Shannon & Simpson Casket Co.

430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD activity less than half of his working time and spends 13 percent of his total working time making local trips, an assignment also per- formed by the packer-checker, but not by the other employees classified as truck drivers. However, we are unable to agree with the disposition recommended by the Regional Director. Apart from other considera- tions, as Lewis is classified as a truck driver, the category embraced by the unit, and spends a substantial part of his time working as a truck driver, we find that to the extent that Lewis is engaged in truck driving work he is entitled to representation as part of the truck drivers' unit heretofore found appropriate 5 and that he has a suf- ficient interest in the terms and conditions of employment within that unit to vote in. the election.6 Contrary to the Regional Director's recommendation, therefore, we shall overrule the challenge to Lewis' ballot and order it to be opened and counted. IT IS HEREBY ORDERED that the challenges to the ballots of Oscar Peterson and Robert A. Lewis be, and they hereby are, overruled. IT IS HEREBY DIRECTED that as part of the investigation to ascertain representatives for the purposes of collective bargaining with Burn- ham Corporation, at its Irvington, New York, plant, among the em- ployees in the unit set forth in the paragraph numbered 4 of the Decision and Direction of Election issued by the Board on February 8, 1952, the Regional Director for the Region in which this case was heard shall, pursuant to National Labor Relations Board Rules and Regulations within ten (10) days from the date of this Direction, open and count the ballots of Oscar Peterson and Robert A. Lewis, together with the ballot of Steve Robertine, and thereafter prepare and cause to be served upon the parties a revised tally of ballots, including therein the count of the afore-mentioned ballots. 6 Cf. Foremost Dairies, Inc., 98 NLRB No. 38; Foreman t Clark, Inc., 98 NLRB 530; Falstaff Distributing Co., 97 NLRB 997. o The Ocala Star Banner, 97 NLRB 449. EDWARD SHANNON, C. W. SHANNON, AND ARTHUR F. SIMPSON, JR., A PARTNERSHIP D/B/A SHANNON & SIMPSON CASKET COMPANY and UPHOLSTERERS' INTERNATIONAL UNION OF NORTH AMERICA, LOCAL #15. Case No. 21-CA-916. June 2, 1952 Decision and Order On September 21, 1951, Trial Examiner Maurice M. Miller issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unf air labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the 99 NLRB No. 62. SHANNON & SIMPSON CASKET COMPANY 431 copy of the Intermediate Report attached hereto. Thereafter, the Respondent and the General Counsel filed exceptions to the Interme- diate Report, and the Respondent filed a brief in support of the exceptions. Pursuant to the provision of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Murdock and Peterson]. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, only insofar as they are consistent with our findings, con- clusions, and order herein set forth. In his Intermediate Report, the Trial Examiner has described in considerable detail the testimony of the, various witnesses and made numerous findings with respect to the course of events in the bar- gaining negotiations which took place between the Respondent and the Union. These events may be briefly summarized as follows : Following a consent election, the Union was certified on February 17, 1950, as the exclusive bargaining representative of employees in an appropriate unit. Thereafter, during the period from February -21, 1950, to March 15, 1950, three bargaining conferences took place between C. W. Shannon, one of the Respondent's partners, and Harry Smulyan, the Union's business representative. Although substantial progress was made during these conferences toward reaching an agreement, the parties failed to agree on the method of distributing the cost of a disability insurance plan between the Respondent and its employees. However, Smulyan mistakenly believed that the parties had agreed that the Employer would bear the total cost of the plan. At various times during the latter part of March, Smulyan called Shannon and urged Shannon to sign the contract on which he believed they had agreed. Shannon refused to sign the contract. During the first week of April 1950, Shannon retained James W. Duberg as counsel, and the Respondent was thereafter represented in bargaining negotiations by Duberg, or his assistant, Robert Falken- borg. During the April and May negotiations the Respondent's em- ployees went out on strike on two occasions. The first strike was settled by a tentative agreement that the Respondent would grant its employees a wage increase of 5 cents an hour, in lieu of the in- surance :benefits sought by. the Union. However, no final agreement was reached on the matter in which the wage increase would be paid. The second strike was terminated on May 3, even though no agree- 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment had been reached on the disputed matters then under negotia- tions. No further bargaining conferences were held until early in Sep- tember 1950, when Smulyan visited at Respondent's office. In the meantime, the Respondent on August 5, 1950, unilaterally and without notice to the Union, granted a general 5-cent an hour increase to its employees. This wage increase was granted for the asserted purpose of reducing employee turnover by meeting conditions of the rising labor market and was unrelated to the Respondent 's earlier promise to grant a wage increase in lieu of insurance benefits. Following Smulyan's visit with Shannon at the Respondent's office in early Sep- tember, three bargaining conferences took place, on September 18, October 5, and December 8, 1950. At the October 5 conference, the Respondent submitted a proposal which, for the first time, included a disability insurance plan differing from the one originally proposed by the Union. It appears that at sometime prior to this conference and after the rejection of its insurance plan, the Union had abandoned the idea of including an insurance plan in the contract. On October 1011950, Smulyan informed both Shannon and Duberg that the Union was willing to accept the proposed contract without the insurance plan. The Respondent refused to eliminate the insurance plan from the contract, and stated that the Union's response amounted to a re- jection of the Respondent's offer and that, therefore, there was no proposal of the Respondent on the bargaining table. On October 12, the Respondent announced that it was putting into effect the dis- ability insurance program rejected by the Union as well as the wage schedule set forth in its proposal . On December 8, 1950, a final bar- gaining conference was held , but no agreement was reached. Although we agree with the Trial Examiner's conclusion that the Respondent failed or refused, on May 2 , 1950, and thereafter, to bar- gain collectively in good faith with the Union, we base our conclusion on the following incidents only, on which the material testimony of the various witnesses is in substantial agreement. 1. The Trial Examiner found, and we agree, that the unilateral wage increase granted by the Respondent to its employees on August 5, 1950, was per se a violation of Section 8 (a) (5) of the Act., The wage increase of August 5, 1950, was announced and put into effect without prior notice to or negotiations with the Union. Shannon ad- mitted that the wage increase was not related to the Respondent's earlier promise to grant its employees a 5-cent an hour wage increase in lieu of insurance, but that it was based, upon an appraisal of the then current economic conditions . The Respondent seeks to justify this unilateral action upon the ground that the Respondent was justified in believing that the Union had abandoned its interest in the Respond- ent's employees. The Respondent contends that Smulyan did not con- SHANNON & SIIVIPSON CASKET COMPANY 433 tact Shannon during the period from May 25 until early September, thereby manifesting a loss of interest in representation of the Re- spondent's employees.' The Trial Examiner found, however, that Smulyan conferred on other matters with Shannon in mid-June and mid-July prior to the announcement of the unilateral wage increase, and that Shannon had requested Smulyan to put off further nego- tiations until the Respondent had completed a changeover of its op- erations.2 The Trial Examiner based this finding on his resolution of the conflicting testimony given by the witnesses at the hearing. The Board will not overrule the credibility findings of a Trial Ex- aminer unless convinced by a preponderence of all the relevant evi- dence that he was incorrect 3 No such conclusion is warranted in this case. However, assuming, arguendo, that Smulyan did not contact Shan- non after May 25, we do not believe that the Respondent was justified in believing that its employees had lost interest in the Union or that the Union had lost interest in representing the employees. The Union had been certified on February 17 and less than 6 months had elapsed since certification at the time the Respondent unilaterally increased its general wage schedule. The changes which had occurred during that time in the Respondent's operations were not sufficient to over- come the presumption of the Union's representative status during the first year of its certification.4 Nor was the short lapse of time from the last conference between Shannon and Smulyan sufficient to jus- 1 The Respondent also seeks to justify its action upon the ground that Smulyan's repeated requests that Shannon replace Duberg as bargaining representative and sign the contract on which Smulyan believed the parties had agreed constituted a refusal to bargain on the part of the Union. However, the record fails to establish that Smulyan ever refused to confer with Duberg or that the Union at any time attempted to coerce the Respondent in its choice of a bargaining representative . Mere criticism of the other party's selection of a negotiator under circumstances such as those in this case does not constitute a refusal to bargain . Cf Harcourt and Company, Inc, 98 NLRB 892; The Elioell-Parker Company, 75 NLRB 1046, 1057-1058. Nor does it appear that Smulyan ever insisted upon Shannon's execution of the contract, on which he believed they had agreed, to the point where he refused to deal further with Duberg. In any event, Smulyan's apparent aversion to Duberg and his failure to call upon Duberg during the summer months does not justify the Respondent 's failure to notify and bargain with the Union over its newly planned wage increase. Nor do we find merit in other contentions of the Respondent that the Union failed to bargain in good faith. Indeed, we are satisfied that nothing done by the Union during negotiations prevented the Respondent's good faith from being tested. Elgin Standard Brick Manufacturing Company, 90 NLRB 1467 ; The Andrew Jergens Company, 76 NLRB 363, enfd. 175 F. 2d 130 (C. A. 9), cert. denied 338 U. S. 827. 2 The Respondent attacks these findings by pointing out that the Respondent had com- pleted the last of its finished caskets by the end of June and argues that, the changeover then being completed, there was no need for further delay of negotiations. We note however that after eliminating its upholstery department in June the Respondent had only 13 of its former complement of 23 employees left, but that by September Respondent again had 20 employees . The obvious inference is that the Respondent had not made all of the adjustments resulting from the changeover by the end of June. 1 Colonial Shirt Corporation, 96 NLRB 711. 4Jersey City Welding ct Machine Works, Inc., 92 NLRB 510; West Fork Cut Glass Com- pany, 90 NLRB 944, enfd. 188 F. 2d 474 (C. A. 4,) ; Uivited States Gypsum Company, 90 NLRB 964. 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tify the Respondent's failure to confer and negotiate with the Union over this new and previously unmentioned wage increase.-, Accord- ingly we find that the Respondent's unilateral wage increase of August 5, 1950, was instituted without regard for its duty to bargain collectively with the Union; that such action necessarily had the ef- fect of undermining the representative status and prestige of the bar- gaining representative; and that the Respondent thereby violated Section 8 (a) (5) of the Act. 2. The Trial Examiner found that the Respondent's entire course of conduct indicated an unwillingness to bargain in good faith. We agree. We base our conclusions on: (1) The unilateral wage increase, discussed above; (2) the Respondent's conduct at the May 2 confer- ence; (3) its position on October 10 and thereafter that there was nothing on the table to discuss; and (4) its announcement on October 12 with respect to wage increases. The May 2 conference was held at the request of the Union before a Commissioner of Conciliation at a time when the employees were out on strike. As described by the Trial Examiner, the Respondent was represented, during the morning session by Robert Falkenborg, who was Duberg's assistant. The Union was represented by Smul- yan, David Sokel, the Union's attorney, and possibly the union com- mittee. Duberg had sent Falkenborg to the conference with instruc- tions to use a previous proposal of the Respondent as a basis for nego- tiation. In response to a demand for assurance as to his authority, Falkenborg signed a statement that he had the authority to negotiate and sign a contract for the Respondent. The parties then proceeded to consider the last proposals of the Union and the Respondent. As found by the Trial Examiner, Falkenborg initialed some of the sec- tions discussed, to indicate their acceptability to the Respondent and the parties' agreement thereon. Duberg arrived at the conference in time for the afternoon session, and represented the Respondent in the negotiations which followed his arrival. In our opinion, the bargaining technique employed by Duberg failed to measure up to the good faith standards imposed by the Act. Despite the circumstances under which the parties met, Duberg attempted to convert the conference into nothing more than an attempt to obtain a clarification of the Union's proposal. He studiously avoided the possibility of reaching agreement on any clauses by repudiating the agreements made by Falkenborg, by failing to voice timely objections to certain clauses, by refusing to make any tentative agreements, and by insisting that the Union restate its proposal in a completely inte- grated document as a condition of his consideration of the proposals. I. B. S. Manufacturing Company, 96 NLRB 1263 ; Dealer's Engine Rebuilders, Inc., 95 NLRB 1009; Crow Burlingame Company, 94 NLRB 997. SHANNON & SIMPSON CASKET COMPANY 435 In effect, he refused to follow an orderly procedure so that certain areas of disagreement could have been eliminated, at least tentatively, but instead broadened the areas of uncertainty and disagreement. In our opinion, Duberg's promotion of such confusion and uncertainty in negotiations was incompatible with a good faith endeavor to reach agreement.' Also-strongly indicative of bad faith bargaining was the Respond- ent's position with respect to the status of negotiations on and after, October 10th. As stated above, by that time the Union had accepted all terms of the Respondent's proposals, except that relating to the, insurance plan. Thus, after months of bargaining and industrial un- rest, the issue had been narrowed to one specific item-the deletion or inclusion of the insurance provision which had been so gratuitously proposed by the Respondent on October 5. Unlike the Trial Examiner, we do not find a refusal to bargain because of the Respondent's re- fusal to capitulate on this point, for there may well have been valid economic considerations for the inclusion of that provision by the Respondent. However, we are completely satisfied and find that the Respondent foreclosed the possibility of reaching an agreement by refusing to confine further negotiations to the one disputed issue and, by virtually withdrawing all its proposals therefore accepted by the Union as a basis for concluding an agreement. As fully set forth in the Intermediate Report, Duberg on three separate occasions un- equivocally stated that because the Union had not accepted the Respondent's entire proposal, "there is no offer or proposal of the company on the table at this time and hence nothing to accept." The demoralizing and frustrating effect of the Respondent's requirement, at this final stage of negotiations, that 'they begin anew is readily apparent. It was particularly manifested at the last conference on December 8, when Duberg, after repeating that there was nothing on the table to discuss, summarily stated that unless there were some- thing new to talk about, he would leave the conference. To prevent this premature termination of the conference, and to comply with the Respondent's position of considering only complete proposals, Smul- yan hastily submitted for discussion a proposal properly characterized by the Trial Examiner as "stale." This procedure was regarded by Duberg as the logical response to his position, for he reviewed the draft at length and pronounced it unacceptable, without reoffering the pro- posal'which he in effect had withdrawn. 6 The Board has previously found evidence of bad faith in the repudiation of tentative agreements even though no contractual obligation was attached to such agreement. Standard Generator Service Co. of Mtssomi, Inc., 90 NLRB 790, enfd 186 F. 2d 800 ((!. A. 8); Franklin Hosiery Mills, Itte, 83 NLRB '276; Thomtlinson of High Point, Inc., 74 NLRB 681, 689; Benson Produce Company, 71 NLRB 888, 893, 898 ; of West Boylston Manufacturing Company of Alabama, 87 NLRB 808. 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Also significant in evaluating the Respondent's good faith at the bargaining table was its announcement on October 12 of the institu- tion of negotiated wage increases for grinders. As described more fully by the Trial Examiner, 2 or 3 days after the September 18 con- ference, Smulyan visited the Respondent's plant to check on the: wage rates then being paid. Smulyan and Shannon agreed upon a wage in- crease for grinders. However, following the Respondent's rejection of the Union's counterproposal of October 10, the Respondent wrote a letter to the Union, a copy of which was posted on the Respondent's bulletin board. This letter, in addition to announcing the institution of the insurance plan rejected by the Union, contained the following statement : Please be advised further that the Company put into effect the wage and department classification and schedules as set forth in its counter proposal rejected by the bargaining representative on 5 October 1950. Shannon admitted that the Respondent did not make any general wage increases effective at this time and that the above-quoted lan- guage referred only to the negotiated increases for grinders. How- ever, the language of the letter is such as to convey the impression that the Union had rejected the wage increase for grinders and hence that no credit was due the Union for the increase. Such action deprived the Union of its status and dignity as the exclusive bargaining repre- sentative and is indicative of bad faith bargaining on the part of the Respondent.' Apparently the Respondent seeks to justify certain of the above- described conduct by reliance on axioms of contract law. However, the rules by which it is determined whether or not the parties have made a contract are not the rules by which it is determined whether or not parties have bargained in good faith. Nor is the obligation to bargain so circumscribed by the technical rules of contract law. The obliga- tion under the Act contemplates that the parties come to the bargain- ing table with a fair and open mind and a sincere desire and purpose to conclude an agreement on mutually satisfactory terms." Reliance upon the rules of contract law so as to forestall and avoid agreement does not satisfy that obligation. While at times the Respondent went through the motions of bar- gaining, we are satisfied by the above-described conduct, viewed in the light of the entire record, that the Respondent was intent upon avoiding an agreement rather than reaching one. ° Cf. H. J. Heinz Company v. N. L. R. B., 311 U. S. 514. s Cf. N. L. R. B. v. Reed & Prince Mfg. Co., 118 F. 2d 874, 885 (C. A. 1) ; Cathey Lumber Company, 86 NLRB 157, 167. SHANNON & SIMPSON CASKET COMPANY 437 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 Respondent, Edward Shannon, C. W. Shannon, and Arthur F. Simpson, doing business as Shannon & Simpson Casket Company, their agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with the Upholserers' Inter- national Union of North America, Local #15, affiliated with the American Federation of Labor, as the exclusive representative of all of the production and maintenance employees at its Alhambra, Cali- fornia, plant, exclusive of office clerical employees, the working fore- men of the fabrication and assembly department, trimming room, and shipping and receiving department, respectively, and all other super- visors as defined in.the Act, with respect to labor disputes, grievances, rates of pay, wages, hours of work, disability insurance, or other con- ditions of employment. (b) Taking any unilateral action in derogation of the aforesaid Union's right to act as the exclusive representative of such employees, with respect to any matter properly subject to the collective bargain- ing process. (c) Interfering, in any other manner, with the efforts of the Union to bargain collectively with it, on behalf of the employees in the afore- said appropriate unit, as their exclusive bargaining agent. 2. Take the following affirmative action, which, we find, will effectu- ate the policies of the Act : (a) Upon request, bargaining collectively with the Upholsterers' International Union of North America, Local #15, affiliated with the American Federation of Labor as the exclusive representative of all its employees in the aforesaid bargaining unit, with respect to labor disputes, grievances, rates of pay, wages, hours of work, disability in- surance, or other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its establishment in Alhambra, California, copies of the notice attached to the Intermediate Report.9 Copies of the notice, to be furnished by the Regional Director of the Twenty-first Region, as the agent of the Board, should be posted by the Respondent immedi- ately upon their receipt, after being duly signed by a person duly 9 This notice, however, shall be, and it hereby is, amended by striking from line 3 thereof the words -The Recommendations of a Trial Examiner" and substituting in lieu thereof the words "A Decision and Order." In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." 215233-53-29 438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD qualified to act as its representative, and should be maintained by it for sixty (60) consecutive days thereafter in conspicuous places,,in- eluding all places where notices to employees are customarily posted. Reasonable steps should be taken by the Respondent to insure that these notices are not altered, defaced, or covered by any other material. (c) File with the Regional Director of the Twenty-first Region, as the agent of the Board, within ten (10) days from the date of service of this Decision and Order, a report in writing setting forth in de- tail the manner and form in which it has complied with this order. Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon a charge duly filed by the Upholsterers' International Union of North America, Local #15, affiliated with the American Federation of Labor, and designated herein as the Union, the General Counsel of the National Labor Rela- tions Board,' in the name of the Board, caused the Regional Director of its Twenty-first Region, at Los Angeles, California, to issue a complaint dated Feb- ruary 6, 1951, against Edward Shannon, C. W. Shannon, and Arthur F. Simpson, Jr., a partnership, doing business as Shannon & Simpson Casket Company' herein called the Respondent. The complaint alleges that the Respondent had engaged in and continues to engage 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, 49 Stat. 449, as amended and reenacted in the Labor Management Relations Act of 1947, 61 Stat. 136, designated herein as the Act. Copies of the charge, the complaint, and a notice of hearing were duly served upon the Respondent and the Union. With respect to the unfair labor practices, the complaint alleges, in substance: (1) That all of the Respondent's production and maintenance employees at its Alhambra, California, plant, exclusive of office clerical employees, the working foremen of the fabrication and assembly department, trimming room, and ship- ping and receiving department, respectively, and all other supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining; (2) that the Board, on February 17, 1950, had certified the Union, under Section 9 (a) of the Act, as entitled to at as the exclusive representative of the em- ployees in the above unit, for the purpose of collective bargaining in regard to their rates of pay, wages, hours of employment, and other conditions of work; (3) that the Respondent, on or about May 2, 1950, and thereafter, refused to bargain with the Union, upon request, as the exclusive representative of the employees in the above unit, in regard to their rates of pay, wages, hours of work, and other conditions of employment; and (4) that the Respondent, while involved in its refusal to bargain collectively with the Union, in derogation of that organiaztion's right to recognition as the exclusive bargaining representa- tive of the employees and its obligation to bargain, unilaterially, and in the absence of prior notice or consultation with the Union, granted employees within the unit a wage increase on or about August 1, 1950, and, in the absence of prior consultation with the Union, unilaterially instituted its own disability 1 The General Counsel and his representative in this case are designated herein as the General Counsel, and the National Labor Relations Board as the Board. The Respondent is thus described on the basis of a motion to amend the case caption of the complaint, in conformity with evidence received by stipulation as to the identity of the enterprise involved. SHANNON & SIMPSON CASKET COMPANY 439 Insurance program on or about October 12, 1950. This course of conduct on the part of, the Respondent, it is alleged, involved an unfair labor practice within` the meaning of Section 8 (a) (1) and (5) of the statute. Thereafter, the Respondent's answer was duly filed. It denied certain juris- dictional allegations of the complaint, admitted the status of the Union as a labor organization, and admitted-by its failure to plead-the propriety of the unit alleged to be appropriate for the purposes of collective bargaining at its. Alhambra, California, plant. The Respondent also admitted the certification of the Union as an organization entitled to act as the exclusive representative of `its employees within the unit declared to be appropriate, but denied, any refusal to bargain collectively with the organization and the allegations of the complaint with respect to its asserted unilaterial action in derogation of the Union's right to act as an exclusive representative. Affirmatively, the Respond- ent alleged that its business had changed substantially in 1950, since it had ceased to trim or upholster caskets or to finish them in any manner, and had also ceased to fabricate certain airplane parts; that the extent to which its business now affects commerce may properly be measured only in terms of its business activity since July 1 of last year; and that its business activity through- out 1950, or the latter half of that year, does not equal or exceed the minimum requirements now established by the Board as a guide to policy in connection with the assertion of its jurisdiction. As a second affirmative defense, the Respondent recapitulated the course of its negotiations with the Union and alleged, by way of conclusion, that .the Union-on two specific occasions, and throughout the negotiations-had refused to bargain collectively with the Respondent, upon request, by its refusal, on certain occasions, to meet and negotiate with the Respondent's representative. Thirdly, it asserted that the failure of the parties to meet and negotiate between May 3, 1950, and September 5, 1950, was without fault on the Respondent's part. As a fourth affirmative defense, the Respondent alleged that the Union had vacillated and shifted its position (luring the negotiations, and that an impasse had been reached on or about October 12, 1°.50, without any fault on the Respond- ent's part. By way of counterclaim, in conclusion, the Respondent asserted that the Union itself had been guilty of certain violations of the Act and unfair labor practices as defined in the statute. Pursuant to notice, a hearing was held at Los Angeles, California, between March 12 and 17, 1951, both dates inclusive, before me as a Trial Examiner duly designated. The General Counsel and the Respondent were represented by counsel, and the Union by a business representative. All of the parties par- ticipated in the case, and were afforded an opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence pertinent to the issues. At the outset of his presentation, the General Counsel moved that certain por- tions of the Respondent's answer be stricken ; the allegations challenged, in his view, raised no valid defense to the Respondent's alleged refusal to bargain. The motion to strike was granted in part and, in part, denied. Certain stipu- lations with respect to the business activities of the Respondent, and one of its principal customers, were then noted for the record ; the Respondent, however, moved to strike some of the data thus received as evidence by stipulation- specifically, certain information with respect to the amount of its purchases and sales in the first 6 months of 1950, and its total sales in that year to West Coast Casket Company, a manufacturer of caskets and the customer previously noted. The motion to strike, with respect to the Respondent' s business activity in the first half of 1950, was denied. A decision was reserved with respect to the Respondent's motion to strike the data offered and received by stipulation 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in regard to the Respondent's sales to the West Coast Casket Company ; for reasons to be made apparent elsewhere in this Report the motion to strike, in this connection, is also denied. West Coast Casket Company, previously served with a subpena ducea tecum calculated to elicit information from it with respect to its out-of-State sales and their relation to its total sales, then appeared specially with a timely peti- tion to revoke the subpena. Upon objection, the petition to revoke was denied.$ At the conclusion of the General Counsel's case, a motion to amend the case caption was granted, without objection. Thereafter, the Respondent moved for a dismissal of the complaint, on the basis of an alleged failure of proof. The motion was denied. At the close of the testimony, all counsel joined in a motion to conform the pleadings to the proof in certain immaterial matters ; the motion was granted. The General Counsel also moved to amend the complaint by the addition of an allegation that the Respondent had engaged in an unfair labor practice by its direct negotiation with certain employees on April 20, 1950, in derogation of the Union's right to act as their exclusive representative. The Respondent ob- jected. I reserved a decision on the motion; a study of the record has con- vinced me that the matter was sufficiently litigated to raise the issue and that the Respondent cannot now, with propriety, claim surprise. The motion is, therefore, granted ; my disposition of the issue presented for decision, as a result, appears elsewhere in this Report. At the close of the case, the Re- spondent renewed its motions to dismiss. The motions were denied. Counsel for the Respondent and the General Counsel's representative requested the right to file briefs. They have been received and considered. FINDINGS OF FACT Upon the entire record in the case, and from my observation of the witnesses, I make the following findings of fact : 1. THE BUSINESS OF THE RESPONDENT Edward Shannon, C. W. Shannon, and Arthur F. Simpson, Jr., a partnership, designated in this Report as the Respondent, does business as the Shannon & Simpson Casket Company. During the first 6 months of 1950, the Respondent engaged, at its Alhambra, California, plant, in the manufacture of finished metal caskets, transfer cases, and unfinished metal shells for caskets .4 Within this 6-month period, the Respondent's ont-of-State sales amounted to $25,210.51; sales of finished caskets accounted for $22,630.01 of this amount. Noy metal shells were shipped out of the State. Transfer cases, then, accounted for $2,580.50 of the out-of-State sales. Late in the first 6 months of 1950 the Respondent discontinued the manu- facture of finished caskets; during the second 6 months of that year it produced only metal shells and transfer cases. Within this period, its out-of-State sales produced $8,263.36 in income. Of this amount, $3,569.05 was received from West Coast Casket never did produce the records called for in the subpena;in response to a second subpena, however , its secretary-treasurer appeared to give testimony with respect to its business operations ; thereafter, the General Counsel's representative declared that be would make no effort to enforce compliance with the subpena previously noted. 4 The Respondent, in connection with an argument elsewhere noted in this, Report, described these products as follows : Its caskets were highly polished lacquer or paint fin- ished caskets, with handles and ornaments installed , and with a completely upholstered cloth lining and bedding Its metal shells are prime coated steel shells of formed sheet steel, in the shape of a metal casket , with a minimum amount of wood to which linings may be attached. Its transfer cases are metal boxes, used to transport human bodies. SHANNON & SIMPSON CASKET COMPANY 441 the sale of transfer cases and $4,946.30 was received for metal shells! No finished caskets were sold or shipped to customers outside of the State. The total sales of the Respondent in 1950 amounted to $281,114.94. Its total purchases for the period involved $110,018.52; of this amount, $28,042.32 was spent locally, and $81,976.20 was involved in purchases made outside of the State. A breakdown of the purchase figures reveals that materials purchased by the Respondent in the first 6 months of 1950 accounted for $42,071.60 of the figure previously quoted ; of this amount, only $12,523.52 represented local pur- chases, and $29,548.08 was spent for items purchased outside of the State. In the latter half of 1950, the Respondent's purchases amounted to $67,946.92; only $15,518.80 represented local purchases, and $52,428.12 was involved in direct out-of-State purchases. Of the latter amount, however, $24,695 27 was spent to purchase the entire inventory of the Dallas Coffin Company, at Dallas, Texas, in a liquidation sale. In 1950 the goods sold by the Respondent to West Coast Casket Company, a corporation doing business in Los Angeles, California, exceeded $50,000 in value. The Respondent's 1950 sales income also included income received within the last 6 months of the year from the Jumbo Steel Company, a corporation located in Azusa, California, for services involving fabrication operations on material furnished by that company and other material furnished by the Re- spondent, in the total amount of $3,530.80. Portions of this work were sub- contracted, in turn, by the Respondent to the Universal Metals Company of Alhambra, California, and Lite Steel Products of Glendale, in that State. The work done for Jumbo Steel by the Respondent, and its subcontractors, was identified for the Respondent by Jumbo Steel purchase orders which bore an indication of placement by the United States Air Force and the United States Corps of Engineers. It is inferable, and I find, that the Respondent, in con- nection with its work for Jumbo Steel, performed services directly and sub- stantially related to 'the national defense. There is no contention, in this case, that the Respondent's business activity to the first half of 1950, insofar as it involved sales made directly to out-of-State customers, was insufficient to warrant the assertion of agency jurisdiction 6 The Respondent argues instead, that the nature of its business was materially altered by the change in its line midway in 1950; it asserts, therefore, that its amenability to the sanctions of the Act should be determined solely on the basis of its business activity in the latter half of the year, as summarized in this Report. In substance, the Respondent argues that its direct sales outside of the State, in the first half of 1950, are now immaterial on the jurisdictional issue, and that its out-of-State sales in the second half of the last calendar year, were insufficient, in the light of the jurisdictional criteria recently announced by the Board, to warrant the exercise of the agency's statutory authority. In the absence of countervailing evidence, the record does establish that the Respondent's decision to discontinue the manufacture and sale of finished metal caskets was grounded in business considerations, that the Respondent was re- quired, as a result, to lay off a number of upholstery workers and to replace them with sheet metal workers ; that it was also required to dispose of its sewing equipment and secure additional equipment for sheet metal work ; and that the nature of its market was materially altered. Nevertheless, I find no merit in the Respondent's contention that its activity in the second half of 6 These figures, received in evidence by stipulation, reveal an obvious arithmetical error; I find it, however, to be immaterial. 6 Cf. Stamislaus Implement and Hardware Co., Ltd., 91 NLRB 618. 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1950 provides the only legitimate basis for a decision as to the appropriateness of agency action. There can be no doubt, upon the entire record, that the Respondent-throughout 1950-was engaged in commerce, or alternatively, in business activity which affected commerce. I so find. And the course of con- duct attributed to it, allegedly involving an unfair labor practice, was clearly initiated during a period in which the Respondent was engaged in such activity sufficiently to justify the assertion of the Board's jurisdiction under presently applicable standards.' The Respondent's decision to discontinue the manu- facture of a product sold primarily to funeral directors-many of them outside the State-and to limit itself to the manufacture of transfer cases and shells- sold, in the main, to "jobbers" within the State-cannot, in my opinion, be construed as such a substantial change in the Respondent's business as to 'render a consideration of its earlier business activities inappropriate, with respect to the question now at issue. I find, therefore, that a determination as to the propriety of asserting jurisdiction in this case may properly rest upon an evalua- tion of the Respondent's business activity in the last available full calendar year, considered as a whole, despite the change in its activity which occurred in that period;' and upon the entire record I find that the Respondent's business activity in 1950 involved and affected commerce to a degree sufficient to warrant the assertion of the Board's jurisdiction. The record, it should be noted also, reveals that the West Coast Casket Com- pany, a principal customer of the Respondent, sold between $40,000 and'$60,000 worth of its manufactured product outside of the State in 1949, and that its out-of-State sales in 1950 were "probably" greater. The sales of the Respondent to West Coast Casket Company in 1950 exceeded $50,000 in value. The assertion of statutory jurisdiction over the Respondent, therefore, would seem to be justi- fied, additionally, by its activity as a supplier of services or material "necessary to the operation" of another enterprise engaged in the production of goods destined for out-of-State shipment' And the Respondent's services as a sub- contractor of the Jumbo Steel Company, previously noted-all of which occurred in the second half of last year-provide even more justification for the conclusion Indicated, in view of the Board's announced determination to assert its jurisdic- tion over enterprises engaged in business activity which substantially affects the national defense." In the light of the entire record, and for each of the indicated reasons, I find-despite the Respondent's contrary contention-that the assertion of the Board's jurisdiction in this case is warranted to effectuate the objectives of the statute. II. THE ORGANIZATION INVOLVED The Upholsterers' International Union of North America, Local #15, affiliated with the American Federation of Labor, and designated in this Report as the Union, is a labor organization within the meaning of Section 2 (5) of the Act, which admits employees of the Respondent to membership. III. THE UNFAIR LABOR PRACTICES A. Preliminary statement Upon the entire record, and in the light of my observations at the hearing, 1 have concluded that all of the witnesses-the union representative, who testified Cf. Wyandotte Transportation Company, 25 NLRB 336, 339. 8 Cowell Portland Cement Company , 40 NLRB 652, 693-696. e Hollow Tree Lumber Company, 91 NLRB 635. i° Westport Moving and Storage Company, 91 NLRB 902. SHANNON & SIMPSON CASKET COMPANY 443 for the General Counsel , and the witnesses ' ivho testified on behalf of the Re- spondent-gave their testimony with sincerity and personal confidence in its truth. At no time could I detect, in the circumstances under which this testi- mony was given , or in their demeanor , any reliable indications of deliberate misstatement or misrepresentation . The record , however , does reveal a number of differences and conflict between the testimony of Union Business Representa- tive Smulyan and that offered by the Respondent 's witnesses. I can only c'n- elude that the conflicts are due to the faulty , or sincerely slanted, recollection of one witness or another . In resolving such conflicts , therefore, I have made every effort to reconcile the contradictory oral testimony given, and to achieve an evaluation of the situation based upon the objective evidence available- documentary evidence-and the inherent probabilities suggested by the record, considered as a whole . Except as necessary to a coherent recapitulation of the record , the conflicting testimony and the factors which influenced me in resolving particular conflicts will not be further detailed. The entire record, however, has been fully considered. With this preliminary statement , I turn to a con- sideration of the issues involved. B. The refusal to bargain 1. The appropriate unit and the Union's status as a majority representative The Respondent has conceded the propriety of the unit set forth in the com- plaint as appropriate for the purposes of a collective bargain. In the light of that concession, and upon the entire record, I find that all of the production and maintenance employees at the Respondent's Alhambra, California, plant, exclusive of office clerical employees, the working foremen of the fabrication and assembly department, trimming room, and shipping and receiving depart- ment, respectively, and all other supervisors as defined in the Act, constituted at all material times, and now constitute, a unit appropriate for the purpose of collective bargaining with the Respondent, within the meaning of Section 9 (b) of the Act as amended. On January 24, 1950, the Union filed a petition at the Board's Regional Office for certification as the exclusive representative of the Respondent's employees. Thereafter, on January 30, 1950, the Respondent and the Union executed a stip- ulation for certification upon consent election. The election was held on Feb- ruary 27, 1950. There were 26 eligible voters ; of this number, 13 voted in favor of representation by the Union, 10 voted against it, and 2 employees cast challenged ballots. On February 17, 1950, the Union was certified as the exclu- sive representative of the employees in the unit found appropriate for the pur- poses of a collective bargain. I find, in the light of this record and the admissions noted in the Respondent's answer, that the Union was, on February 17, 1950, and at all times since has been , the duly designated representative of a majority of the Respondent's employees in the unit described above as appropriate for the purposes of a collective bargain. Pursuant to Section 9 (a) of the Act, it has been at all material times, and is now, entitled to act as the exclusive representative of the employees in the aforesaid unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of work at the Respondent's Alhambra, plant. 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The negotiations a. Direct negotiations after the certification On Monday, February 20, 1950, Harry Smulyan, the Union's business manager, telephoned C. W. Shannon (Bill Shannon) and requested a conference to dis- cuss an agreement." It was held on the following day at the plant. Smulyan and several members of the shop committee attended for the Union ; Bill Shannon and Arthur F. Simpson, Jr., I find, received them. At the outset of the con- ference, however, Simpson declared his opposition to unions, stated that Shan- non would be entirely responsible for the negotiations, and left 12 Smulyan, I find-despite a conflict in the evidence on the point-brought a copy of the Union's "standard" contract to the conference, for discussion; the record in- dicates that it was a copy of an agreement recently negotiated between the Union and several other casket companies. It contained a wage schedule pre- viously accepted by one of them, the Hollywood Casket Company, Respondent's competitor. The conference lasted about 21/2 or 31/2 hours. In conformity with the testi- mony of the Union's business representative, I find that the provisions of the "standard" contract were a subject of discussion, section by section. With re- spect to the Union's wage proposal, Shannon pointed out, I find, that the Re- spondent operated under certain special conditions, and, in particular, that any schedule would have to include specific rates for certain types of metal work. Smulyan, on behalf of the Union, promised to check the rates approved by the organization for such work at other plants; Shannon, in turn, agreed to pre- pare a classified schedule of the rates currently paid by the Respondent, for discussion at a subsequent meeting. The negotiators agreed that Shannon would be authorized to set the date of that meeting after preparation of the classified wage schedule. The Union's proposed agreement, I find, included a provision for a "social security" or disability insurance program, to be financed entirely by the Re- spondent ; this proposal was discussed at some length.13 It was described as a program calculated to eliminate all need for the employees to contribute to the State's unemployment compensation and disability insurance fund. No con- clusion with respect to the proposal was reached, however. The record indi- cates only that Bill Shannon declared himself to be in favor of an arrangement 'under which responsibility for the payment of total premiums equal to 3 percent of the Respondent's payroll for a given period would be divided between it and its employees, with the partnership responsible for the payment of 2 percent n Shannon is the Respondent's general manager. 12 Smulyan, upon whose testimony this finding is based, also testified that Simpson said he would sell his interest in the business if he had to deal with unions. I find this portion of Smulyan's testimony, however, incredible. 13 Bill Shannon testified that the Union's "standard" agreement was not submitted to him at this first conference, and that, when he finally did see it, it did not contain the mimeographed page which set forth the Union's "social security" program. I have found, upon the entire record and in the light of the inherent probabilities, that the union representative did produce a proposed agreement at the first conference. The only copy of that document in evidence-one produced and identified by the Respondent- contains a mimeographed provision with respect to the Union's comprehensive insurance program. The circumstances under which it became a part of the document have not been sep- arately explained. I am. therefore, constrained to find that Shannon was, in fact; apprised formally of the Union's proposal. In the light of the entire record, however, I cannot characterize this conclusion as material ; Shannon admitted that Smulyan supplied him with a booklet explaining the Union's insurance program, which booklet, I find, set forth in substance the benefits provided by it, and the obligations which the Respondent would have to assume in order to make its employees eligible. SHANNON & SIMPSON CASKET COMPANY 445 and each employee responsible for the payment of a sum equivalent to 1 percent of his wages. At one point in the discussion, according to Smulyan, Shannon suggested that the Union confine itself to the collection of dues under a union-shop clause, and abandon any effort to negotiate an agreement. The testimony of the union representative in this connection, however, was categorically denied. It is possible to infer, in the light of the record, that Shannon may have referred to a previous experience with another union in terms which the union representa- tive construed to embody such a suggestion ; upon the entire record, however, I credit Shannon's denial that such a suggestion was made." The conference ended, as noted, with an understanding that Shannon would set the date for a continuation of negotiations. Pursuant to this understanding, the parties met for a second time on the 28th of February ; Smulyan was accompanied by several representatives of the shop committee, while Shannon, insofar as the record shows, was the Respondent's sole representative. He had a counterproposal and a classified wage schedule ready for discussion. The union representative, however, expressed the opin- ion that the counterproposal was incomplete ; Shannon conceded the point, and by mutual agreement the counterproposal was set aside. Thereafter, I find, the wage schedule proffered on behalf of the Respondent was extensively discussed.16 Smulyan protested that it would materially benefit very few of the Respond- ent's workers ; he was asked, however, to submit it to the shop employees. This was done.16 Shortly after his departure for the purpose, Smulyan returned with a set of penciled notations on the schedule, indicative of the rate increases desired by the men. Shannon, I find, made a counterproposal, which Smulyan again referred to the employees. He returned with another set of proposals on behalf of the men-to which Shannon finally agreed. Smulyan announced their agreement to the employees. The Union's "standard" contract was again a subject of discussion. Shan- non's testimony, credited in this connection, indicates that he suggested a num- ber of changes in the document and that he and Smulyan took appropriate notes. The latter, according to the Respondent's partner, offered to prepare a second union proposal embodying the changes desired by the Respondent which the organization found acceptable ; Smulyan, I find, promised to call for a third conference when this revised document was ready. On or about March 15, 1950, Shannon and Smulyan met for the third time; Shannon was presented with four copies of a draft agreement, supplemented with a wage schedule. The schedule embodied the rates agreed upon by the union representative and the Respondent's negotiator at their previous confer- ence. The draft agreement was offered for Shannon's signature. The sugges- tion that he do so was, however, rejected ; " Shannon contended that the draft '14 Smulyan also testified, however, that the Union's proposal with respect to a union- security clause, to be incorporated in the agreement and made effective after a Board UA election, met with Shannon's acquiescence. I so find. 's Smulyan testified that the Respondent merely proposed a set of individual wage in The record establishes, however, that a comprehensive schedule was presented. is Smulyan testified that the Respondent's wage proposals were presented to the em- ployees7 at a union meeting in mid-March, that most of the suggested rates were then approved, and that he was instructed to renegotiate on those not approved. I do not credit this version of the time element involved ; and inspection of the schedule used as a basis for negotiation will, in my opinion, support an inference that the wage schedule was settled in the course of the conference at which the Respondent first offered it for discussion. 11 Shannon testified that Smulyan's signature had already been affixed to the draft. Except for his testimony, the record is too unclear to support such a conclusion. At sometime before the conference ended, however, Smulyan, I find, did sign the draft. 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreement, in its totality, did not embody the agreements reached by the parties at their earlier conference 18 The "social security" clause of the Union's revised draft agreement, in particular, did not, I find, win Shannon's acquiescence ; he continued to maintain the Respondent's unwillingness to bear the entire cost of a disability insurance program." Shannon testified, in short-credibly, I find-that he did not accept the Union's draft agreement on this occasion. There is evidence in the record, and I find, that he said his partners would not find it acceptable. Smulyan urged that the agreement be presented to them ; Shannon acquiesced, but stated that he had no "faith" in their acceptance of it. His testimony, which I credit, establishes that he did show it to his partner later. Smulyan's testimony with respect to the negotiations, at this stage, differs, notably from that of the Respondent's partner. The union representative identi- fied the company's counterproposal, previously cited, as one presented for the first time on or about March 15, and testified that his contribution to the confer- ence was a "new proposal" which involved a modification of the Union's original proposal on the basis of the suggestions advanced by Shannon at the second conference between the parties. Smulyan went on to testify that his new proposal was discussed in detail, that Shannon requested further changes, that he agreed to their incorporation, and that he agreed to prepare a final draft for signature and the approval of the employees. Shannon, according to Smulyan, agreed inter alga to accept the Union's insurance program. Thereafter, according to the evi- dence offered by the Union's business representative, he returned on or about the 24th of March with a draft agreement which Shannon approved. I cannot accept this version of the third conference. Smulyan did not offer, for the record, any copy of a second "proposal" advanced on behalf of the Union ; the, only documentary evidence available, all of it offered in behalf of the Re- spondent, indicates that Shannon was first presented with a "standard" contract and subsequently with a final revision, signed by Smulyan, which he also urged Shannon to execute. And despite Smulyan's insistence, as a witness, that Shan- non, at this time, accepted the 'Union's insurance program, he admitted the possi- bility that Shannon may have done so with mental reservations. ° Upon the entire record I conclude and find that Smulyan presented Shannon, on this occa- sion, with a final revision, which he expected Shannon to accept and sign, but that Shannon demurred-as he testified-pursuant to a conviction that the revi- sion did not embody correctly, his earlier agreements with the union representa- tive, and a further conviction that the agreement would be unacceptable t6 his partner. Although I have, thus, accepted Shannon's testimony, in the main, with respect to the developments at his third conference with the Union representative, Smul- yan's testimony with respect to subsequent developments, has not been directly contradicted. I find it, or most of it, inherently credible. In substance, he testi- 18 An inspection of the draft, supplied by the Respondent for the record, reveals a number of similarities between it and the "standard" contract previously offered by the union's business representative. Ten of the "standard" contract's twenty-eight clauses. had been modified, however. Shannon, as a witness, identified certain clauses as modified in conformity with an understanding previously reached, and cited other clauses which did not reflect agreement. His detailed testimony in this connection was not challenged- or shaken in cross-examination. 19 Shannon's testimony, in fact, indicates that he had the impression that Sn.alyan had' agreed to his proposal that the responsibility for the premium payment ought : to be divided, with the employees responsible to the extent of 1 percent of their pay. 20 Smulyan's testimony on redirect examination with respect to the origin of the wage- schedule in his second "proposal" varied from his testimony on the point in cross-examina- tion. I regard the variance as a further indication that Smulyan's recollection, with respect to this third conference, was vague, SHANNON & SIMPSON CASKET COMPANY 447 fled that he took the draft agreement discussed at his most recent conference with, Shannon and presented it to the employees at a shop meeting, with Shannon's' approval. He identified Shannon as present when he read the draft agreement to the men, who discussed the Union' s insurance program in detail, requested comparison with other plans, and approved the draft as read. After its approval, he told Shannon, I find-in the presence of the employees-that they had a "deal" on the basis of the draft agreement. According to Smulyan, Shannon then said that he would show the draft agreement to his partners, and that he expected to sign it In 1 or 2 days. Smulyan acquiesced in this arrangement. Shannon could not recall a plant meeting at which the employees considered the draft agreement, but conceded the possibility that such a meeting had occurred'l He was also unable to recall that Smulyan had turned to him after the meeting to express the opinion that they had a "deal" on the basis of the draft as approved. Instead, he testified that he discussed the draft agreement with his partners, after Smulyan left, as a "union proposal" and that they found it unacceptable. To the extent that Shannon's testimony in this connection conflicts with that of Smulyan, I credit the testimony of the union representative-except as to the time at which these events occurred-in which connection I credit the testimony of Shannon, set forth above. In spite of my conclusion, however, that Smulyan's factual recitals with respect to the plant meeting, whatever its date, are inher- ently credible, I find no substantial justification in the record for a conclusion that his subjective evaluation of the situation, as it then stood, was accurate. While accepting Smulyan's testimony, therefore, that the draft was presented to. the employees as an agreed one, and his further testimony that he referred, in the presence of the employees, to his understanding with Shannon as a "deal" or accomplished fact, I cannot, upon the entire record find that his description of its status was accurate. Smulyan, himself, testified finally that Shannon merely declared an intent to show the Union's draft to his partners. Any impression the employees may have gained, to the effect that an agreement had, actually, been negotiated, would appear to have been derived from the conduct and state- ments of Smulyan ; in the light of Shannon's testimony, which I credit, to the effect that he had made clear his position with respect to the draft in the course of the earlier conference, I cannot find that their impressions, if any, were sound. Any contrary conclusion would necessarily have to rest upon the assumption that Shannon possessed full authority to commit the Respondent partnership to a trade agreement without further notice or consultation with his partners ; I find such, an assumption unrealistic-and Smulyan's own testimony, ultimately, would seem to confirm this view. I find, accordingly, that no agreement between the parties had, in fact, been reached. By the end of March, no contract having been signed, the union shop com- mittee asked Shannon about it. When told that no agreement had been signed, they telephoned Smulyan, who in turn called upon Shannon to ask why it had not been executed ; according to Shannon, he expressed surprise, asserting that Shannon had already accepted it. This the Respondent's negotiator denied ; he reported that his partners had found it unacceptable. Smulyan then reported that the employees were unhappy and demanded an agreement; Shannon invited further talks. In the first week of April, the Respondent switched to the wage schedule agreed upon with the Union on February 28, 1950; Shannon testified that it did so because the employees had become restive in the absence of a contract. All u Shannon testified that he never attended any employee meeting at the plant addressed by union representatives. 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD but one of the Respondent's 23-26 employees received an increase on the 1st of April. At or about this time, also, Shannon decided to retain counsel. Shortly after' the first of April, he telephoned James W. Duberg, explained the situation, and asked the latter to act as his bargaining representative. Duberg agreed. Within 2 or 3 days, Duberg asked Shannon to send him a copy of the agreement given him by the Union, and to arrange a meeting with Smulyan, at the plant. Shan- non gave him a copy of the Union's signed draft. In the meantime, Smulyan had telephoned on several occasions to ask if he intended to sign the draft agreement. When Shannon answered in the negative, Smulyan, I find, spoke of counteraction which the Union might be compelled to take. The Respondent's position, however, did not change. On or about April 17, 1950, Joe Guerra, a union-shop committeeman, told Shannon that the employees wanted an agreement and intended to strike if one were not signed. Shannon offered, at once, to meet the Union's business repre- sentative. The latter, when reached, agreed to attend a meeting on April 19 at the plant. b. The designation of Duberg as the Respondent's representative and the strike that followed On the 19th of April, the projected conference was held, in the afternoon." Smulyan and the shop committee attended for the Union, Shannon, Duberg, and his assistant, Robert Falkenborg, attended for the Respondent. Simpson may also have been present. Shannon introduced Smulyan to his attorney and left. Duberg and Smulyan, however, were already acquainted with each other ; they had been involved in negotiations, somewhat earlier, between the Union and certain other casket companies in the Los Angeles area. The testimony of Duberg and Smulyan with respect to subsequent develop- ments at the conference is sharply in conflict. The attorney testified that he opened the discussion by asking Smulyan, "What about your insurance pro- gram?" and that Smulyan picked up his papers immediately, made a number of uncomplimentary remarks, and left. His testimony is corroborated by that of Shannon, who testified that he came back to hear Smulyan call Duberg a "union buster" and leave ; he also testified that Smulyan threatened to "fight" the Respondent from the street. Smulyan whose original testimony with respect to the date of the conference was, I find, in error-testified that he encountered Duberg in the negotiations for the first time on a visit to the plant to see Shan- non. According to Smulyan, Shannon was asked if he would sign the agree- ment previously initialed by the Union and presented to him ; he is alleged to have refused on the ground that Duberg, his attorney, had characterized the agreement as illegal. Various members of the shop committee, according to Smulyan, then asked the Respondent's negotiator if he was going to] "welch" on his agreement, to which he replied that the matter was in Duberg's hands. Duberg then told Smulyan, according to the Union representative's best recollec- tion, that the signed draft was "out" because its union shop and insurance clauses were illegal, and because the Respondent did not want to agree to arbitration ; he is alleged to have indicated that the negotiations would have to start over." n Duberg had previously discussed the Union 's earlier proposals , generally, with Shannon.. 23 Smulyan also testified that Shannon had previously described his counsel as an attorney who would "lick" the Union , and that Duberg himself, at the conference, promised to "scuttle" the Union at the Respondent's plant. On the basis of my observations with respect to Shannon and Duberg, I am constrained to reject Smulyan 's testimony in regard to their alleged threats, as quoted. SHANNON & SIMPSON CASKET COMPANY 449 In that connection, Smulyan testified that Duberg promised to prepare a company 'proposal. In cross, redirect, and recross-examinations, considered as a whole, Smulyan correctly dated the first conference at which Duberg was present and reiterated his direct' examination as to the course of the discussion, with certain additions. His testimony indicates that when informed of Duberg's position, he questioned Shannon directly as to the latter's concurrence ; Shannon, according to the union representative, replied in the affirmative. An attempt to persuade him to change his mind was, allegedly, fruitless-at which point Duberg, according to Sriiulyan, said that there was "nothing on the table" for discussion, and reiterated his earlier opposition to arbitration. According to Smulyan, the meet- ing ended with an admission by Shannon that he was doing the "wrong" thing, but intended to act on his attorney's advice. Smulyan denied categorically that he had "walked out" of his first conference with Duberg after being questioned about the Union's insurance program. The available testimony with respect to the conference, considered as a whole, indicates that wage rates were not discussed, and that the Union made no at- tempt to advance its disability insurance proposals as a subject for discussion. The record also establishes that the Union made no effort, at the conference in question, to press for an automatic arbitration clause. Each of the witnesses who testified with respect to the conference did so with apparent sincerity and conviction. Each testified from memory, without re- liance upon a dairy or notes ; their testimony with respect to what transpired is-patently-sharply in conflict. In the light of the entire record, however, I am convinced that Smulyan's version involves, in the main, a more accurate recapitulation of the discussion. Duberg, retained by Shannon early in April, had already received from him a copy of the draft agreement signed in behalf of the Union by its business representative ; he had identified it as derived from the "standard" contract previously executed by three other firms in the casket industry in the Los Angeles area. His testimony establishes that he had already informed Shannon that the union-shop clause and the insurance program embodied in the Union's draft agreement were "illegal" in the light of the Act. He testified also that he had some "substitute provisions" in mind. Nevertheless, according to his testimony, he did not feel required to come to his first conference prepared to make a counterproposal ; he testified that he had no written counterproposal' ready for presentation, and that he felt a "conference" would be in "order" first. In the light of Smulyan's earlier attempts to induce acceptance of the draft agreement by Shannon, I find it impossible to believe, as Duberg's testi- mony would seem to imply, that Smulyan construed Duberg's mere presence at the conference, and his question with respect to the Union's insurance program, as a definitive sign that an impasse in the negotiations had been reached. Smulyan's testimony, in substance, that he made a determined effort to persuade Shannon to accept the draft agreement, despite the attorney's advice, is con- sistent with his earlier course of conduct as outlined in this Report. Thus, although constrained to reject Smulyan's testimony that Duberg characterized the arbitration clause of the draft agreement as "illegal," and the union repre- sentative's further testimony that Shannon admitted a lack of moral justifi- cation for his refusal to acknowledge the existence of an agreement, I find that Smulyan did come to the plant in the expectation that he would see Shannon, that he attempted to persuade the latter to sign the draft agreement previously offered ; that Shannon refused to do so on the basis of Duberg's advice and re- ferred him to the latter for further negotiations ; that Duberg refused to recog- s 450 DECISIONS OF NATIONAL LA13OR RELATIONS BOARD nize or accept any agreement reached by the parties in the earlier conference, and that, despite this position-which would seemingly have left the next move up to the Union's representative-he promised to prepare a proposal in the Respondent's name;4 for later presentation. On the following morning a picket line was established at the plant ; by the ,end of the day, all of the employees had absented themselves from work.' At sometime during the day, I find, Simpson-Bill Shannon's partner-addressed the employees on the picket line. He offered, on behalf of the Respondent, to give the employees a wage increase of 5 cents per hour in lieu of the disability insurance program embodied in the Union's contract proposal.26 Simpson re- ported his offer to Shannon, and the shop committee reported it to i Smulyan. The latter telephoned Shannon, who confirmed the fact that such an' offer had been made 27 Almost immediately, the employees voted to accept the offer and return to work; Smulyan telephoned Shannon to report the fact. Thereafter, at an unspecified hour in the afternoon, Smulyan called upon Shannon and Simpson at the Respondent's plant office28 Shannon's testimony ,with respect to the discussion that ensued, which I credit, indicates that Simpson's offer was reviewed at length. The record establishes, without contradiction, that the wage increase was explained as one intended to become effective when the Re- spondent and the Union reached agreement on a contract, and that the Re- spondent intended to limit it, in scope, to the employees within the bargaining unit designated in this report as appropriate for the purposes of a collective bargain. There was some discussion also as to how the money would be paid- weekly, monthly, or quarterly ; according to Shannon, Smulyan said that the matter could be worked out. No decision was reached, but it was agreed that the men would return to their jobs. On the following day, the employees returned to work. Guerra, on behalf of the shop committee, requested a contract conference on April 22, 1950, a Saturday. Shannon thereafter, by telephone, asked Duberg to be present. At this point it is necessary to digress, to note that the Respondent never did give its employees a wage increase in conformity with Simpson's offer-since, as we shall see, no contract between it and the Union ever became effective." 24 The fact that he made such a promise , and did have a counterproposal ready for the ,next conference is, of course, one to which I have given weight in connection with my determination that the Union's earlier draft agreement was seriously urged upon the Respondent at the meeting in question ; I find it difficult to believe, otherwise. that Duberg would have felt impelled to make any subsequent counterproposal whatever. 25 Smulyan's testimony, at this point, on direct examination, would seem to indicate that he and a union committee had attended a conference at the plant, to discuss a company counterproposal, before the strike. Upon the entire record, his testimony is revealed to be in error. 29 The record establishes that a wage increase in this amount would have! ;represented, approximately, a 3 percent increase over the Respondent's prestrike payroll. In practical effect, therefore, Simpson's offer meant that a cost item approximating 3 percent of the Respondent's payroll would go directly to its employees as wages instead of being paid to an insurance company. 27 In cross-examination, Smulyan testified with respect to a telephone 'conversation with Simpson. I find, as above, that he spoke to Shannon. The ambiguity in the record on this point is, however, immaterial. 28 Duberg was not at the plant. According to his testimony-which has not been denied, and which I find to be credible-Shannon informed him of the strike by telephone, but did not report Simpson's offer. His only suggestion appears to have been that Shannon persuade the men to return to work and arrange another meeting with the Union' s business representative. 29 Duberg, as a witness, could not even recall whether he was advised of the arrange- ment discussed by Smulyan, Shannon, and Simpson, at any time thereafter, before the 2d of May. The record, therefore, is silent as to whether he was actually "aware" of any possible readjustment which might be required in connection with the Respondent's wage scale at the time of his next two conferences with Smulyan , now to be noted. SHANNON & SIMPSON CASKET COMPANY 451 As noted elsewhere in this Report, the Respondent subsequently had to lay off a number of employes in connection with its midyear operational changes. No retroactive raises, in lieu of the insurance program, were given to any terminated employee ; Shannon testified, and I find, that Smulyan never actually requested any retroactive payment of the promised increase to the people laid off. Accord- ing to Shannon, whose testimony is credited, the Respondent merely gave each laid-off employee his prorated vacation pay, despite the fact that it was under no legal obligation to do so. The extent to which such payments may have approximated the amounts which such employees might have received in the form of a retroactive 5-cent wage increase does not appear in the record. c. Subsequent negotiations , the second strike, and the Conciliation Service conference At the time set for the April 22 conference, Smulyan was not present. The rec- ord establishes an inadvertent failure to notify him of the conference. Shan- non then notified him of it by telephone. Upon his arrival, Smulyan accused the Respondent of an unfair labor practice in calling a conference without notice to him, and then proceeded to a discussion of the matters at issue. Duberg, on behalf of the Respondent partnership, presented a counterproposal.30 It con- tained no wage schedule. Duberg testified that he had been told there was no dispute between the parties in regard to wages or any other cost item except the insurance program ; he testified that he had prepared his proposal on other points for agreement on the contract language. An inspection of the proposal, however, indicates that a substantial number of subjects dealt with in the Union's "standard" contract and its previously signed draft were omitted in the counterproposal. With respect to 10 of the clauses previously suggested by the Union-independently, or as the result of previous discussions with Shannon- the Respondent's attorney proposed modifications in language or substance. The Union's language was adopted with respect to 7 clauses, only. Duberg's testimony indicates, and I find, that he gave the proposal to Smulyan- simultaneously expressing the understanding that there was no dispute on wages, that he was there to make proposals with respect to the contract language, and that a wage schedule would be added later if an agreement were reached. Duberg and Shannon agree, and I find, that the clauses of the counterproposal were discussed in order, and that the discussion elicited no objection from Smulyan until paragraph 14-the grievance procedure-was reached.91 Smulyan protested that it was insufficiently detailed. Duberg promised, I find, to prepare a more detailed procedure, and to arrange for another conference after the re- vision was drafted. With Smulyan's acquiescence, the conference ended. Several days after this conference, on a date not set forth in the record, Du- berg prepared a second proposal on behalf of the Respondent. Coincidentally, on or about the 24th of April, Smulyan telephoned Shannon. He requested Shan- non, I find, to dispense with the services of Duberg, describing the latter as a "union buster" with whom he would be unable to reach an agreement. Shan- non's testimony, credited in this connection, indicates that he reaffirmed the status of Duberg as the Respondent's bargaining representative. And, on the 80 Shannon's testimony indicates that it had been prepared by Duberg, and was only shown to him ; he approved it for submission as a counterproposal. 31 The Counterproposal contained no provision for employee disability insurance. Duberg testified ,, credibly, that Smulyan had referred-in passing-to the Respondent's promise of a 3 percent wage increase in lieu of such insurance, at the outset of the conference, and that he made no further reference to the Union's insurance program. I so find. Duberg subsequently discussed the matter with Shannon ; he could not, however , recall the date. 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD following day, Duberg wrote to the union representative, suggesting another conference. The parties met at the plant on the 27th of April. Shannon, although present at the outset of the conference, left shortly thereafter " Duberg and Falken- borg, his associate, presented a proposal to Smulyan, substantially similar to the Respondent's first proposal, but with a considerably expanded section outlining grievance procedure, and a section which provided for permissive arbitration. The Respondent's proposal was discussed. The record establishes that it con- tained no wage schedule and no proposal with respect to disability insurance; it did not, therefore, purport to embody the wage proposal offered on buliialf of the Respondent and accepted by the employees on April 20. Duberg's credited testimony in this connection, however-which corroborates that of Smulyan- establishes that the Union made no attempt, on this occasion, to press its original insurance proposal. I so find. According to Duberg, the only witness who testi- fied about this conference in circumstantial detail, Smulyan was insistent that automatic, as distinguished from permissive, arbitration ought to be established by the agreement as the final step in the grievance procedure. Duberg, for the Respondent, refused to acquiesce ; his testimony indicates, and I find, that the negotiations foundered on this issue, and that the conference then ended.33 Duberg's testimony with respect to the conference indicates that Smulyan left it after some remarks calculated to imply that a strike would follow. Smulyan's testimony contains nothing which might be construed as an implied or expressed denial. I find it unnecessary, however, to reach a conclusion on the point ea There was a strike on May 1, 1950, at the Respondent's plant. The record es- tablishes that it lasted for 3 days. On May 2, 1950, the parties met at the request of the Union, before a commis- sioner of Conciliation. Smulyan and David Sokol, an attorney-and possibly the union committee-represented the Union. At the outset of the discussion, Falkenborg was the only representative of the Respondent present 95 In the face of a demand for assurances that he (Falkenborg) carried authority to negotiate for the Respondent, the latter assured those present, in a written statement, that 33 The Respondent's counsel has attacked Smulyan's credibility generally ; one such attack is based upon Smulyan's alleged "erroneous" testimony that Foster Thomas, then the union steward, was present at the early conferences between Shannon and the union representative. Shannon, however; testified that Thomas was present at the conference now the subject of discussion. Thomas denied it. Even if it be assumed, for the sake of argument, that the denials of Thomas are worthy of credit, I regard the apparent inability of Shannon and Smulyan to remember whether he was present, or absent, as a matter of no consequence. 33 Duberg and Shannon, apparently, interpreted Smulyan's statements as a demand for "compulsory arbitration" as distinguished from automatic arbitration. It is clear and I find, however, that the Union never requested "compulsory arbitration" in a technical sense; it requested only automatic as distinguishing from poino ssti e arbitration (See "Arbitra- tion Clauses in Contracts," 14 LRRDI 2510.) The record establishes that Duberg' s second proposal, on behalf of the Respondent, included the arbitration clause previously urged on behalf of the Union, but the attorney's testimony wuld seem to indicate that Smulyan presented an oral demand for arbitration more rigid in its terms than the Union's contract proposal. I so find. 3a Shannon testified, and I find, that Smulyan telephoned the plant on the following day, reiterated his inability to "get together" with Duberg, and urged the Respondent's partner to join the Union in the execution of the "agreement" they had previously reached- as the union representative interpreted the situation . Smuly _ an told Shannon, I.find,- that the men were uneasy without a contract. He referred to the fact that the Respondent had not yet given the employees their promised wage increase in lieu of disability insurance, and to the fact that the Respondent had previously "agreed" to the Union' s insurance program and a contract. He requested Shannon to sign it. Shannon referred him to Duberg 36 Duberg's testimony establishes , and I find, that he had sent Falkenborg to the con- ference with instructions to use the Respondent 's second proposal as a basis of negotiation. SHANNON & SIMPSON CASKET COMPANY 453, he did have the authority to negotiate for it, and to sign an agreement. The parties then proceeded to consider Union proposals derived from its last draft agreement, and the terms of the Respondent's second counterproposal. Falken-- b'org, I find, initialed some of the sections discussed as acceptable to the Re- spondent partnership. According to Smulyan, Falkenborg thus indicated acceptance of certain con- tract language embodied in the final union proposal allegedly accepted by Shan- non on behalf of the partnership. Upon the entire record, however, I find that Falkenborg initialed or checked certain clauses in the Respondent' s second counterproposal having language substantially similar to, or identical with, the language employed in the Union's most recent proposal38 Five clauses were initialed or checked in this fashion ; the last one, I find, was section 8 of the Respondent's second counterproposal-a section substantially similar to section 15 of the Union's draft, dealing with recognized holidays. Duberg arrived at the afternoon session of the conference. Sokol, for the Union, refused at first to discuss matters with him. Duberg insisted, however, upon his right to participate, and the discussion was resumed with respect to, the vacation clause-section 9 of the Respondent's counterproposal and section .19 of the Union's draft agreement. According to Duberg, every section in the Union's final draft was discussed together with the Respondent' s counter- proposals, if any.37 As a witness, however, the attorney vigorously denied that any agreements were reached ; he testified that he requested the Union, at the conclusion of the discussion, to provide a written, completely integrated draft embodying all of the "proposed" language, for study-and that Smulyan, for the Union, refused to do it. Upon the entire record. I cannot accept Duberg's opinion as to the purpose and result of the conference. I am satisfied that Falkenborg represented himself, in a written statement, as possessed of authority to reach an agreement and that his. initials and other indications of approval on the Respondent's second counter- proposal, in evidence, were intended to indicate agreement and not merely to, acknowledge a definite understanding as to the content of the Union's offer. Duberg himself admitted, as a witness, that Sokol had required Falkenborg to, acknowledge that he was there to reach an agreement, and that Falkenborg had thereafter proceeded to initial contract clauses.98 There is no evidence in the present record, that Duberg ever questioned or repudiated the assurances given by his assistant. I cannot, therefore, accept the conclusion urged by the, attorney ; i. e , the conclusion that the conference was calculated only to achieve a clarification of the Union's contractual proposals. Joint conferences before a commissioner of Conciliation-particularly if held in the midst of a strike` are not, usually, so limited in scope. Despite the lack of logic implicit in his position, however, Duberg-I find-ended the conference, after Smulyan's refusal to reduce the substance of the conference to writing on his terms, with the statement that he would go to his office and set down, on the basis of his notes, his ideas as to the Union's contractual offer." The record establishes, and I find, 8O Falkenborg was not called as a witness by the Respondent, on the ground that his testimony would be merely corroborative . I have drawn no inference adverse to the Respondent on the basis of the fact that he was not called. 37 There was no discussion , however, with respect to wages, job classifications, the Union's insurance program , or the agreement of the Respondent to raise wages in lieu of such a program. 88 Duberg also conceded , in cross -examination , that he had noted "agreement" with respect to one section after the Union had declared its willingness to accept his contract language. 13 Smulyan described Duberg's statement as a promise to prepare a counteroffer. I find that his testimony was based upon a misconception. 215233-53-30 -454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that he did so on the evening of the 2d, for study, and to facilitate "possible acceptance" of the conference result by the Respondent partnership. On May 3, 1950, Duberg wrote to Smulyan with an offer to forward a cops of the document he had prepared the day before. His letter, in material part, read as follows : MY DEAR Ms. SMULYAN : In an attempt to expedite this matter, I have, pursuant to my statement made at the meeting before the Federal Concilia- tion Service yesterday, 2nd May 1950, attempted to set down in writing the various oral proposals made by the Union representatives on said 2nd May 1950. It is not my pleasure to accommodate the Union in such secretarial tasks, however, upon written request from you, Harry, I will forward my concep- tion of what the proposed agreement made by the Union yesterday amounts to. You will understand that such document in no way constitutes and is not intended as an offer or proposal of the Company to the Union, and in no way constitutes or is intended as an acceptance to any offer or proposal of the Union. When we have received from the Union a written proposal as to a Collec- tive Bargaining Agreement between the Company and the Union we shall then be in a position to consider the same and make an answer to, it. Let me remind you, Harry, that I am the bargaining representative of the Company and that if you would confine your efforts at collective bargaining to dealing with me, it would greatly facilitate negotiations. Duberg's testimony indicates that he prepared a number of copies of the document in question, under the impression that the Union might wish to adopt it as a contract proposal, but that he never received a request for copies from Smulyan and retained them, therefore, in his file90 The attorney also testified, and I find, that he made no effort to do anything more than "think" about ,counterproposals on behalf of the Respondent partnership. .d. Summer developments After his receipt of Duberg's letter, Smulyan-I find-renewed his earlier efforts to persuade Bill Shannon that the attorney ought to be released as the Respondent's collective bargaining representative. Shannon's credited testimony, inferentially corroborated by that of Duberg and Smulyan, establishes that he received many telephone calls from the latter, who insisted that there was no need for an impasse, and that the Respondent had agreed to a contract before it retained Duberg, which it ought to sign. The record suggests that Smulyan also referred, in these conversations, to the fact that the Respondent had not yet granted the wage increase promised by Simpson in lieu of the Union's dis- ability insurance proposal. The Respondent now argues, in this connection, that Smulyan's telephone calls were intended to persuade it to accept the Union's insurance program without qualification. Upon the entire record, however, I find that Smulyan's observa- tions in this connection were at all times conditioned, rather than positive, and that he was-in effect-urging the Respondent either to give effect to the promised wage increase, or to accept the Union's insurance program as part of a collective 40 The attorney recalled only one telephone conversation with Smulyan after the above letter was dispatched . In the course of the conversation , Smulyan referred him to Sokol for additional negotiations but did not suggest that Duberg's formulation be mailed to the union attorney. 'SHANNON & SIMPSON CASKET COMPANY 455 bargaining agreement because it had not yet given effect to any increase in lieu of the Union's disability insurance program. Smulyan's efforts were, however-I find-ineffectual ; on the 25th of May he was formally advised in a letter from Shannon that Duberg was, and would continue to be, the Respondent's designated collective bargaining representative. Smulyan's undenied testimony, which I credit in this connection, establishes that the Union requested assistance, for a second time, from the commissioner ,of Conciliation at the end of May. The latter was, however, unable to schedule a conference, since he was hospitalized for an illness. At this point in the development of the negotiations, the testimony of Smulyan with respect to subsequent developments is sharply contradicted by that of Duberg and Bill Shannon. The latter insist that Smulyan made no further effort to contact a company representative until sometime in September-while Smulyan's testimony, if accepted, would tend to establish, with a certain amount ,of circumstantial detail, that he was involved in a series of telephone conversa- tions and personal conferences with Shannon and Duberg throughout the sum- mer. Any resolution of the sharp conflict thus revealed in the record, as I see it, must be bottomed in substantial part upon the available evidence with respect to concurrent developments in the Respondent's business. Shannon's testimony establishes clearly-and I find-that the Respondent partnership, in May and June, decided to discontinue the manufacture of finished and upholstered caskets for sale at retail to funeral directors. As previously noted, its productive efforts thereafter were confined to the manufacture of metal shells and transfer cases. In practical effect, this meant that the Respondent had to dispense with the services of its finish painters, sewing room employees, and upholsterers, while increasing its staff of sheet steel metal workers. The record shows that it had had 23-26 persons in its employ before the production changeover ; that it terminated 12 of its employees ; and that replacements were hired gradually thereafter until its staff was stabilized, temporarily, at 20 in September. Shannon's testimony establishes that the changeover had begun on about the 15th of May; the company sold its silk and hardware inventory by the first of June, and disposed of its entire inventory of finished caskets by the end of that month. Shannon was of the opinion that the union-shop committee had been told of the changeover plans in advance-and he admitted the possi- bility that it might have been mentioned to Smulyan in the course of some May telephone calls. In the light of all the circumstances, I am unable to credit Shannon's testi- mony that the Union made no effort to pursue contract negotiations or to press grievances on behalf of its members during the 1950 summer months. Smulyan testified that he had telephoned Shannon and gone to the Respond- ent's office in mid-June to discuss the layoffs resulting from the production changeover, after the shop committee had called him to report that the company was making changes. The union representative's testimony establishes that Shannon asked him to let the contract negotiations lapse until the Respondent's attempt to readjust its operations came to an end. Such a request on the part of Shannon is understandable; I find that it was made. Nothing in the situation, however, as it stands revealed in the record, suggests that the union representa- tive inclined toward complete acquiescence. In view of the manner in which the conference on May 2 before the commissioner of Conciliation had ended, it would seem most logical for the Union to display an active interest in the possibility that an agreement might be reached ; and Foster Thomas, a former shop committeeman, called as a witness by the Respondent, did testify that, in 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fact, between mid-June and the end of August, he saw Smulyan at the Respond- ent's plant once or twice, and at the union office once. It is patent, and I find, that the Union did not accept Shannon's suggestion completely, despite its failure to request further conferences, and that it did not lose its interest in the representation of the Respondent's employees." Among the questions discussed during this period, I find, were such matters as the possibility of a retroactive payment of the 3 percent raise, promised earlier, to workers laid off in the course of the changeover, and the possibility of separation pay for the employees so laid off. Smulyan's testimony with respect to one of his conversations with Shannon, identified as a conversation in mid-July, indicates that the union representative telephoned Shannon on the basis of a union member's complaint in regard to his. termination out of seniority, but that he also spoke of the Respondent' s failure to pay the 5-cent raise agreed upon, contending that if the Respondent gave no^ raise it should do something about disability insurance. The union representa- tive also testified that lie complained about the fact that nothing had been done about a contract, although the Union's master contract in the Los Angeles area was due to be reopened in September. I find Smulyan's testimony with respect to this conversation, as outlined, credible-despite his inability to re- member, with particularity, the date on which it occurred. His further testimony, however, that Shannon had, in substance, twitted him with the comment that the Union would never get the Respondent to sign a contract, involves the attribution to Shannon of a remark which-upon the entire record, and in the light of my observations with respect to his demeanor-I find to be "out of character" insofar as he is concerned. Despite the fact, therefore, that I have credited Smulyan's testimony generally with respect to the con- versation at issue, I do not credit it with respect to the remark in question. On August 5, 1950, the Respondent announced a general wage increase of 5 cents an hour for its employees, without previous notice or negotiations with, the Union. Shannon testified, credibly, I find, that the wage increase was given for business reasons-to reduce the likelihood of employee turnover in the period of increased business activity and progressive price and wage inflation which followed the outbreak of the Korean war. His testimony establishes, also, to my satisfaction, that Shannon discussed the wage increase with the Respond- ent's employees, in the shop, and explained the reasons for it. Foster Thomas, then the shop steward of the Union was-I find-present. No one mentioned the Union. When questioned with respect to his failure to notify the organiza- tion of the increase, Shannon reiterated his earlier testimony-which I have found myself constrained to reject-that the Respondent had not heard from Smulyan for 2 months ; the silence of the union representative, Shannon testified, had led him to infer that the union was no longer interested in the negotiation of a trade agreement or the representation of the Respondent's employees. Despite the conflict in their testimony with respect to these contacts in June, July, and August-previously noted-Shannon and Smulyan agreed that Joe Guerra and the union representative visited the Respondent's office early in September, on a date not established definitively in the record. They com- plained about the company's failure to execute the earlier "agreement," alleg- edly reached, and its consequent failure to increase wages in conformity with Simpson's earlier promise. Shannon reacted, according to his testimony, with the declaration that he had thought Smulyan was no longer interested in an agreement with the Respondent because of the change in the character of its Al Smulyan did admit that he had made no effort to discuss an agreement with Duberg, during the summer ; I do not regard his testimony as an admission that all efforts to achieve an agreement had been abandoned. SHANNO1^T R: SIMPSON CASKET" COMPANY 457 operations." Smulyan informed him, however, that the Union had sheet metal workers among its membership. He suggested a renewal of contract negotia- tions ; Shannon promised to telephone Duberg, and to arrange for a conference. e. The resumption of active negotiations On September 18, 1950, Smulyan, some members of his committee, and Duberg suet before.a commissioner of Conciliation, at the Union's request. The parties mutually reviewed developments, Smulyan insisting that an agreement had already been reached. Duberg recapitulated the May 2 conference, exhibited his letter of May 3 to the Union, and reported that there had been no reply. His testimony establishes that he then declared there was "nothing on the table" to consider. The Conciliation commissioner asked if he had sent the Union a copy of his notes on the May 2 conference. He replied in the negative. At the request of the commissioner, he then gave a copy of the notes to Smulyan, with the observation that if the Union presented it as an offer, he would take it back for consideration. Smulyan returned it immediately, stating that it was the Union's proposal. Duberg pointed out at once that it had no wage schedule, that the Korean War was substantially affecting wage schedules, and that any agreement being negotiated ought to include a wage proposal.' Smulyan declared that he was unfamiliar with the Respondent's new rates and that he would have to get certain wage data from it ; he also declared his intention to talk to Shannon about some individual wage increases. Duberg promised to recommend to the Respondent that Smulyan be permitted to call at the plant for these purposes, and the meeting ended. Duberg admitted, in cross-examination with respect to the conference-and 1 find-that he knew certain clauses in his notes on the conference of May 2 were objectionable to the Respondent, but that he did not tell Smulyan so. He refused to discuss the proposal, adopted and presented by the Union, until it was complete. Two or three days after his conference with Duberg, Smulyan visited the Respondent's plant to check on the wage rates then being paid. With Shannon, he went over the wage rates and classifications then in effect. Shannon's un- denied testimony establishes that Smulyan protested the rate set for the grinder, and that he agreed, on behalf of the Respondent, to raise it 5 cents per hour. At this point, Smulyan renewed his earlier suggestion that Shannon sign the draft he had previously accepted; Shannon denied any prior agreement." 42 My conclusion that Shannon made this remark, as noted, is not inconsistent with my earlier conclusion, noted elsewhere in this Report, that Smulyan had not in fact lost inter- est in the representation of the Respondent's employees during the summer. There is no objective evidence that the remark was not intended as a self-serving one ; Shannon may well have decided, despite his occasional contacts with Smulyan during the summer, that it would be desirable-for tactical reasons-to declare a belief that the Union had aban- doned its effort to negotiate an agreement, after the company laid off its upholstery workers. 48 With respect to the issue thus raised as to the completeness of the proposal, it is worthy of note that it did not contain any provision for a disability insurance program or for a wage increase in lieu of such a program, and that the Union presented no independent demands in that respect. 44 Shannon's testimony, which stands without contradiction, also indicates that Smulyan threatened to demand a wage increase of 25 cents "across the board ' if the Respondent did not sign the draft agreement ^ allegedly, accepted by it in March, and that Shannon invited him to demand an increase in the indicated amount. Upon the entire record, I find it possible, even likely, that Smulyan and Shannon engaged in this exchange. No such demand on behalf of the employees, however, was ever presented. The remark attributed to Smulyan, in its total context, appears to have been nothing more than a collective bargaining tactic It was effectively countered by Shannon . I find the incident to be devoid of significance. 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On September 27, Duberg reminded Smulyan, by letter, of his commitment to, submit a wage proposal. It was subsequently submitted by mail and Duberg attached it to his notes of the May 2 conference as a union proposal. On the- 30th, by letter, Duberg acknowledged the wage proposal and suggested a meeting on the 5th or 8th of October. Smulyan replied, by letter, that October 5 would- be appropriate for a conference. f. The October 5 conference and subsequent developments On the appointed date, at the Respondent's plant, Duberg and Smulyan met. On behalf of the Respondent, the attorney rejected the Union's "proposal" and wage schedule. Ile submitted a counterproposal-one which included, for the first time, a company insurance proposal intended to supplement, but not to- replace its current disability insurance program.46 The supplementary insur- ance was to be completely financed by the Respondent partnership. The proposal was discussed ; a synthesis of the available testimony establishes, to my satis- faction, that Smulyan expressed opposition to the Company's insurance proposal, and that Duberg spoke of the document, as a whole, in terms calculated to convey the impression that it represented a final offer and ought to be put to, a vote. Smulyan then left the conference and met the Respondent's employees in a parking lot nearby. He presented the company's offer ; it was rejected by one vote, and Smulyan so informed the Respondent's representatives at the- conference. Duberg was told, however, I find, that some of the employees on the Respondent's late shift remained to be polled, and that Guerra would poll the men on the late shift that night. The Respondent offered two employee witnesses with respect to the course of events on the night shift. I believe their testimony to be credible. In sub- stance, it establishes that Foster Thomas-their foreman-who was no longer the union steward, informed them on the evening of the 5th that the Company's draft proposal was up for approval, and that Smulyan would come to poll them, as to whether they wished to accept it or, in the alternative, to strike. The testimony of the men also establishes that they indicated, clearly, their desire to accept the agreement and their reluctance to strike. No union representative,. I find, ever questioned the men on the night shift in this connection. Thomas' credited testimony establishes, instead, that he informed the Union's shop stew- ard, Bill Wahlen, of the opinions expressed by the men, a day or two later. Smulyan testified that he was told by Joe Guerra, on the evening of the day when the employees were polled with respect to the Respondent's new proposal,, that the night shift men had swung a majority vote to an acceptance of it. Upon the entire record, it is inferable however, and I find, that Guerra was not in a position to report the facts in this connection until he received the information from Shop Steward Wahlen-after the latter heard from Foreman Thomas. This would indicate that Smulyan was not fully advised of the changed situation until, at least, 1 or 2 days after the 5th of October. On the 10th, Smulyan telephoned Shannon to report that the employees had authorized him to accept the Respondent's proposal, without the supplemental 41 The Respondent's disability insurance program-at all times-was a privately, financed plan, identified as a Great-West Life Assurance group policy-elected by the Respondent's employees in 1948, in preference to the State-financed plan. Under the plan, the employees contributed to the premium payments by means of a 1 percent deduction from their wages. Shannon testified, and I find, that he was impelled to consider the advisa- bility of more extensive disability benefits because of the interest shown by the Respond- ent's employees in regard to the Union' s insurance program. He received and considered several plans-I find-submitted by his insurance broker. One of these plans was selected for inclusion as part of the Respondent's October a-counterproposal. SHANNON & SIMPSON CASKET COMPANY 459, insurance program. He was asked to telephone Duberg, and did so-with the same offer. There was some discussion ; Smulyan said that he would never accept the Respondent's program-to which Duberg replied that the Union's disability insurance program was unacceptable to the company 4' Duberg, I find, then wrote a letter to Smulyan, in which he referred to their telephone conversation and stated that in view of the Union's rejection of the company's counterproposal of the 5th of October, there was "nothing on the table" to accept. The letter read as follows : DEAR SIR : Referring to our telephone conversation this date in which you stated that "the boys are willing to accept your deal without your Insurance Program" please be advised that, after a meeting with the majority of the- employees, you rejected the company's proposal offered to you on the 5 October 1950. Therefore, there is no offer or proposal of the company on the table at this time and hence nothing to accept. Duberg's testimony, credited in this connection, establishes that he then called Shannon and advised him to make the Respondent's supplemental insurance- program effective at once, by unilateral action, in view of the Union' s unwilling-- ness to accept it. The Respondent partnership decided to act upon this advice, and Duberg was so informed. On October 12, 1950, he wrote a letter to Smulyan informing him of the company's decision. The letter read, in part : DEAR SIR: Please be advised that the company has put into effect an insurance program with benefits for the employees along the lines set forth in the company's counter proposal offered to the Bargaining Representatives on 5 October 1950 and rejected by the Bargaining Representative that same day after a conference with the employees. Please be advised further that the company has put into effect the wage and department classification and schedules as set forth in its counter- proposal rejected by the bargaining representative on 5 October 1950." On the following day, the Union filed its 8 (a) (5) charge in this case. Thereafter, on the 16th, a picket line appeared at the plant. Shannon's undenied' and credited testimony establishes that Smulyan was at the plant that day. The record contains little testimony, however, with respect to the nature of the- Union's position and its precise demands. Shannon's testimony indicates only that Smulyan said the Union would break the Company, that he was asked if his remark was intended as a threat, and that he said it was not. Insofar as the record shows, the strike thus begun is still current. According to Smulyan, Duberg and Shannon were each informed by telephone, 3 or 4 days after the strike began, of the Union's surprise at the fact that the Company's counterproposal had been withdrawn. He reiterated the Union's-- +8 According to Smulyan, Duberg also said in the course of the conversation that he was, doing "union busting"; although he did not deny this testimony expressly, Duberg could not recall making such a statement. The attorney did not impress me as blatantly naive ; I find that he did not thus describe his activities. 47 Shannon admitted, in cross-examination, that the Respondent did not make any gen- eral wage increases effective at this time ; the language of the letter would appear, there- fore, to refer only to the negotiated increase for grinders, agreed upon by Shannon and Smulyan late in September. These increases had been made effective on September 25 and October 2. It is clear, however, that the increase given the grinders was not announced as a negotiated increase. The letter quoted was posted on the Respondent's bulletin board, in conformity with the indication, which it bears, that a copy was made available for that purpose; such a posting would be calculated, obviously, to convey an, impression that the union representative had rejected the 5-cent increase for grinders. 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD desire to accept the Company's last offer. Shannon, Smulyan's testimony indi- cates, told him to take the matter up with Duberg ; but the latter, in a telephone call, reiterated the contention that there was "nothing on the table" to discuss. On December 8, 1950, the parties met in conference before a commissioner of 'Conciliation Duberg, Shannon, Simpson, and Falkenborg attended for the Respondent. Smulyan and some shop committee members attended for the Union. On behalf of the organization, Smulyan presented a written contract proposal after Duberg had declared that there was no proposal pending. The Respondent's representatives requested a recess to consider it. A synthesis of the testimony of Duberg and Shannon indicates that it was read and discussed in detail. On behalf of the company, they concluded that it was unacceptable." This decision, on behalf of the Respondent, was announced by its attorney; he declared in substance that the Respondent did not consider the proposal a good faith offer on the ground that some of the wage rates suggested were lower than those currently being paid, and on the further ground that other matters em- bodied in the document had previously been considered and rejected on the Respondent's behalf.49 Smulyan was informed that unless the Union was in a position to propose something new, the Respondent saw nothing to discuss. A' counterproposal was requested, but the Respondent's representatives had none. On this note the conference ended. There have been no further talks between the Union and company representatives. 3. Analysis and conclusions An analysis of my factual conclusions, set forth above, will show that they are bottomed upon the testimony of all the witnesses presented ; each of the wit- nesses, I find, had something to contribute to my understanding of the situation. And analysis will show that, in the main, I have credited the testimony of Shan- non and Duberg with respect to the dates on which particular events occurred- but that upon occasion, I have credited the testimony of the Union's business manager, in whole or in part, with respect to the nature of the discussion at par- ticular conferences, and the essential spirit with which the parties negotiated in the light of their mutual obligation to bargain collectively. The record, consid- ered as a whole, will-in my opinion-fully support my attempt to resolve the con- flicting evidence in this fashion. Smulyan was obviously unable to recall, or to describe with accuracy, the chronological sequence of certain conferences, and .other events, which marked his attempt to, negotiate with the Respondent ; under the circumstances, however, I am constrained to reject the Respondent's conten- tion that the deficiencies of his testimony in this respect warrant its rejection completely. Ai.i the balance of this Report will show, certain conduct clearly attributable to the Respondent and its collective bargaining representative re- 4e An analysis of the proposal indicates that 6 of its 24 sections stood as modified -after Shannon's refusal to execute the Union's signed draft. In the case of 7 sections, analysis indicates a reversion to the initial position of the Union, in regard to certain demands which it had indicated a willingness to abandon in accepting the company's proposal of October 5. Most significantly, however, the proposal contained no grievance machinery, no provision for arbitration, and no "social security" or disability insurance program. ' 99 A comparison of the minimum wage schedule suggested by the Union on September 29, 1950, the Respondent's offer with respect to wages on the 5th of October, and the minimum wage schedule embodied in the Union's December proposal does reveal that the Union, in December, had substantially reduced its minimum wage demands in a number of classifications, and that its minimum demands, in many classifications were slightly below the Respondent's October offer. There can be no doubt also that the Union's pro- posal of December did contain rate proposals for a number of job classifications no longer :utilized by the Respondent partnership. I so find. SHANNON & SIMPSON CASKET COMPANY 461 veals specific attitudes which, I find, are not conducive to fruitful collective nego- tiation, Smulyan's testimony indicates that he was sensitive to these attitudes; I find them revealed therein with sufficient accuracy to warrant my factual con- clusions. And, in the light of these conclusions, I am constrained to find that the Respondent has refused to bargain with the Union, upon request, as the exclusive representative of its employees in an appropriate unit. The General Counsel alleges that the Respondent's initial refusal to bargain, per se, became manifest in the course of the strike on the 20th of April, when, through one of its partners, it offered a wage increase to its employees, directly, in lieu of the Union's proposal with respect to an employer-financed insurance program G0 Despite my general conclusion, elsewhere to be explained, that the Respondent has been guilty of a refusal to bargain, I find no merit in this conten- tion. The testimony with respect to the incident now in question, insofar as it referred to remarks made on the picket line, was entirely hearsay in character; and there is no reliable indication in it that Simpson's offer, allegedly made to employees on the picket line, was not in fact made to shop committeemen of the Union serving as pickets. Whatever the fact may have been it is clear, in the light of the record, that the Respondent's offer was immediately communicated to Smulyan, and that the Respondent's accredited negotiator, Bill Shannon, made- no attempt to avoid discussion with the union representative in regard to it. Without attempting, at this time, to characterize the nature of the agreement reached in regard to the Respondent's offer, I find the evidence with respect to it insufficient to sustain a conclusion that the Respondent intended, by its offer, to undermine the authority of the Union as the exclusive representative of its em- ployees or to impair its ability to bargain collectively in their behalf b1 Even if it could be assumed, for the sake of argument, that the offer was so intended, the record establishes that the Respondent's efforts in that connection were success- -fully aborted by the intervention of Smulyan-and that no impairment of the Union's status as the exclusive representative of the employees resulted. Upon the record thus construed, I cannot find-in short-that the conduct of the Respondent, on the 20th of April, involved a refusal to bargain. The General Counsel also contends, however, that the Respondent's refusal to execute an agreement immediately after the acceptance of its April 20' offer- in the light of the "belief" of its employees that resolution of the insurance is- sue had cleared the way for a complete agreement-ought to be considered evidence of its bad faith. Despite my conclusion, on other grounds herein- after noted, that the Respondent was no longer bargaining in good faith, I find no merit in this particular contention. It presupposes a meeting of the minds between Shannon and Smulyan on all other subjects of agreement prior to April -20. I have found that no such meeting of the minds occurred, that Shannon's partners had in fact declared the Union's final draft to be unacceptable, and that Smulyan had been so informed . The union representative's apparent belief that an agreement had been reached, and his efforts-in effect-to persuade the members of the Respondent partnership to acknowledge it, could not change the real situation on the 20th of April. I do not believe, therefore, 'that the Respondent's failure-on that date-to make clear its intention to negotiate fur- ther, in regard to other differences yet unresolved, should be taken as an in- dication of bad faith. I find no violation of a statutory duty in the Respond- w Despite his contention that the employees were "under the impression" at the time of the strike that a contract had been agreed upon, and that Shannon was refusing to honor a commitment made on behalf of the Respondent , the General Counsel does not allege the strike to have been motivated by an unfair labor practice, and makes no specific- contention that Shannon had, in fact, refused to consummate an agreement already reached. 61. The Tevas Company, 93 NLRB 1358 , and cases cited therein. 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fient's failure to disabuse its employees of their belief that a complete agree- ment had previously been reached-nor can I find that its failure to do so created an estoppel which required it to acknowledge the Union's final draft as an integrated and binding agreement. The Respondent's refusal to negotiate and contract, I find, became manifest instead at the May 2 conference. Although the Union's possible justification for the strike then in progress can only be characterized, in the light of the record, -as somewhat obscure, there can be no doubt that it was prepared to negotiate an agreement at the office of the Conciliation commissioner, and that it desired one. Falkenborg, the Respondent's accredited representative, had declared his authority to negotiate and execute an agreement-and the record clearly shows that material progress had been made with that objective in mind before Duberg, the Respondent's principal negotiator, arrived. Yet, despite his failure to repudiate or qualify Falkenborg's authority-expressly declared-Duberg re- fused to acknowledge the results of the conference as binding upon the Respond- ent. His refusal, I find, involved an unfair labor practice. Whatever the validity, under other circumstances, of the contention that an employer is en- titled to have the entire proposal of a union presented for consideration before he may be required to announce his acceptance or rejection of it, the presenta- tion of such a contention on behalf of the Respondent, at this point, is fore- closed in the instant case. The Union desired an agreement, the Respondent was committed to negotiate it-and no barrier to its consummation is alleged to have arisen. I find that Duberg's unilateral effort to convert the results of the May 2 conference into a mere restatement of the Union's contract proposals ,involved the Respondent in a refusal to bargain. The refusal was compounded, I find, by Duberg's letter of May 3, which, in -effect, invited the Union to acknowledge that the agreements reached at the 'conference were merely agreements as to the substance of a revised union con- -tract offer. Under the circumstances, I find that the Union's failure to accept ,Duberg's suggestion cannot be construed to justify the inference, suggested by the Respondent, that the Union desired or intended to suspend negotiations, or a conclusion that it ought to be found guilty of laches in connection with their prosecution. The Respondent's unilateral wage increase, given on the 5th of August, •can only be characterized, in law, as a further refusal to bargain." Ad- mittedly, it announced the increase without advance notice to the Union, and in the absence of consultation or negotiation with that organiza- tion as the accredited representative of its employees. In the light of pre- cedents now too numerous to cite, such conduct on the part of the Respondent -must be characterized as an unfair labor practice. The Respondent's negotia- tors argue that its unilateral action did not involve a refusal to bargain because it was no longer under an obligation to deal with the Union ; this contention is grounded in the subsidiary argument that the Respondent's business had been subjected to a substantial change, and that the Union's failure to press for an agreement had led the Respondent to the legitimate conclusion that it was no longer interested in the representation of the employees. These defenses have no merit n The Respondent's plea that a wage increase was economically !in- 53 National Insurance Co. v. N. L. It. B , 187 F. 2d 307 (C. A. 5) may- be noted as a recent court decision affirming the validity of this conclusion. as While it may be true that the unilateral action of an employer becomes unlawful only if undertaken during a period in which it is obligated to bargain with a union, the Respondent has not , in my opinion , established that its obligations were suspended under the circumstances now under discussion . I find no support for its contention that the Union discontinued negotiations without a reason, or, alternatively, that negotiations had been suspended because of 4 deadlock. SHANNON & SIMPSON CASKET COMPANY 463 perative may be conceded. Nevertheless, as the General Counsel has indicated, the Union had been certified as the exclusive representative of the employees less than 6 months prior to the Respondent's announcement-and certainly nothing had occurred thereafter to put the-Respondent on notice that its employees had effectively repudiated the organization as their collective bargaining agent. The record establishes, to my satisfaction, that the Union's business manager had been in recent communication with Shannon, in regard to certain problems arising out of the change in the Respondents productive operations. And I have found that Smulyan, on these occasions, reiterated the suggestion that the Respondent execute a contract upon the terms allegedly agreed upon before the appointment of Duberg as its bargaining representative. Even if a preponder- ance of the evidence could be said to establish the Union's willingness to defer the negotiation or execution of a complete agreement until the Respondent's "changeover" was complete, such acquiescence on its part cannot, legitimately, be construed as an abandonment of its representative status. The Respondent made no effort whatever to determine whether the Union desired to negotiate with respect to the projected wage increase; it made no inquiry in that regard of the Union's shop steward-despite the availability of the latter for inquiry and consultation." And the Respondent has conceded that the wage increase was not intended to implement its earlier promise to raise the pay of its em- ployees by three percent, in lieu of an equivalent payment for a union-sponsored insurance program. I find that it took unilateral action with respect to the wage increase , in derogation of the Union's right to recognition as the exclusive bargaining representative of its employees, and thereby refused to bargain 66 The Respondent, I find, was guilty of a further refusal to bargain in October. An extensive recapitulation of the relevant events, at this point, would not seem to be necessary or appropriate; upon the entire record, I find it sufficient to point out that the Respondent's action in submitting a supplementary insurance program as a part of its October 5 counterproposal was entirely voluntary, that the proposal had not been drafted in reply to any demand which the Union was currently pressing, and that its ultimate rejection by the Union did not-con- trary to the contention of the Respondent's attorney-create an impasse with respect to the entire contract-or even with respect to the matter of the insurance program 68 Whatever the situation may have been at the close of the October 5 conference, it is clear, and I find, that the Union, on October 10, accepted the Respondent's proposal in full, with the exception of the supplementary insurance program. Under the circumstances, the exclusion of that program from the area 61 The fact that the Union failed to object, at the time, in no way vitiates the signifi- cance of the Respondent's action as an unfair labor practice ; I so find s: The contention that the Respondent took similar action in December-and thus com- mitted a further unfair labor practice-is not supported by a fully developed record ; I express no conclusions with respect to any wage increase given at that time, as alleged. 66 The Respondent contends that the Union had never abandoned its demand for the union-sponsored disability insurance program ; it relies upon this contention , in fact, to support a further argument that the Union's position involved it in a refusal to bargain and made good faith bargaining on the part of the Respondent ineffective. I have found, as a matter of fact , that the Union abandoned its insurance demand after the April 20 strike ; thereafter, Smulyan's only references to the union-sponsored program were in the alternative :-in the form of a demand that the Respondent grant the promised 3 percent wage increase, or accept the insurance proposal if it no longer wished to raise its wage scale as promised. Under the circumstances, it is more than clear, I find, that the Union did not regard the acceptance of itscinsurance -program as an essential prerequisite to any collective agreement. I find, therefore , contrary to the Respondent's contention , that the Union's position on this issue was not so intransigent as to create a situation in which the Respondent's good faith could not be tested. Compare Times Publishing Company, et ai.. 72 NLRB 676. 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of agreement created no barrier to the consummation of a contract 67 The Re- spondent, in short, could have executed a complete agreement with the Union, on the basis of the position finally adopted by Smulyan as its business representative. If some concession to the employees in lieu of the Union's insurance program was, in fact, required to lay at rest any dissatisfaction among the employees , the Re- spondent was free to give effect to its promises made on the 20th of April ; and the fact that intervening events , apparently, had made clear to the Respondent the desirability of supplementary disability insurance cannot excuse its failure or refusal to act upon the Union's acceptance of its proposal with that gratuitous concession excluded. I find that the Respondent, when it refused to accept the Union's October 10 offer, was guilty of a refusal to bargain 6e The General Counsel, contends, in addition, that the Respondent was guilty of an unfair labor practice on the 12th of October, when it made effective, unilater- ally, its supplementary insurance program. I find no merit in this contention- except to the limited extent hereinafter noted. The Respondent's action was clearly one which involved a unilateral change in the conditions of work, but one only made effective after the same proposal had been presented in the course of collective bargaining, and after it had been left "unaccepted or even rejected" by the Union in the course of the negotiations." In reaching the conclusion, there- fore, that it did not involve a refusal to bargain, I need not conclude, as the Re- spondent contends, in reliance upon the Andrew Jergens case,60 that the parties had reached an impasse with respect to the matter of disability insurance. On the merits, I do not believe that such an impasse had been reached-but even if the Union's attitude with respect to the Respondent's supplementary insurance proposal could be characterized only as one of "indifference," as the General Counsel contends, the Respondent was not, I find, obligated to press for agreement or an impasse before its program could become effective. The Respondent's action, under the circumstances, carried no disparagement of the collective bar- gaining negotiations ; in the light of the Union's apparent willingness to accept the Respondent's counterproposal without an insurance program , the Respondent's action cannot be characterized as calculated to promote, or to prevent agreement. I find that it did not constitute a refusal to bargain. The Respondent's conduct at the December 8 conference has not been urged, independently, as an unfair labor practice. In the light of the record, which establishes that the Respondent was presented, at that time, with a "stale" proposal, I find the Respondent's refusal to discuss the document then "on the table" inadequate ground for a conclusion, considered in isolation, that it had again refused to bargain. At most, the conference indicated the Respondent's intention to maintain the position it had taken on October 10-i. e., the position that the concessions of the Union on that date were insufficient to extinguish every significant area of disagreement. My conclusions with respect to the validity of that position are already apparent ; it would serve no useful purpose to recapitulate them here. '51 The Respondent's insurance program would not have involved any cost to the em- ployees, and would have involved some cost to the Respondent ; in effect, the employees, through Smulyan , had rejected an offered emolument . The Respondent may have feared that the execution of a contract without some provision for extra disability insurance benefits would leave it subject to renewed demands for such insurance at a later date. Shannon so testified . The present "climate" in the field of labor relations , however, is such that demands with respect to the extension or modification of insurance plans may reasonably be anticipated , in any event ; their likelihood ought not to be construed as a barrier to present agreement. Ps Atlantic Broadcasting Company, 90 NLRB 808, 818. 59N. L R B. v. Crompton-Highland Mills, Inc., 337 U. S. 217, 224-225, and the cases therein cited. w 175 F 2d 130, cert. den. 338 IT. S. 827. SHANNON & SIMPSON CASKET COMPANY 465 In addition to the specific occasions, set forth in this Report on which the'Re- spondent is alleged to have refused to bargain, the General Counsel argues that the Respondent's entire course of conduct indicates an unwillingness to bargain in good faith-and, therefore, that its course of conduct, considered as a whole, addi- tionally warrants the conclusion that the Respondent has been guilty of an unfair labor practice. I find merit in this contention, at least with respect to the course of conduct imputable to the Respondent after the 19th of April 81 An •extensive discussion of my reasons would unduly extend this report ; in the light of established precedents, I find it sufficient to say that the Respondent gave evi- dence of bad faith, in the course of the negotiations, in the following respects : (1) By its dilatory tactics, calculated to delay and forestall agreement- specifically, Duberg's indication that the Union's signed draft was "out" as a basis of agreement because three of its 28 clauses were unacceptable, and his declaration that negotiations would have to start over ; his failure, in the light of this contention, to present a counterproposal at the April 19 conference ; his failure to present a complete proposal on the 22nd of that month, because of his "expectation" that no agreement would then be reached ; his efforts to avoid a commitment on behalf of the Respondent at the May 2 conference ; his insistence, thereafter, that the conference results were to be construed merely as a restatement of the Union's contract proposal; his failure thereafter to treat them as such, and to meet them with a definite counterproposal, within a reasonable period after the conference in question ; his insistence, on the 18th of September, that there was "nothing on the table" to consider; his failure to present a counterproposal on that date, when the Union finally acquiesced and adopted his version of the May 2 agreements as a mere statement of its offer ; his failure to disclose, on the 18th of September, that the Respondent had certain objections to the Union's new "offer," which it intended in fact to urge at a later date; his failure to prepare or present current wage data in connection with the conference on the 18th, and his indication that the Union would have to secure the information upon which to base a wage proposal thereafter, directly from the Respondent partnership; his "delayed" rejection of the Union's proposal, previously complete except as to wages, on the 5tb of October; his insistence, after the October 5 conference, that the Union's tentative and unconfirmed re- jection of the Respondent's counterproposal had, in effect, swept away the Respondent's proposal and left nothing "on the table" for the Union later to accept ; and finally, his insistence on the 8th of December that the Union was under an obligation to present a new proposal in an effort to reach an agreement ; 82 (2) By Duberg's refusal on behalf of the Respondent, previously noted, to acknowledge the results of the May 2 conference as an agreement to which the Respondent was bound, despite his failure to repudiate, question, or qualify Falkenborg's earlier representation that he had been authorized to negotiate and execute an agreement in the Respondent partnership's name ; (3) By the Respondent's unilateral action with respect to the general wage increase it made effective on August 5, 1950, under the circumstances previously noted ; and a In reaching this conclusion, I have not, however, relied upon the fact-urged as a justification for the conclusion-that the Respondent chose Duberg as a negotiator with knowledge of his participation in earlier negotiations involving other casket manufacturers, and with knowledge of the positions he took and attitudes he displayed in those negotia- tions. Although I find, in this Report that the Respondent has refused to bargain in good faith, I do not consider its choice of a negotiator, per Se, as an indication of any pre- disposition not to bargain. 62 Cf. N. L. R. B.-V. O'Keefe and Merritt Mfg. Company, 178 F. 2d 445, 449 (C. A. 9L). 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (4) By the Respondent's unilateral repudiation (in effect) of its April 20' promise of a wage increase, in lieu of the Union's insurance program, through the substitution of a supplementary insurance program, formulated and made effective despite the absence of any consultation or agreement with respect to its effect on the earlier promise noted 68 In addition, I find it necessary to single out, for particular discussion, the attitude revealed by the Respondent's representative throughout the negotiations now subject to review. The Respondent's representative is an attorney; he indicated quite frankly-as a witness-that he considers the collective bargaining process equivalent, in substance, to conventional contract negotiation. In con- ventional contract law, with certain possible exceptions not material here, a completely integrated and explicit offer must be matched with an unqualified acceptance before a contract can be said to result. Rigid adherence to such a principle in the negotiation of trade agreements-whatever there may be to recommend it, in legal theory-would deprive collective bargaining in the labor relations field, I find, of the flexibility and freedom required for success. While there can be no question, in my opinion, of the sincerity with which the Re- spondent's representative adheres to his views In regard to the collective bar- gaining process, the circumstances of the present case clearly show that a declared unwillingness to proceed, step by step, from less controversial to more controversial issues; rigid insistence that union proposals be completely inte- grated before presentation to the employer for ultimate consideration; insistence that every subject of possible agreement must be regarded as open until all are settled by the acceptance of a completely integrated offer; and insistencefthat proposals once rejected, in whole or in part, cannot be revived and later accepted, reveal an attitude with respect to collective bargaining more likely to exacer- bate negotiators and promote industrial discord more than to achieve a con- trary result " Whatever scope there may be for such a philosophy of contract negotiation under other circumstances, it seems clear--and I find-that, in the instant case, at least, its application and implementation by the Respondent's attorney con- tributed materially to the Respondent's failure to reach an agreement with the Union 65 Under the circumstances, while conceding the sincerity of the Re- spondent's attorney, I am constrained to find that conduct grounded in the atti- tude or "point of view" outlined by him cannot be characterized, in law, as collec- 13 Cf Standard Generator Service Company of Missouri, Inc., 911 NLRB 790, 800. 84 The Respondent's contention that the Union was guilty of bad faith when Smulyan "went through the motions" of collective negotiation after April 20, despite his reiterated contention that an agreement had already been reached, is a contention grounded, essen- tially, in this questionable attitude. If the Union had chosen to stand upon its contention, as the Respondent argues it should have done, further negotiations-obviously-would have been sterile. I find the Union's conduct consistent with the flexible standards gen- erally applied in the negotiation of trade agreements. 65 I find no merit In the Respondent's contention that Smulyan's frequent efforts to bypass Duberg, and to resume negotiations directly with Shannon, evidenced legal bad faith attributable to the Union ; in any event, they were ultimately abandoned. The Re- spondent's counsel has also contended that the Union was guilty of a refusal to bargain in good faith when it pressed for the Respondent's acceptance of a union- sponsored disability insurance program which did not conform to the requirements set forth in Section 302 of the Taft-Hartley Act. I find this contention, also, deficient in merit. In the light of a Federal district court decision on the plan, cited to the Respondent's attorney by the Union, the propriety and legal validity of the Union's insurance plan would seem to be clear. At the very least, I find, the Union believed its plan to be entirely valid and urged its validity upon the Respondent. It certainly had reasonable grounds for its belief; despite Duberg's apparently sincere conviction that the validity of the plan might be subject to question in other judicial circuits, I cannot say that the SHANNON & SIMPSON CASKET COMPANY 467" tive bargaining in good faith. Negotiations bottomed upon such a philosophy, resulting in the situation revealed by the present record, can only be construed, in short, as the equivalent of an illegal refusal to bargain. I so find. 4. The Respondent's proposed findings of fact and conclusions of law To the extent that they are consistent with the findings of fact and conclusions embodied in this Report, the Respondent's proposed findings of fact Nos. 1, 2, 5, 7, 8, 11, 12, 13, 16, 18, 19, 21, and 22 are accepted . Its proposed findings Nos. 3, 4, 6, 9, 10, 14, 15, 17, 20, 23, 24, 25, and its proposed conclusion of law, are rejected. IV. THE EFFFOr OF 1HE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, set forth in Section III, above, which occurred in connection with the operations of the Respondent described in Sec- tion 1, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States. They tend to lead to labor disputes burden- ing and obstructing commerce and the free flow of commerce. V. THE REMEDY Since it has been found that the Respondent did engage, and is now engaged, in unfair labor practices, it will be recommended that it cease and desist there- from and take certain affirmative action designed to effectuate the policies of the Act. Specifically, it has been found that the Respondent has failed and refused to bargain collectively with the Union, in good faith, as the exclusive representa- tive of its employees in a unit appropriate for the purposes of a collective bargain. In this connection, it has also been found that the Respondent, despite its legal obligation so to bargain, took unilateral action as set forth elsewhere in this Report, with respect to certain matters properly subject to collective bargaining. It will, therefore, be recommended that the Respondent, upon request, resume its negotiations with the Union as the exclusive representatives of its employees in an appropriate unit ; that it bargain collectively, in good faith, with the Union as their exclusive representative, in regard to all matters within the purview of the collective bargaining process, and that it embody any understanding reached in a signed agreement. In the light of the situation revealed by the record, it should-of course-be understood that these recommendations, if adopted or enforced, are intended to assure to the Union, effectively, the full enjoyment of its right to use the col- lective bargaining process, in the future, for the purpose of presenting to the Respondent any demands it may have for a change or modification of the em- ployment conditions unilaterally established by the Respondent, as found-with- out regard to whether the Respondent's unilateral action was illegally, or properly, undertaken." Union's demand for the program was a clearly Illegal demand, or that its presentation gave an indication of had faith. In presenting it, Smulyan fully conceded that certain State-imposed conditions precedent to its validity would have to be satisfied before it could become effective. And in any event, I find, the Union's demand for its program was dropped, at or about the time when the Respondent began to bargain in bad faith; under the circumstances, it cannot serve as a justification or excuse for the bad faith bargaining subsequently imputable to the Respondent. 66 Central Metallic Casket Co., 91 NLRB 572. 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record, however, I cannot agree with the General Counsel's contention that the Respondent's "persistence" in its refusal to bargain shows a studied desire on its part to frustrate the purposes of the statute. Despite the Union's inability to bring the bargaining process to culmination in a signed agree- ment, as a result of the Respondent's conduct, and despite the several strikes that ensued, I find no indication in the record that a danger with respect to the commission of other unfair labor practices is to be anticipated from the conduct of the Respondent in the past. I will not, therefore, recommend that the Re- spondent cease and desist from the commission of any such other unfair labor practices. In order to effectuate the policies of the Act, I will recommend only that it cease and desist from the specific unfair labor practices found and from any other action which might tend to interfere, in any manner, with the efforts of the Union to bargain with it as the exclusive representative of its employees in the unit herein found appropriate for the purposes of a collective bargain. CONCLUSIONS of LAW In the light of these Pndings of fact, and upon the entire record in the case, I make the following conclusions of law : 1. The Respondent, a partnership doing business as the Shannon & Simpson Casket Company, is engaged in trade, traffic, and commerce, and business activi- ties which affect commerce, within the meaning of Section 2 (6) and (7) of the Act. 2. The Upholsterers International Union of North America, Local #15, af- filiated with the American Federation of Labor, is a labor organization within the meaning of Section 2 (5) of the Act. 3. All of the Respondent's production and maintenance employees at its Alhambra, California, plant, exclusive of office clerical employees, the working foremen of the fabrication and assembly department, trimming room, and ship- ping and receiving department, respectively, and all other 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. 4. The Union was on February 17, 1950, and at all times since has been, entitled to act as the exclusive representative of the employees in the aforesaid unit, for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 5. By its failure or refusal, on May 2, 1950, and thereafter, to bargain col- lectively in good faith with the Union as the exclusive representative of its employees in a unit appropriate for collective bargaining, the Respondent en- gaged and has continued to engage in an unfair labor practice within the mean- ing of Section 8 (a) (5) of the Act. 6. By its failure or refusal to bargain collectively, as found, the Respondent has interfered with the efforts of the Union to bargain collectively on behalf of the employees in the unit herein found appropriate for the purpose of a collec- tive bargain ; thereby, it has interfered with, restrained, and coerced its em- ployees in their exercise of rights guaranteed in Section 7 of the Act, and has engaged and continues to engage in an unfair labor practice within the mean- ing of Section 8 (a) (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication in this volume.] COMMERCIAL PRINTING COMPANY 469 Appendix NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board , and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL, upon request, bargain collectively with the UPHOLSTERER'S INTER- NATIONAL UNION OF NORTH AMERICA, LOCAL No . 15, A. F. OF L., as the exclusive representative of all our employees in the unit appropriate for collective bargaining, described below, with respect to labor disputes , grievances, rates of pay, wages , hours of work, disability insurance , and other conditions of employment, and, if an understanding is reached, embody such understand- ing in a signed agreement . The unit appropriate for a collective bargain is : All of the production and maintenance employees at our Alhambra, California,. plant, exclusive of office clerical employees, the working foremen of the fabrication and assembly department , trimming room, and shipping and receiving department , respectively, and all other supervisors as defined in the Act. WE WILL NOT take any unilateral action in derogation of the above-named union's right to act as the exclusive representative of our employees in the above-described unit, with respect to any matter properly subject to the collective bargaining process. WE WILL NOT interfere , in any other manner, with the efforts of the union to bargain collectively with us, in regard to the above -mentioned matters, as the exclusive representative of our employees in the appropriate unit described above. All of our employees are free to become, remain , or refrain from becoming members of the above -named union , or any other labor organization , except to the extent that their right to refrain may be affected by a lawful agreement which requires membership in a labor organization as a condition of employment. EDWARD SHANNON, C . W. SHANNON, AND ARTHUR F. SIMPSON, JR, a partnership, d/b/a SHANNON & SIMPSON CASKET 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. 'COMMERCIAL PRINTING COMPANY and PINE BLUFF PRINTING PRESS- MEN AND ASSISTANTS UNION No. 438, INTERNATIONAL PRINTING PRESSMEN AND ASSISTANTS UNION OF NORTH AMERICA, AFL. Case No. 32-CA-183. June 3,1952 Decision and Order On December 7, 1951, Trial Examiner Stephen S. Bean issued his -Intermediate Report in the above-entitled proceeding, finding that 99 NLRB No. 80. 215233-53-31