readily agreed to by the Union-imposed an improper limitation upon the employees ' choice of repre- sentatives in violation of the Act See Shell Oil Co, 93 NLRB 161 Nor do we rely upon the Trial Examiner 's remarks with respect to the reasonableness of the Respondents' insistence upon a performance bond I In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be inserted in the notice before the words , "A Decision and Order," the words "A Decree of the United States Court of Appeals Enforcing." 886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sixteenth Region, shall, after being duly signed by the Respondents' representative, be posted by the Respondents immediately upon receipt thereof, and maintained by them for sixty (60) consecutive days there- after in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondents to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Sixteenth Region in writ- ing, within ten (10) days from the date of this order, what steps the Respondents have taken to comply herewith. Appendix A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL bargain collectively upon request with CITRUS, CAN- NERY WORKERS AND FOOD PROCESSORS UNION 24473, AFL, as the exclusive representative of all employees in the bargaining unit described herein with respect to rates of pay, wages, hours of employment, and other conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All production and maintenance employees at our Donna, Texas, plant, excluding office and clerical employees, profes- sional employees, guards, watchmen, and all supervisors as defined in the Act. WE WILL NOT in any other manner interfere with the efforts of the above-named union to bargain collectively with us on behalf of the aforesaid employees. All our employees are free to become, remain, or refrain from becom- ing or remaining members of the above-named union or any other labor organization, except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the Act. E. A. TAORMINA, A. F. TAORMINA, Mrs. MADELINE M. TAORMINA, CHARLES MESSINA and FRANK CULUCCHIA, co-partners, d/b/a TAORMINA COMPANY, Employer. Dated ---------------- By ------------------------------------ (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. TAORMINA COMPANY S)i7 Intermediate Report Joseph A. Jenkins, Esq., for the General Counsel. Ewers, Cox, Port, Bentsen and Toothaker, by Scott Toothaker, Esq, of McAllen, Tex., for the Respondents and the Association. Mr. E. C. DeBaca, of Raymondville, Tex., and Mr. C. C. Turner, of Weslaco, Tex., for the Union. Statement of the Case Upon a charge filed by Citrus, Cannery Workers and Food Processors Union 24473, AFL, herein called the Union, the General Counsel for the National Labor Relations Board,' by the Regional Director for the Sixteenth Region (Fort Worth, Texas), issued a complaint dated October 6, 1950, against E. A. Taormina, A. F. Taormina, Mrs. Madeline M. Taormina, Charles Messina and Frank Culucchia, copartners, d/b/a Taormina Company,' Donna, Texas, herein called the Respond- ents. The complaint alleged that the Respondents had engaged in and were engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (5) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the complaint, the charge, and the notice of hearing were duly served. With respect to the unfair labor practices, the complaint alleges in substance that the Respondents, from on or about May 1, 1950, and at all times thereafter, failed and refused to bargain collectively with the Union, and thereby inter- fered with, restrained, and coerced their employees in the exercise of rights guaranteed in Section 7 of the Act. The Respondents filed an answer, denying that they had engaged in the unfair labor practices alleged. Pursuant to notice, a hearing was held on October 24, 25, and 26, 1950, at Edinburg, Texas, before Sydney S. Asher, Jr., the undersigned Trial Examiner, duly designated by the Chief Trial Examiner. The General Counsel and the Respondents were represented by counsel, and the Union by its representatives. All parties participated in the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bear- ing upon the issues. At the close of the hearing, the General Counsel moved to conform the pleadings to the proof with respect to names, dates, and other formal and nonsubstantive matters. The motion was granted without objection. All parties were afforded an opportunity to present their contentions orally upon the record, and did so. All parties were granted time after the close of the hearing to file briefs and/or proposed findings of fact and conclusions of law. A brief has been received from the Respondents and has been considered. Upon the entire record in the case, and from my observation of the witnesses, I make the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENTS E. A. Taormina, A. F. Taormina, Mrs. Madeline M. Taormina, Charles Messina and Frank Culucchia are copartners, doing business under the trade name and style of Taormina Company, by virtue of the laws of the State of Texas. They are engaged in the business of processing, canning, selling, and distributing vege- tables and tomatoes, having their principal office and place of business at Donna, Texas. During the year immediately preceding the hearing herein, the Re- I The General Counsel and his representative at the hearing are referred to herein as the General Counsel. The National Labor Relations Board is referred to as the Board. 2 The names of the Respondents appear as amended at the hearing. 888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondents, in the course and conduct of their business operations, purchased vegetables in excess of $210,000 in value, all of which were purchased in the State of Texas. During the same period, the Respondents purchased supplies consisting of tin cans, wooden crates, corrugated pasteboard cartons, labels, and similar items valued at approximately $150,000, of which in excess of 34 percent was shipped to their Donna, Texas, plant from outside the State of Texas During the same period, the Respondents sold and distributed products in excess of $750,000 in value, of which approximately $250,000 represented sales to purchasers outside the State of Texas. The Respondents admit, and I find, that they are engaged in commerce within the meaning of the Act. II. THE ORGANIZATION INVOLVED Citrus, Cannery Workers and Food Processors Union 24473, AFL, is a labor organization within the meaning of Section 2 (5) of the Act 8 III THE UNFAIR LABOR FRACTiCEs A. The Respondents' operati,ons° The Respondents' business is seasonal The plant operates approximately 9 months a year, from October until July. The peak seasons are usually reached in June, and in Nover<nber or early December, at which times approximately 175 to 250 employees are engaged in the processing and canning of vegetables and tomatoes. Durnig the off season, normally from March until ,May, between 45 and 50 employees are so engaged The plant is closed from July to October, at which time from 5 to 20 employees are engaged in maintenance and repair. There is a high labor turnover. The Respondents are members of the Texas Canners Association, herein called the Association, an organization of cannery operators E. A. Taormina is the Respondents' managing partner in charge of operations. A. F Taormina, his nephew, is the office manager and sales manager.' Scott Toothaker is an attorney who-represents the Association and'the Respondents with respect to the matters described herein. B. The refusal to bargain; interference, restraint and coercion 1. The appropriate unit, the Union's majority representation In accordance with a Supplemental Decision and Certification of Represen- tatives issued by the Board on August 9, 1949,8 I find that on that date the Union was, and at all times since has been, the exclusive representative of 5In their brief, the Respondents contend that , although the Trial Examiner may take judicial notice of the Board's finding that the Union was a labor organization within the meaning of the Act (Taormina Company, 83 NLRB 610), that finding was dated May 13, 1949, and there is no evidence that the Union has continued to be a labor organization since that date This contention lacks merit . The entire record herein is replete with evidence that the Union was, at all material times, engaged in negotiating a collective bargaining contract with the Respondents , with respect to rates of pay, -wages, hours of employment , and other conditions of employment of the Respondents' employees. 4 The findings of fact contained in this subsection are based primarily upon a stipulation of the parties and the undenied and credited testimony of A. F. Taormina. 5 E A. Taormina was referred to in the record as "Uncle," and will be so designated herein A. F. Taormina will be referred to herein as Taormina. e Taormina Company, Case No. 39-RC-63 . The Decision and Direction of Election will be found in 83 NLRB 610. TAORMINA COMPANY 889 the Respondents ' employ ees in an appropriate collective bargaining unit con- si,ting of all production and maintenance employees at the Respondents ' Donna, Texas, plant, excluding office and clerical employees , professional employees, guards. watchmen , and all supervisors as defined in the Act 2 The refusal to bargain a. The contract negotiations' So far as The record shows, there was no communication between the Union and the Respondents from the date of the Union's certification, August 9, 1949, until December 19, 1949. On the latter date E C. DeBaca, general organizer for the American Federation of Labor, wrote to Toothaker requesting that contract negotiations be opened between the Union and the Respondents. A correspondence ensued, during which DeBaca requested Toothaker to send him a copy of the Respondents' wage scale and job classifications. Toothaker replied, in part, as follows : Due to the fact that the new 75¢ minimum wage has just gone into effect,' the Company's wage scale is not definite at this time. They are in- creasing all wages to the minimum of 75¢ per hour, but have not arrived at a definite scale for those who in the past have been receiving more than the minimum. After several delays,° the parties met at the Respondents' plant in Donna, Texas, on February 1, 1950. The Respondents were represented by Taormina, Toothaker, and Robert F Barnes, one of Toothaker's law partners, the Union by DeBaca and a committee DeBaca distributed copies of a draft of the Union's proposed contract, which was read in its entirety.10 The parties then started' through the contract from the beginning , discussing each of the first five articles separately. With respect to the Preamble and Article I, Union Recognition, Toothaker requested that the American Federation of Labor be made a party to the contract." Article II, Grievances and Arbitration , And Article III, Man- agement Prerogatives, were also discussed . Article IV of the Union's proposed 7 The findings of fact contained in this subsection are based upon the testimony of DeBaca , Turner, Taormina, Barnes, and Toothaker. Where any material conflict appears, it will be indicated which testimony is credited . Neither E'Dalgo nor any of the union committeemen testified . Smith did not impress me as a sincere or forthright witness. His testimony is adopted only insofar as it was corroborated by that of other witnesses. 8 On October 26, 1949, Congress had amended the minimum wage provisions of the Fair Labor Standards Act of 1938 by increasing the minimum wage from 40 cents to 75 cents per, hour , effective January 25 , 1950 29 U S . C. Section 206 (a ), as amended October 26, 1949 ° On December 23, 1949, Toothaker wrote to DeBaca , informing him that Taormina was in New Orleans for the holidays and was not expected back until about January 3 or 4, and requesting that negotiations be deferred until Taoi mina 's return A meeting was then set for January 18, 1950. This meeting was postponed, due to the death of Taormina's mother in New Orleans DeBaca was also out of the area during this period of time. 30 The General Counsel and the Respondents each introduced into evidence a document purporting to be the Union's original draft of the proposed contract . The two documents differ in certain respects . I find that the document introduced by the Respondents (Respondents ' Exhibit 1, disregarding the pencil notations thereon ) Is a copy of the proposed contract submitted to the Respondents on February 1, 1950. This finding is based , in part , upon the fact that Respondents ' Exhibit 1 contains Toothaker 's pencil notations , and that some of these notations were later incorporated into the document introduced by the General Counsel. li On this point, the testimony of Barnes and Toothaker conflicts with that of DeBaca, who testified that Toothaker, at this meeting , did not want the American Federation of Labor to he a party to the contract DeBaca's testimony in this respect is rejected, and that of Barnes and Tootliaker is adopted as the more accurate. 890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contract merely provided that rates of pay, hours, and classifications should be as shown on "Addendum A." No "Addendum A" was, however, attached. Toothaker showed concern over the Union's wage demands, but DeBaca assured him that the 75 cents per hour required by the nuninnuu wage law would be satis- factory to the Union Taormina asked how the Union expected to arrive at job classifications, and DeBaca replied that the parties could refer to the classi- fications contained in existing contracts with firms in other areas. The parties then discussed Article V, Seniority As the proposed contract was the first submitted by the Union to any canner in the area, and as elections were then pending in other canneries in the area, at which the Union was seeking bargaining rights," the parties considered it likely that any contract finally agreed upon between the Respondents and the Union could serve as a model for future contracts between the Union and other canners in the area. In view of this possibility and the Respondents' membership in the Association, Toothaker suggested that J. Overby Smith, the Association's executive secretary, should attend future negotiations between the Respond- ents and the Union. The Union readily assented to this arrangement. Follow- ing this meeting, Toothaker contacted Smith and told him that the Respondents and the Union had agreed that Smith should be present at future bargaining sessions. Smith agreed to do so The parties met again on February 7, 1950, at the Respondents' plant. Taor- mina and Toothaker represented the Respondents, DeBaca and a, committee represented the Union. One of the members of the Union's committee was Roy Apodaca, who was neither an employee of the Respondents nor an official of the Union, but had been selected by the Union to serve on the negotiating committee. .Toothaker expressed the opinion that Apodaca was not a proper party to par- ticipate in the negotiations, and asked that he be excluded. This request was complied with and Apodaca withdrew Smith was then introduced to the union representatives as the Association's executive secretary, sitting as "an interested observer." Toothaker then announced that the only job classifications in the Respondents' plant were general labor, graders, warehousemen, and operators." The Union's representatives replied that they thought there should be many more classifications, and would attempt to secure copies of contracts used elsewhere in the industry, containing other classifications. With respect to wages, DeBaca asked for 77 cents per hour (2 cents above the new statutory minimum) for those employees who had been receiving between 50 cents and 70 cents per hour before the new minimum wage law became effective. Toothaker said he would consider the request. The parties then resumed discussion of Article V, Seniority, where they had left off at the end of the previous meeting. From there, they proceeded to discuss Article VI, Paydays, and Article VII, Holidays, on both of which articles they failed to agree They also discussed Article' VIII, Waiting Time. Thereafter, on March 13, 1950, the parties met again at the Respondents' plant." As previously, the Respondents were represented by Taormina and u For example, Texsun Citrus Exchange, 82 NLRB 540 (Weslaco , Texas ) ; Monte Alto Citrus Association, 83 NLRB 1132 (Monte Alto, Texas ) ; and Atlantic Commission Com- pany, Inc., 84 NLRB 944 (Donna, Texas). 's In this connection , it is noted that Taormina testified that the Respondents had a classification known as peelers , who were paid on a piecework basis. It does not appear, however, that this classification was mentioned to the Union at any time during negotiations. 1* DeBaca testified that the parties also met on February 13, but Toothaker denied that any meeting took place on that date . As DeBaca was admittedly "a little vague on February 13th," I credit Toothaker 's testimony in this respect, as the more accurate. TAORMINA COMPANY 891 Toothaker, the Union by DeBaca and a committee Smith also attended. Tooth- aker announced that the Respondents could not agree to any wage in excess of the statutory minimum of 75 cents per hour. The Union's representatives indi- cated that they would be satisfied with the legal minimum wage. In response to the Respondents' request of the previous meeting, DeBaca submitted a copy of a contract between the American Federation of Labor and the Florida Gold Citrus Corporation, which contained job classifications. The Respondents' representa- tives pointed out that this contract covered citrus canning plants, and the classi- fications which it contained were not applicable to vegetable canning plants, such as the Respondents'. They suggested that the Union's representatives attempt to secure copies of contracts from the Tri-State area," as the conditions in that area were similar to the conditions in the area of the Respondents' plant The parties then took up the contract where they had left off at the previous meeting, and discussed Article IX, Safety Standards, Article X, First Aid, Article XI, Ventilation, Article XII, Strikes and Lockouts, Article XIII, Laws, and Article XIV, Bulletin Board. All these provisions of the proposed contract, with certain modifications, were agreed to. Article XV, Check-off, was discussed, but the parties could not reach any agreement. The parties also discussed termination date, but no agreement was reached on this subject. The parties met again on April 11, 1950.'8 Smith was not present. DeBaca submitted a copy of a contract covering the employees of the Kuner-Empson Company, of Colorado, for the purpose of comparing the classifications con- tained in that contiact. The Respondents' representatives took the position that the classifications contained in the Kuner-Empson contract were not applicable to the Respondents' plant. The parties next turned their attention to the problem of checkoff, and a discussion of this subject followed. With respect to the duration of the contract, the Respondents' representatives wanted the contract to expire August 1, 1951, because the plant would be starting a new season in September or October. The Union's representatives, however, desired a contract of only 1 year's duration. On this matter the parties failed to agree The Union's representatives requested the Respondents to install a drinking fountain for its employees. The Respondents' representatives agreed to do so and later the Respondents purchased and installed such a drinking fountain. The Union's representatives also complained about- the employees' toilet facilities, and the Respondents later made the correction requested. It was agreed that the Respondents would mail to the Union a copy of their counterproposal." On April 22, 1950, Toothaker -mailed to DeBaca a copy of the Respondents' tentative counterproposal" Among other items, it provided that the American Federation of Labor should become a party to the contract, that the Union should execute a performance bond in the amount of $50,000, and that the contract should run for a term of 5 years from the date of execution. 11 Maryland, New Jersey, and Delaware. '° On April 1, 1950, DeBaca wrote to Toothaker asking that a meeting be held on April 4, 1950 The record does not reveal Toothaker 's reply "The findings of fact with respect to the meeting of April 11 are based upon the testimony of Toothaker . DeBaca testified , "I can't remember whether we met In April or not I don't think we did." In view of the uncertainty of DeBaca's Atatement witn respect to an April meeting. I adopt the testimony of Toothaker that the parties met on April 11. 1B Although Tootbaker testified that the Respondents' counterproposal was mailed to the Union on April 26, 1950, the letter enclosing It is dated April 22, 1950. Accordingly, I find that the Respondents' counterproposal was actually mailed on April 22, 1950. 892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The next meeting was held at the Respondents' plant on May 2, 1950.' At the suggestion of the Union's representatives, a change was made in the wording of the provision respecting the Respondents' right to hire and discharge in the Respondents' counterproposal. Holidays were discussed. The Union's repre- sentatives requested that employees who worked on a holiday be paid time and a half, but the Respondents were unwilling to agree. There was also some discussion with respect to the liability of the Union for unauthorized strikes. Although the record is not entirely clear on this point, it appears that a tentative agreement was reached on a no strike-no lockout clause. The Union's representatives reiterated their position that they desired only a 1-year contract. Furthermore, they stated that the Union would not agree to post a $50,000 performance bond Toothaker, Taormina, and Smith pointed out that, due to the recent change in the ininimum wage laws, the canners were having difficulty determining their future labor costs. They therefore suggested that the Respondents and the Union would be in a better position to bargain after the Respondents had had an opportunity to compute their costs, and that negotiations should accordingly be withheld "for a short period of time." The record does not clearly set forth the response of the Union's representatives. Toward the end of the session, Smith suggested "Why not let these negotiations go" and meet on a proposal to handle through the Association's office all union grievances against any Association member. Smith offered the services of his office to attempt the speedy settlement of such minor complaints. Toothaker then suggested that DeBaca and Smith make an appointment to discuss the matter further Accordingly, DeBaca visited Smith in the latter's office in Deslaco, Texas, on May 4. Smith outlined his proposal which was, in short, that whenever the Union had a grievance against any member of the Association, the Union would first file the grievance with Smith, and Smith would then attempt to settle the matter by direct contact with the canner involved. On May 5, Smith mailed to DeBaca a rough draft of the program, which read as follows : BETTER LABOR RELATIONS PROGRAM Members of the Texas Canners Association are very much in favor of a good labor relations program because it is felt that a complete understanding between employee and employer is economically beneficial to the employer and will, in most cases, obtain greater production from employees. In an effort to obtain a better labor relations program, the Texas Canners Association will be glad to assist employees in reaching a satisfaction on any complaint that might arise between employee and employer. In consid- eration of this better labor relations program the Union agrees to withhold further contract negotiations request for further elections and will follow the agreed procedure for the settlement of any claims before filing unfair labor practice charges with the National Labor Relations Board. The Texas Canners Association will exert every effort to settle all claims by the pro- cedure that follows : 1. When an employee feels that he has reason for any complaint against an employer the complaint should be immediately recorded with his Union representative. 19 On April 24, 1950, Toothaker wrote to DeBaca regarding a tentative arrangement to meet on April 26. Pointing out that Taormina would be busy "beginning Wednesday of this week and continuing for the balance of the week" with stockholders' meetings, and that the plant would commence to can tomatoes on May 1, Toothaker requested a postponement of the meeting until May 2. TAORMINA COMPANY 893 2. The representative of the Union will then discuss the complaint with the Executive Secretary of the Texas Canners Association and the complaint will be immediately referred to the plant owner for his consideration. 3. Should the causes for the complaint not be corrected within a reason- able time the Union representative shall notify the Executive Secre- tary of the Texas Canners Association and a conference will be arranged between the Union representative and the employer. 4. If a Union representative and employer are able to agree on a method of removing the causes of complaint the Union representative may agree to any reasonable time for correction. 5. If a Union representative and employer are unable to agree upon a correction or if they do reach an agreement and such agreement is not carried out within the time agreed upon the Union representative will then follow the established procedure in_handling Unfair Labor Practices. On May 11 DeBaca, accompanied by Frank E'Dalgo, general organizer for the American Federation of Labor, returned to Smith's office and discussed with Smith his written proposal. DeBaca mentioned to Smith two complaints which the Union had received, concerning canning plants other than the Respondents'. Smith thereupon contacted the canners involved, told them of the complaints, and received one definite assurance that the situation would be remedied. E'Dalgo pointed out that if the Union accepted Smith's program, it would then be denied the right to file representation petitions with the Board, or to ask the Board for the redress of any grievance 20 On May 22, 1950, a meeting was held in Toothaker' s office in McAllen, Texas. Those present were Toothaker, Smith, DeBaca, E'Dalgo, C. C Turner, secretary of the Union, and two union committeemen. At the beginning of the session, Toothaker announced that, due to Taormina's absence, anything decided at the meeting would not necessarily be binding upon the Respondents, but would have to be submitted to them for final approval. Toothaker stated that the Respond- ents could not contract with the Union, which he described as an organization "here today and gone tomorrow," unless the American Federation of Labor was made a party to the contract. He further reiterated the Respondents' demand that the Union post a $50,000 performance bond. E'Dalgo replied that the Board had certified the Union, not the American Federation of Labor, and that the Union would not agree to have the American Federation of Labor made a party to the contract. Smith brought up the matter of his "Better Labor Relations Program," and requested an answer from the Union on this proposal. He suggested that his program be adopted, and that the Union wait until the following season to negotiate a contract with the Respondents. The Union's representatives replied that they were happy to have the Association assist in negotiations, and that they would consider making the Association a party to the grievance procedure to be incorporated in the contract. DeBaca added that the Union might accept Smith's program if the Respondents would sign a con- tract for the duration of the season, covering only recognition of the Union, arbitration procedure, and some form of seniority, the remainder of the contract to be negotiated later Toothaker said that he would take this proposal to the Respondents for their approval, but that he did not believe that they would sign any of it. Smith then stated that if the Union's representatives did not 20 The findings of fact with respect to the meetings of May 4 and 11 are based upon the testimony of DeBaca and Smith whenever the testimony of DeBaca conflicts with that of Smith, that of DeBaca is accepted as the more credible. 894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD want to agree with him, he would withdraw his program and would have nothing more to do with it. On May 25, DeBaca wrote Toothaker, requesting that a meeting be set for May 27. Toothaker replied on May 20, stating : "Inasmuch as Mr. J. Overby Smith is in Austin, it will not be possible for us to meet Saturday morning .. . as you suggest." DeBaca replied, asking that a meeting be set for May 30, at Toothaker's office. Toothaker replied on May 29, pointing out that May 30 was a legal holiday, and that it would be difficult to get the necessary persons together to meet at that time. Toothaker's letter also stated that Taormina was leaving for New Orleans on May 31 and would not be back in his office until the middle of the following week, and suggested that the Union submit a counterproposal before the next meeting , covering all subjects contained in the Respondents' counterproposal. This letter, however, did not reach DeBaca before May 30. On that morning DeBaca, Turner, and E'Dalgo went to McAllen, intending to meet Toothaker and other representatives of the Respondents in Toothaker's office. Having arrived early, they stopped for ietreshment in a drug store Just below the office. While they were there, Toothaker entered the drug store for a cold drink, and was surprised to see the union representa- tives.21 When the Union's representatives mentioned the meeting, Toothaker asked : "Didn't you get my letter?" They replied that they had not received his letter and had come to McAllen toi the meeting. and complained that the contract negotiations had dragged on quite a while Toothaker agreed, stated that he had spoken to his clients and told them "time and time again" of the importance of meeting with the Union, and that Taormina had replied that he had more important business to attend to than to meet with the Union. Toothaker said: "I don't know what you are going to do about it, unless you get a court order or write a strong letter to make them understand they are supposed to meet with you." He added that he did not think that there was much chance that the Union was going to get a contract signed, that "Uncle" was the boss and did pretty much as he pleased, that the Respondents were constantly having other court proceedings and did not seem to be bothered by them, that "Uncle" had stated that he was "going to close the plant down, he won't have a union in there, and that we [the Union's representatives] were just wasting our time." Toothaker also stated that "Uncle" would not follow a contract even if he signed one, that the situation could not be changed by a "piece of paper," and that the Union "was picking on" the wrong man at the wrong time. E'Dalgo then asked: "Can you tell me who is the light man and when will be the right time and we will go get him?" Toothaker replied "No, I can't." 22 A discussion ensued concerning nine specific employees of the Re- spondents , regarding whom the Union had made inquiries On the same day, DeBaca wrote to the Respondents, stating that the Respond- ents were not bargaining in good faith as required by law, and demanding that the Respondents meet with the Union for the purpose of Conti act negotiations not later than June 5 and that they be prepared to meet in continuous negotiations until a satisfactory agreement was obtained Copies of this letter were sent to Toothaker and the Board's Regional Office. Meanwhile, the Union had in- 21 Toothaker 's office was closed Memorial Day, and he had merely stopped by to check the mail. 22 The findings of fact with respect to the conversation of May 30 are based upon the testimony of DeBaca and Turner. Turner was not sure whether some of the statements attributed to Toothaker were made on May 30, or on May 22, or whether they were made by Smith or Toothaker Toothaker denied making the statements attributed to him His denial is not credited It is found that the statements were made by Toothaker on May 30. TAORMINA COMPANY 895 vied the aid of the Federal Mediation and Conciliation Service, and Commis- sioner Walter C White had been assigned to the dispute Under White's auspices, a meeting was held on June 8 in Toothaker's office. In addition to White, the following people attended : Taormina, Toothaker, Turner, DeBaca, E'Dalgo, and two union committeemen. After White opened the meeting, E'Dalgo suggested that the parties go through the contract, article by article. Taormina pointed out that the Respondents were opposed to any seniority clause, and that it was impossible to list the job classifications in the Respondents' plant. Toothaker then commenced to read the contract. On reaching the preamble, Toothaker stated that the Respondents could not enter into any agreement with the Union unless the American Federation of Labor was made a party to the contract. Tempers flared between Taormina and E'Dalgo. Turner remarked that the delay in negotiations had caused the Union to lose some members. Toothaker thereupon stated that lie doubted that the Union still represented a majority of the employees in the unit E'Dalgo assured the Respondents' representatives that the Union still represented a majority of the employees, and pointed out that, in view of the Board's certification, it was not necessary for the Union to prove its majority status again At that point, White requested the Union's representatives to leave the room. He then told Taormina and Toothaker that if there was a question of the Union's right to represent the employees, he would be compelled to withdraw. The Respondents' representatives replied that they doubted the Union's majority status White then called the Union's representa- tives back into the room, and said that the Respondents' representatives had a statement to make. Toothaker then stated : "My clients refuse to bargain further on the contract until such time as the Union proves its majority status." E'Dalgo asked if Toothaker was refusing to bargain in defiance of the Board's certification. Toothaker responded : "Well, I don't believe we used the same words, but I think we understand each other." E'Dalgo then asked Toothaker : "Do you realize the position in which you have put your clients?" Toothaker replied: "I do." E'Da1go thereupon announced his intention of filing unfair labor prac- tice charges against the Respondents, and the meeting came to an end. On June 14, Turner wrote to the Respondents, requesting that negotiations be resumed on June 17 A copy of this letter was sent to Toothaker. On the fol- lowing day, June 15, the Union filed the charges heiein. On the same day, not knowing that unfair labor practice charges had been filed against the Respond- ents, Toothaker replied to Turner's letter, setting it meeting for June 20. On June 16, the Board's Regional Office notified the Respondents of the charges filed against them The parties met again on June 20 in Toothaker's office Taormina and Toothaker represented the Respondents, DeBaca, Turner, and a committee repre- sented the Union Toothaker announced that the Board had informed the Respondents that the Union had filed unfair labor practice charges against them. DeBaca assured Toothaker that, if the Respondents would negotiate in good faith, the Union would withdraw the charges. Toothaker requested information about the relationship between the Union and the American Federation of Labor. In reply, DeBaca explained that the Union was a "federal labor union" directly chartered by the American Federation of Labor, with no relationship to any international union. The Respondents' representatives insisted upon some kind of financial guarantee to protect the Respondents in case the Union breached the contract They offered to drop their demand for a performance bond if the Ameri- can Federation of Labor were joined as a party to the contract. It was agreed that Toothaker would write to Harry O'Reilly, director of organization for the American Federation of Labor, concerning the problem The parties then agreed 896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to an arbitration procedure. A tentative agreement was reached on seniority, if the Union would undertake to supply the Respondents with a sufficient number of employees at the beginning of the season. It was further agreed that, in lieu of a checkoff provision, the Union would be permitted to station a representative near the paymaster's window on paydays, for the purpose of collecting union dues. The Respondents agreed to supply the Union with a bulletin board for its use. The Union's representatives, consistent with their previous position, agreed that they would not request any increase in wages at that time. Finally, due to the reversal of the Respondents' previous position on the matter, an agreement was reached with respect to holidays. At the close of this meeting, all major issues had been tentatively settled except the American Federation of Labor as a signatory to the contract, the posting of a performance bond by the Union, the duration of the contract, and job classifications. In accordance with the agreement reached on June 20, Toothaker-wrote to O'Reilly on June 21. The letter read, in part, as follows : It is the company's position that in as much as this Local is affiliated with the A F of L that that organization should join the execution of the contract, be made a party thereto, and be responsible for the enforcement thereof, as well as be liable in case of any breach thereof. We take this position particu- larly in view of the fact that the Local is a new organization and there is considerable doubt in our minds that they will be able to enforce the obliga- tions of the contract without some assistance from the A F of L. A copy of this letter was sent to DeBaca. On July 7, DeBaca received a telegram from O'Reilly which read as follows f: THIS IS TO ADVISE YOU THAT THE CONTRACT BETWEEN F L U #24473 AND THE EMPLOYERS SHOULD BE EXECUTED BY THE UNION AND THE COMPANIES ON THEIR OWN BEHALF YOU AS AN A. F OF L ORGANIZER ASSIST IN NEGOTIATIONS BUT YOU CANNOT MAKE THE A. F. of L A PARTY TO THE CONTRACT THE A. F. OF L WILL NOT ASSUME ANY LIABILITY IN SUCH CONTRACT PLEASE ADVISE MR. SCOTT TOOTHAKER OF THIS On July 8, Turner wrote to Toothaker, quoting O'Reilly's telegram in full. In this letter, Turner stated that he understood that Taormina was out of town until the following week, and requested that negotiations be resumed as soon as possible after Taormina's return On July 18 Turner again wrote to Toothaker stating that he understood that Taormina was out of town until "sometime in August," and requesting that he be notified when Taormina would again be available for negotiations. On August 8 Toothaker wrote a letter to DeBaca which read as follows : Yesterday I talked to Mr. A. F. Taormina , who has recently returned fiom New Orleans , regarding further negotiations on the contract covering the employees of his plant . Due to the fact that there is now pending a charge against this Company, charging it with refusing to bargain collectively, we can see no advantage in further negotiations until some formal disposition is made of that charge. If you and the National Labor Relations Board feel that the Company has not been bargaining in good faith , we would suggest that this matter be set down for formal hearing , and be disposed of in that manner . If not, we would suggest that the charge be withdrawn and we will be glad to meet with you further TAORMINA COMPANY 897 On August 11, DeBaca sent the following telegram to the Board's Regional Office : TAOR.AMII'A (sic) CANNING CO THROUGH THEIR LAWYER IN A LETTER SAID THEY WOULD NEGOTIATE WITH US IMMEDIATELY IF WE WITHDREW CHARGES IDI WILLING TO WITHDRAW CHARGES PLEASE NOTIFY COMPANY The Board's field examiner, on August 14, sent the following telegram to both DeBaca and Toothaker : RE :1!-RG-139 TAORMINA COMPANY INSISTENCE THAT UNION WITHDRAW CHARGES BEFORE COMPANY WILL BARGAIN IS UPON ITS FACE AN UNFAIR LABOR PRACTICE. IF PARTIES MEET AND NEGOTIATE CONTRACT CHARGES MAY BE WITHDRAWN Sometime between June 20 and August 23, DeBaca called Toothaker on the telephone concerning the possibility of resuming negotiations. Toothaker asked : "What about this negotiating when these charges are pending')", and DeBaca replied. "We want to know if you're going to negotiate a contract with us We can always withdraw those charges" Toothaker answered that he would con- tact his clients and let DeBaca know. After the receipt of the above-quoted tele- gram from the Board, DeBaca again called Toothaker on the telephone and out- lined the contents of the telegram. Toothaker replied that he had been in touch with his clients, and that they were "pretty burnt up about these charges " He added: "If you would withdraw those charges, they are willing to meet with you" 23 The parties met for the last time on August 23 in Toothaker's office. Taormina and Toothaker represented the Respondents, DeBaca and Turner represented the Union. After the meeting had been under way for several minutes, Smith entered the room and remained for the duration of the session ' Toothaker stated that the Respondents could not sign a contract which gave them no recourse in case of the Union's breach, and that either the American Federation of Labor must be joined as a signatory to the contract, or the Union should post a $50,000 performance bond z5 Terming the Union a "fly-by-night" organization, Toothaker asked if the American Federation of Labor would not "stand behind" the Union, why should the Respondents? He added : "The Company is pretty sore, they don't feel right about your filing charges against them. I don't know that we can negotiate with you while there are charges pending. If you think we have violated any law, why, then, let the Board bring it up to a hearing and dispose of it." DeBaca replied, reviewing his correspondence with the Board's Regional Office with respect to withdrawing the charges, and told Taormina that if the Respondents "went ahead and negotiated the contract in good faith, if they did, the charges could be withdrawn but not until then." Toothaker then stated that the Respondents were "absolutely breaking up negotiations," and that further bargaining would be "just a waste of time." The meeting thereupon 23 The facts with respect to these telephone conversations are based upon the testimony of DeBaca 24 In view of the testimony of DeBaca and Toothaker that Smith attended this meeting, Smith's testimony that he did not attend any meetings after May 22 is rejected 25 Turner testified that the Respondents insisted, at all times, on both the American Federation of Labor as a party and the $50,000 performance bond DeBaca, Taormina, and Tooth5ker, however, testified that, at least on August 23, the Respondents' demands were in the alternative, and they had informed the Union that they would not insist on a performance bond if the American Federation of Labor were joined as a party to the contract I adopt the version of DeBaca, Taormina, and Toothaker. 953$41-52-vol. 94-58 898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ended. There had been no further meetings between the parties at the time of the hearing. 3. The issues and conclusions with respect thereto a. The contentions of the patties The General Counsel contends that the Respondents refused to bargain in good faith with the Union on April 22, 1950, the date when the Respondents submitted their counterproposal to the Union, and at all times thereafter. This contention is based upon the totality of the Respondents' conduct, including their insistence that the Union prove its majority status during the certification year, their refusal to bargain until the pending unfair labor practice charges were disposed of, their demand that the American Federation of Labor be a party to the contract, their demand that the Union post a $50,000 performance bond, the fact that on August 23, when only a few issues remained which had not been agreed upon, the Respondents refused to discuss these unsettled issues, and Smith's "Better Labor Relations Program" of May 5, 1950 The Union agrees in substance with the position taken by the General Counsel, but maintains that the exclusion of Apodaca from the meeting of February 7 constitutes additional evidence of the Respondents' refusal to bargain in good faith. The Respondents maintain that they abandoned any insistence that the Union prove its majority status, or that the charges be disposed of before bargaining could be continued. They contend that the demand for the performance bond and for the joinder of the American Federation of Labor were put forth for "horse trading" pur- poses, and that the Union failed to suggest a suitable alternative proposal, and, further, that Smith was not acting as the agent of the Respondents and his conduct, therefore, could not bind the Respondents. They state that they never unreasonably failed to meet with the Union, that all phases of the Union's pro- posal were discussed, then a counterproposal was submitted by the Respondents, and parts were actually agreed upon. Furthermore, they point out that the Union has never submitted any further written proposals, and has never re- quested the Respondents to reduce to writing those parts of the contract already agreed upon. Maintaining that the charges were filed in an attempt to per- petuate the certification, the Respondents state that they stand ready and willing to negotiate and to sign any reasonable contract submitted to them. b. The Respondents' demand that the Union prove its majority It is clear that, on June 8, 1950-10 months after the Union had been certified by the Board-the Respondents, represented by Taormina and Toothaker, ques- tioned the Union's representative status and refused to negotiate further unless and until the Union proved its majority. This insistence on the part of the Respondents resulted in the termination of that meeting and brought negotiations to a temporary halt.2' It is well settled that a union's representative status established by Board certification is conclusively presumed for a reasonable period of time, customarily 26 With respect to the meeting of June 8, Taormina testified on examination by the Trial Examiner as follows : Q Did that meeting break up solely because of the question of majority representa- tion, was that the stumbling block over which the meeting broke up? A. Well, it seemed there were several points entered into it but that seemed to be the main reason. TAORMINA COMPANY 899 1 yeas after certification 2' Thus, the Respondents' demand that the Union prove its majority, made within the "certification year," constituted evidence of the Respondents' refusal to bargain with the Union in good faith. It is true, as the Respondents point out, that the Respondents met twice more with the Union after June 8, and never thereafter reiterated their previous demand that the Union pro e its niajorit^ While this undoubtedly may be con- stiued as a reversal of the Respondents' prior position on the subject, the Respondents can derive no aid therefrom The harm, in the shape of unduly delayed negotiations, had been done.' Moreover, the Board may still issue an order where a respondent has engaged in unfair labor practices and has there- after voluntarily abandoned the unlawful conduct.29 To hold otherwise would defeat the Board's ability to guard against possible future recurrences of the illegal acts. c The Respondents' oisistenec upon disposition of the unfair labor practice charges It will be recalled that the Union filed the charges herein on June 15, 1950. Toothaker's letter to Dellaca of august 8 i eferred to these charges and stated that the Respondents could "see no advantage in turther negotiations until some formal disposition is made of that charge." In a later telephone con- versation with DeBaca, Toothaker made it clear that the resumption of ne- gotiations was contingent upon the Union's withdrawal of the charges. Thus, the Respondents made their compliance with the Act dependent upon the dis- missal of charges that they had been guilty of violating it. This further indi- cated the Respondents' refusal to bargain in good faith with the Union 30 After the Board's regional representative had warned both parties that the conditioning of further bargaining upon withdrawal of the pending charges was, in itself, a violation of the Act, the parties met again on August 23. The tact that the Respondents were willing to meet again with the Union's represent- atices even though the chaiges had not been withdrawn might indicate at first blush that the Respondents had receded from their former position How- ever, when the meeting was held, the Respondents did little more than reiterate 2T Inft Trucks, Inc, 75 NLRB 998, 999, Shawnee Milling Company, d/b/a Pauls Valley Milling Company, 82 NLRB 1266. 1271, enforcement denied on other grounds, 184 F. 2d 57 (C A. 10) , The Belden Brick Co , 83 NLRB 465-6, Sussex Hats, Inc., 85 NLRB 399; Vulcan Forging Company, 85 NLRB 621, 622; West Fork Cut Glass Company, 90 NLRB 944. United States Gypsum Company, 90 NLRB 964, and Jersey City Welding & Machine Works, Inc, 92 NLRB 510 28 On the subject of delay, the Board has made the following pertinent observation : "In labor relations, a delay in commencing collective bargaining entails more than mere postponement of an ordinary business transaction, for the passage of time itself, while employees grow disaffected and impatient at their designated bargaining agent's failure to report progress, weakens the unity and economic power of the group, and impairs the Union's ability to secure a beneficial contract The Act, which was designed to equalize bargaining power between employees and employers, does not permit an employer to secure, even unintentionally, a dominant position at the bargaining table by means of unreasonable delay " Burgie Vinegar Company. 71 NLRB 829, 830. zs N L R B. v. The Bum ke Machine Tool Company, 133 F 2d 618 (C. A. 6). '10 Hartsell Mills Company v N L R B , 111 F 2d 291, 292 (C A 4), rehearing denied May 24, 1940; N L R. B. v H G. Hill Stores, Inc, 140 F. 2d 924, 926 (C. A. 5) ; The American Laundry Machincry Company, 76 NLRB 981, 983, enforced 174 F. 2d 124 (C A 6) ; Shawnee Milling Company, d/b/a Pants Valley Milling Company, supra , and Sussex Hats, Inc, supra See also Standard Generator Sertiee Company of Missouri, Inc., 90 NLRB 790. 900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their former demand that the charges be withdrawn before bargaining could be resumed, and finally broke off negotiations d. The Respondents' demand that the Ainericait Fedcration of Labor become a party to the conti act From the first bargaining meeting on February 1, the Respondents insisted that the American Federation of Labor be a party to the contract, before the Respondent would enter into such a contract. There followed some correspond- ence between the Respondents, the Union, and the American Federation of Labor, the gist of the American Federation of Labor's telegram being that it could not agree to any such arrangement In the face of the American Federa- tion of Labor's refusal to go along-a position over which the Union, as a local affiliate, had no control-the Respondents persisted in their position. Indeed, the joinder of the American Federation of Labor was one of the major issues remaining unsettled when negotiations were broken off on August 23 It was the Union, not the American Federation of Labor, which the employees had chosen as their bargaining agent, and which therefore, under Section 9 (a) of the Act, had been established as their exclusive representative for the purposes of collective bargaining with the Respondents. By persisting in their demand that the American Federation of Labor be made a party to the agreement, the Respondents' not only needlessly delayed the consummation of an agreement, but actually sought to impose upon their employees a baigainiug i epi esentative other than the one selected by them and certified by the Board. Such conduct was indicative of the Respondents' bad faith.31 The Respondents' request for a performance bond The Respondents' counterproposal, submitted to the Union on April 22, con- tained a demand that the Union post a performance bond in the sum of $50,000. Although the parties had then been bargaining for several months, the matter of a performance bond had not previously been mentioned during the nego- tiations. This requirement, to which the Union refused to agree, was insisted upon by the Respondents' representatives as a condition precedent to entering into any contract with the Union. The question of the performance bond was one of the remaining undetermined issues between the parties when negotia- tions were broken off on August 23. Even now, according to Toothaker's and Taormina's testimony, the Respondents, before entering into any contract with the Union, would demand a sizable performance bond or some other satisfactory guarantee that the Union would fulfill its contract obligations. The question is whether this demand for a performance bond was consistent with the Re- spondents' obligation to bargain collectively under Section 8 (a) (1) and (5) of the Act. I am of the opinion that it was not. The Board has consistently held that, by demanding that a Union post a performance bond, an employer "sought to prefix the fulfillment of its statutory obligation with a condition not within the provisions, and manifestly inconsistent with the policy of the Act." 32 The 81 Standard Generator Service Company of Missouri, Inc, supra. Compare N. L. R. B v. Harris-Woodson Co, Inc, 179 F. 2d 720 (C A. 4) » Jasper Blackburn Products Corporation, 21 NLRB 1240, 1254 ; Scripto Manufacturing Company, 36 NLRB 411, 427: Interstate Steamship Company, et al, 36 NLRB 1307, 1319-20; Benson Produce Company, 71 NLRB 888, 899; Cooketille Shirt Company, et at , 79 NLRB 667, 689, Amory Garment Company, Inc, 80 NLRB 182, 194, enforced 24 LRRM 2274 (C. A 5) ; Brown and Root, Inc, et at, 86 NLRB 520, 521, and Standard Generator Service Company of Missouri, Inc, supra As the Respondents were adamant in insisting on a performance bond as a condition precedent to entering into a contract, Union Manu- facturing Company, 76 NLRB 322, is not applicable to the facts of this case TAORMINA COMPANY 901 same rule has been applied in the converse situation, where the demand for a performance bond was made by a Union rather than by an employer 33 It is true that the Respondents' insistence upon a bond, in the circumstances of this case, was not wholly unreasonable 84 and that it was not, so far as the record shows, designed to frustrate collective bargaining. Indeed, Toothaker testified credibly that the sum of $50,000 was demanded as a matter of "horse trading," and that he "never dreamed" that the Union's representatives would agree to so high an amount. However, the Respondents' good faith in advancing this proposal is not decisive of the issue. It is the tendency of such proposals to "delay or impede or otherwise to circumscribe the bargaining process" which renders them improper 8' I am not unmindful that, during the later stages of the negotiations, the Re- spondents indicated their willingness to abandon their demand for a perfoi mance bond if the American Federation of Labor were joined as a party to the con- tract. However, the condition on which the Respondents were willing to re- linquish their insistence upon a performance bond was, in itself, a demand which has been found to have been inconsistent with the Respondents' statutory duty to bargain with the Union. I. Smith's `Better Labor Relateoi+s Program" The General Counsel maintains that Smith 's "Better Labor Relations Pro- gram," submitted to the Union on May 5, if agreed to by the Union , would have effectively blocked the Union's entire campaign to organize the cannery workers in the area. It is therefore urged that this conduct on the part of Smith con- stituted a refusal to bargain with the Union in good faith . As Smith was not named as a party respondent herein, the validity of the General Counsel's contention depends, in the first instance, upon the relationship between Smith and the Respondents . The General Counsel maintains that Smith was the agent of the Respondents , within the meaning of Section 2 ( 13) of the Act. This con- tention is based upon Smith 's alleged apparent authority 36 Conversely, the Respondents maintain that Smith was not the agent of the Respondents, but acted at all times solely as the agent of the Association. In determining whether or not Smith was the Respondents ' agent, certain facts must be evaluated . Thus, when Smith attended his first negotiation meeting on February 7, he was introduced to the Union 's representatives as the Associa- tion's executive secretary , sitting as "an interested observer." Also, on Feb- ruary 20, DeBaca telephoned to Toothaker , requesting that a meeting be set. Toothaker replied that Smith was out of town and .that he would like to have Smith present at negotiations . On Toothaker 's request, the meeting was there- 33 International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, Local 294, A F of L. (Conivay's Express), 87 NLRB 972 34 The Respondents handled perishable merchandise. Moreover, their monthly sales dur- ing the year immediately preceding the hearing averaged approximately $62,500, an amount in excess of the face value of the performance bond demanded by the Respondents. 35 International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, Local 294, A. F. of L (Conivay's Express ), Supra. In Inland Steel Company, 9 NLRB 783 , 802, set aside and remanded on other grounds , 109 F. 2d 9 ( C. A 7), the Board said : "An employer is not privileged to deny collective bargaining to his employees merely because he views the union which represents them as irresponsible ; and the alleged irresponsibility is likewise irrelevant in determining whether the respondent was under an obligation to embody understandings in a signed agreement." 3e The Supreme Court of Minnesota has defined apparent authority as "that which, though not actually granted , the principal knowingly permits the agent to exercise, or which he holds him out as possessing " Dispatch Printing Co v National Bank of Commerce, 109 Minn . 440, 124 N. W 236, 240 ( Minn. 1910). 902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fore postponed Again, on May 26, Toothaker in a letter to DeBaca asked that a meeting requested for May 27 be postponed, because Smith was out of town. DeBaca replied on May 27 or 28, stating: "It was my understanding that Mr. Smith did not have the authority to bargain collectively in behalf of the Taos mina Canning Co However, if he does, we will be glad to meet with him and yourself or some person who has full authority to bargain collectively in behalf of this company." Toothaker's answer, dated May 29, merely states : "You may contact us at some date convenient to you about the middle of next week, and we will attempt to get the necessary parties together for the purpose of continuing our negotiations " Certainly, the Respondents did nothing which could be construed as holding Smith out as possessing authority to act in their behalf Indeed, their intro- duction of Smith to the Union's representatives on February 7 clearly negated any inference that Smith was acting in their behalf. Moreover, DeBaca's letter to Toothaker of May 27 or 28, quoted above, shows that DeBaca understood that Smith did not possess authority to bargain collectively in behalf of the Respond- ents. Nothing in Toothaker's reply to DeBaca indicated otherwise. Further- more, the mere fact that Toothaker requested postponements because of Smith's unavailability is not significant, standing alone , as it may reasonably be con- strued as a gesture of courtesy to a person both parties had agreed could attend. Under all the circumstances , I find that the General Counsel has failed to prove that Smith was the agent of the Respondents within the meaning of Section 2 (12) of the Act. It follows that the Respondents cannot be held responsible for his acts. g. The exclusion of Apodaca It will be recalled that, at the beginning of the session of February 7, Tooth- aker requested that Apodaca be excluded from the negotiations because he was neither an employee of the Respondents nor a union officer. This request was complied with. However, the record is undisputed that Apodaca had been selected by the Union to represent it during negotiations. Therefore, Toothaker's act in requesting that Apodaca be withdrawn resulted in depriving the Union of one of its chosen representatives. The Board has held that it is contrary to the policy of the Act for an employer to limit the class or group from among whom the employees may be represented for the purposes of collective bargaining. Section 8 (a) (1) of the Act enjoins the Employer from interfering with the right of employees to full freedom of choice in the selection of representatives for the purposes of collective bargaining. The unhampered exercise of this right is a prerequisite to true and effective collective bargaining. To permit an employer to place a limitation upon the employees' choice of representatives would deprive them of this right to choose their representatives freely 37 The Respondents' request on February 7 to exclude Apodaca from the bargaining negotiations on the ground that he was neither an employee nor an official of the Union falls within the principle thus stated. h. Additional indre+a of the Respondents' lack of good faith Toothaker's remarks on May 30 to DeBaca, Turner and E'Dalgo, quoted above, indicated clearly the futility of further attempts by the Union to secure a written 87 New Era Die Company, 19 NLRB 227 , 241, enforced as modified , 118 F. 2d 500 (C. A. 3) ; and The Oliver Corporation, 74 NLRB 483 , 486. The fact that the Union acquiesced in removing Apodaca from negotiating does not change this result. See N. L. R. B. v. The Blanton Company , 121 F 2d 564 , 571 (C A 8 ) ; and The Hancock Brick h Tile Company, 44 NLRB 920, 932 TAORMINA COMPANY 903 agreement and the difficulty the Union might be expected to encounter in enforc- ing any such agreement, if one were obtained. At the time these statements were uttered, their import was underscored by the fact that the parties had been bai gaining for a period of many months without reaching substantial agree- ment Under the circumstances, it is evident that the Respondent possessed a mind "hermetically sealed" against acceptance of the principle of collective bargaining in good faith.38 Other incidents hearing on the Respondents' lack of good faith occurred during the negotiations For example. on May 2, Toothaker and Taormina suggested that all negotiations be withheld temporarily on the specious excuse that the new minimum wage law had made it difficult for the canners to determine their future labor costs.' Again, on February 7, Toothaker named 4 specific job classifications as the only classifications in the Respondents' plant. It appears, however, that a fifth classification (peelers) existed, but that this fact was never brought to the attention of the Union's representatives, although there had been a thorough discussion of classiflea tions.40 Moreover, the parties had discussed the duration of the contract prior to April 22 and were only 4 to 6 months apart in their respective positions. However, when the Respondents submitted their written counterproposal on April 22, they receded from their prior position and demanded a contract of 5 years' duration, thus placing the parties considerably farther apart than they had been previously 44 Finally, when the parties met on August 23, only 4 major issues remained which had not been agreed upon, yet the Respondents virtually refused to discuss these issues, insisting first that the pending unfair labor practice charges be withdrawn. Had these incidents (the Respondents' suggestion that negotiations be delayed, the failure to mention "peelers," and the change of position on termination date) stood alone, I would have hesitated to interpret them unfavorably to the Respond- ents. However, they cannot be viewed separately from the events of which they formed a part. In view of other abundant and substantial evidence of the Respondents' failure to bargain with the Union, I consider these incidents as additional evidence of the lack of good faith on the part of the Respondents. 88 Great Southern Trucking Company v. N. L R B , 127 F. 2d 180, 185 (C A. 4), certiorari denied 317 U. S 652. 3' See Adler Metal Products Corp, 79 NLRB 219, 227 As previously stated, the amend- ments to the minimum wage law had been passed on October 26, 1949, and had become effective January 25, 1950 Therefore, by May 2, 1950, the Respondents had had 3 months' advance warning plus an additional 3 months of operating under the new law Further- more, wages had been tentatively agreed upon by the parties prior to May 2 Finally, the record does not satisfactorily explain why the increase from 40 cents to 75 cents per hour created any unusual problem in computing costs 41 The manner in which the existence of "peelers" came to light is revealing On cross- examination , Taormina had been questioned concerning the alleged difficulty in determining labor costs arising from the new statutory minimum wage During redirect examination, in an apparent attempt to counteract the effect of this cross-examination, Taormina was asked by the Respondents' attorney if the Respondents had any employees who were paid on a piecework basis He replied that "peelers" were paid in this fashion. In short, it appears that Taormina mentioned "peelers" only when it was to his advantage to do so. In this connection, it should be recalled that classification was one of the major issues still unsettled when negotiations were broken off on August 23. 4' While a change of position which amounts in effect to a concession might indicate a sincere desire to reach agreement , a sudden and unexplained shift which results in placing the parties farther apart may be evidence of bad faith. Compare J. W. Woodruff, Sr., d/b/a Atlanta Broadcasting Company, 90 NLRB 808. Toothaker's explanation for this change was that it was inserted as a matter of "horse trading," knowing that the Union would not go that far. It should also be recalled in this connection that the contract's duration was one of the major issues remaining unsettled when negotiations ended 904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I. Concluding findings An employer is under a statutory duty to bargain collectively in good faith with representatives of his employees. As the Respondents' brief points out, the manner and extent of negotiations necessary to satisfy the good-faith require- ments will vary in most instances, and conferences and protracted negotiations will not alone satisfy the employer's obligations. Good faith requires an open mind, and a sincere purpose to reach an agreement, but it does not require that any particular form of agreement be reached. As aptly put by the ,United States Court of Appeals for the Fifth Circuit: "Though there be surface bargaining, yet if in reality there is a purpose to defeat it, and wilful obstruction of it, there is a refusal really to bargain." 42 It is this yardstick which will be applied to the facts discussed above. No useful purpose would be served by'making separate findings that specific conduct of the Respondents violated Section 8 (a) (1) and (5) of the Act. Rather, I am convinced and find that the Respondents' conduct in its totality evidenced their bad faith in their bargaining negotiations with the Union, includ- ing their demand on June 8, 1950, that the Union prove its majority; their insistence on and after August 8, 1950, that the pending unfair labor practice charges be disposed of before negotiations could be resumed ; their demand on and after February 1, 1950, that the American Federation of Labor become a party to the contract ; their exclusion of Apodaca from the meeting of February 7; and the statements of Toothaker to DeBaca, Turner, and E'Dalgo on May 30, 1950. The Respondents cannot avoid the consequences of their illegal conduct by pointing to the Union 's failure to submit for their signature additional written agreements containing those matters on which they had agreed .41 Under all the circumstances, it is found that, on February 1, 1950. and at all times since, the Respondents have refused, and still continue to refuse, to bargain collectively with the Union as the exclusive representative of the employees in the unit de- scribed above, in violation of Section 8 (a) (5) of the Act. It is further found that, by the said acts, the Respondents have interfered with, restrained, and coerced their employees in the exercise of rights guaranteed in Section 7 of the Act, in violation of Section 8 (a) (1) of the Act.44 - IV. THE EFFECT OF TIIE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in Section III above, occurring in connection with the operations of the Respondents described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to- labor, disputes burdeiiing and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondents have engaged in unfair labor practices, I will recommend that they cease and desist therefrom and take certain affirma- tive action to effectuate the policies of the Act. 43 N. L. R. B v. Whittier Mills Company, et al, 111 F. 2d 474, 478 (C. A. 5). 43 Compare West Boylston Manufactursnq Company of Alabama , 87 NLRB 808 44 The complaint alleges that the Respondents refused to bargain collectively "on or about May 1, 1950 , and at all times thereafter " However, as the issue of the Respondents' demand that the American Federation of Labor be joined as a party to the contract was fully litigated at the hearing , and as that demand was first expressed by the Respondents on February 1, 1950 , I am convinced that the Respondents ' refusal to bargain began at that time See footnote 19 of the Intermediate Report in Benson Produce Company, supra HAMMOND BAG & PAPER COMPANY 905 It has been found that the Respondents have refused to bargain collectively with the Union, thereby interfering with, restraining, and coercing their em- ployees. It will therefore be recommended that the Respondents cease and desist therefrom, and that they bargain collectively with the Union with respect to wages, hours, and other terms and conditions of employment, and embody any understanding reached in a signed contract. Upon the basis of the foregoing findings of fact, and upon the entire record in the case I make the following : CONCLUSIONS OF LAW 1. Citrus, Cannery Workers and Food Processors Union 24473, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. 2. All production and maintenance employees of the Respondents' Donna, Texas, plant, excluding office and clerical employees, professional employees, guards, watchmen, and all supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. Citrus, Cannery Workers and Food Processors Union 24473, AFL,' was, on August 9, 1949, and at all times since has been, the exclusive representative within the meaning of Section 9 (a) of the Act of all employees in the aforesaid unit for the purposes of collective bargaining. 4. By refusing to bargain collectively with Citrus, Cannery Workers and Food Processors Union 24473, AFL, as the exclusive bargaining representative of the employees in the appropriate unit, the Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 5. By said acts the Respondents have interfered with, restrained, and coerced their employees in the exercise of rights guaranteed in Section 7 of the Act, thereby engaging in unfair labor practices within, the meaning of Section 8 (a) (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommended Order omitted from publication in this volume.] HAMMOND BAG & PAPER COMPANY 1 and FRANCIS RENO HARTZELL, PETITIONER and EMPLOYEES' SECURITY LEAGUE. Case No. 6RD-55. May 29,1951 Decision and Order Upon a petition for decertification duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Emil E. Narick, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Houston, Murdock, and Styles]. 1 The name of the Employer appears as amended at the hearing. 94 NLRB No. 147.