John L. Clemmey Co., Inc.

JOHN L. CLEMMEY COMPANY, INC. 599 charges are substantially the same as the Petitioner's objections to the election. On February 6, 1957, the Regional Director refused to issue a complaint on the ground of insufficient evidence. Thereafter, in order to avoid repetition, the Petitioner requested that its excep- tions to the report on objections be used as the basis of its appeal from the Regional Director's refusal to issue a complaint. The General Counsel has sustained the action of the Regional Director. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman Leedom and Members Murdock and Jenkins]. The principal objection to the election made by the Petitioner is that the Employer directly and indirectly aided and assisted the Teamsters and IBEW and defamed the Petitioner. In treating these objections, the Regional Director pointed out that the alleged acts of the Employer urged in the objections are alleged as unfair labor practices in the complaint case. Under established procedure, the Board dismisses objections to an election which are mere reiterations of unfair labor practice charges which have been dismissed by the General Counsel.2 Accordingly, we hereby overrule the Petitioner's objections to the election. In overruling the Petitioner's objections, the Board does not undertake to decide the factual questions raised by the Petitioner's exceptions. The Board rests its decision solely on the application of the Times Square doctrines namely, that it will not in the guise of considering objections to an election review the General Counsel's dismissal of unfair labor practice charges 4 [The Board certified Local 1710, International Brotherhood of Electrical Workers, AFL-CIO, as the designated collective-bargain- ing representative of all production and maintenance employees at the Employer's Los Angeles, California, plant, excluding office, sales, clerical, engineering, technicians, operating engineers, draftsmen, employees engaged in research and experimental activities, guards, and all supervisors as defined in the Act.] 2 31artinolich Ship Repair Co., 111 NLRB 761, 762. 3 Times Square Stores Corporation, 79 NLRB 361. * See Parker Brothers & Company, 110 NLRB 1909. John L. Clemmey Company, Inc. and United Steelworkers of America, AFL-CIO. Case No. 1-CA-2054. July 11,195' DECISION AND ORDER On November 7, 1956, Trial Examiner James A. Shaw issued his Intermediate Report in the above-entitled proceeding, finding that 118 NLRB No. 77. 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Respondent had engaged in certain unfair labor practices but rec- ommending that the complaint be dismissed, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel and the Charging. Party filed exceptions to the Intermediate Report and briefs in support of the exceptions. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. Ex- cept as herein modified, the rulings are hereby affirmed.' The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, con- clusions, and recommendations of the Trial Examiner, but only to the extent consistent with the following : 1. We agree with the findings of the Trial Examiner, to which no exceptions have been filed, that as to the 1956-57 contract, "the Re- spondent was under a statutory duty to bargain with the Union as the exclusive bargaining representative of its employees, and that by entering into an agreement with Local 2851 without the express ap- proval of the Union it violated Section 8 (a) (5) and (1) of the Act." 2 We do not, however, agree with the Trial Examiner that this was only a technical violation and does not call for the issuance of the usual remedial order. The Trial Examiner seems to have been influenced in his conclu- sion that the violation was merely technical by a supposed analogy to the negotiations for the 1952-53 contract which was signed by the Local alone. Apparently, the Trial Examiner felt that the Respond- ent had reason to believe that the Local was authorized to enter into the 1956-57 contract in behalf of the International, the statutory rep- resentative, in view of what had occurred during the 1952-53 con- tract negotiations. However, there is a very important difference be- tween the two situations. The Respondent entered into the 1952-53 I At the hearing, counsel for the Union , the Charging Party, objected on two occasions to questions put to a witness on direct examination by Respondent 's counsel , upon the ground that the questions related to internal union matters . On his own motion, the Trial Ex- aminer refused to entertain these objections. He ruled that the Union could participate in the hearing only to the extent the General Counsel might permit and that the Union could not examine or cross-examine witnesses as to any "matters that had been touched upon by the General Counsel " in his own interrogation of the witness . The General Counsel did not object to the intervention of the Union 's counsel. Section 102 .38 of the Board's Rules provides: Any party shall have the right to appear at such hearing in person , by counsel, or by other representative , to call, examine and cross-examine witnesses , and to introduce into the record documentary or other evidence, except that the participation of any party shall be limited to the extent permitted by the trial examiner . . . A person filing an unfair labor practice charge is a "party " within the meaning of this rule ( section 102 . 8 of the Board 's Rules and Regulations ), and is entitled to participate fully in the hearing. International Brotherhood of Boilermakers , etc. Lodge No. 92 (Rich- field Oil Corporation), 95 NLRB 1191, 1192, footnote 1. The Trial Examiner's ruling restricting the Union 's participation was unduly restrictive and therefore erroneous. However , in view of the Board 's decision, we find that the Trial Examiner 's error was not prejudicial. 2 redo Photo Supply Corp . v. N. L. R. B., 321 U. S. 678. JOHN L. CLEMMEY COMPANY, INC. 601 contract with the Local with the International 's full knowledge and consent and also with the latter 's prior authorization to the Local to bind the International, conveyed directly both to the Local and to the Respondent. In contrast, the Respondent made the 1956-57 agree- ment with the Local without either prior knowledge or authorization by the International, which actually had given instructions against making such an agreement . In addition, the Respondent so con- tracted while negotiations with the International, involving the dis- position of a number of substantial demands which the International had presented to the Respondent, were still pending and incomplete. The Respondent, therefore , was not justified in assuming from any conduct of the International that the Local was authorized to act as agent of the International in signing the 1956-57 collective-bargaining agreement. The Respondent's conduct in concluding an agreement with the Local in disregard of the statutory bargaining representative was not a merely technical violation of the Act . On the contrary , "it was a violation of the essential principle of collective bargaining ..." 3 and calls for the usual remedy in such cases , namely, that the Re- spondent be required to cease and desist from such unlawful practices and, affirmatively, to bargain with the Union. 2. The General Counsel has excepted to the Trial Examiner's failure to find that the granting of the Christmas bonuses in disre- gard of the statutory bargaining representative was a further viola- tion of Section 8 (a) (5) and (1) of the Act. We agree that the Respondent's aforesaid conduct also violated Section 8 (a) (5) and (1) of the Act and so find. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, John L . Clemmey Company, Inc., Mansfield, Massachusetts, and its officers, agents, suc- cessors , and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively with United Steelworkers of America, AFL-CIO, as the exclusive representative of all employees of the Respondent employed at its plant in Mansfield, Massachusetts, exclusive of office clerical employees, timekeepers, watchmen, and all supervisors as defined in Section 2 (11) of the Act, with respect to rates of pay, wages, hours of employment, and other conditions of employment. 3Id. at p. 684. 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) In any like or related manner interfering with the efforts of 'United Steelworkers of America, AFL-CIO, to bargain collectively with the Respondent on behalf of the employees in the above unit. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with United Steelworkers of America, AFL-CIO, as the exclusive representative of its em- ployees in the above unit, with respect to rates of pay, wages, hours of employment, and other conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its plant in Mansfield, Massachusetts, copies of the notice attached hereto marked "Appendix A." 4 Copies of said notice, to be furnished by the Regional Director for the First Region, shall, after being duly signed by the authorized representative of the Re- spondent, be posted by the Respondent immediately upon receipt thereof and maintained by-it for a period of sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the First Region in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. MEMBERS RODGERS and BEAN took no part in the consideration of the above Decision and Order. 4 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." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL bargain collectively upon request with United Steel- workers of America, AFL-CIO, as the exclusive representative of all employees in the bargaining unit described below with respect to wages, rates of pay, hours of employment, and other terms or conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is : JOHN L. CLEMMEY COMPANY , INC. 603 All employees at our Mansfield, Massachusetts, plant, ex- clusive of office clerical employees, timekeepers, watchmen, and all supervisors as defined in the Act. WE WILL NOT in any manner interfere with the efforts of the above-named Union to bargain with us as the exclusive repre- sentative of the employees in the bargaining unit set forth above. JOHN L. CLEMMEY COMPANY, INC., 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. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE On April 11, 1956, upon charges filed by United Steelworkers of America, AFL-CIO, herein called the Union, the General Counsel of the National Labor Relations Board, by the Regional Director for the First Region (Boston, Massa- chusetts), herein referred to as the General Counsel and the Board, respectively, issued a notice of hearing and complaint against John L. Clemmey Company, Inc., Mansfield, Massachusetts, herein called the Respondent , alleging that it had engaged in and was engaging in certain unfair labor practices affecting commerce within the meaning of Section 8 (a) (5) and (1) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein referred to as the Act. With respect to the unfair labor practices the complaint alleges in substance that: (1) Respondent from on or about December 19, 1955, did refuse and continues to refuse to bargain collectively with the Union as the exclusive representative of all the employees in the appropriate unit in that Respondent did, without limitation, (a) on or about December 23, 1955, execute a collective-bargaining agreement with an alleged committee of employees thus bypassing said Union; (b) on or about December 23, 1955, put into effect a wage increase and/or bonus, and did on or about December 23, 1955, pay said wage increase and/or bonus to all the employees in the unit described in paragraph 5 of the complaint without prior consultation with the Union; (c) on or about January 24, 1956, refuse to meet and continue negotia- tions with the Union; and (2) by the acts described above Respondent did engage in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) and (1) and Section 2 (6) and (7) of the Act. On or about April 20, 1956, the Respondent filed its answer in which it admitted certain jurisdictional facts, and denied the commission of any of the alleged unfair labor practices. Pursuant to notice a hearing was held in Attleboro, Massachusetts, on May 17 and 31 and June 1, 1956, and in Fall River, Massachusetts, on July 10, 1956, before the duly designated Trial Examiner. The General Counsel, the Respondent, and the Charging Union were represented by counsel at the hearing. The General Counsel and the Respondent were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues' Counsel for the Charging Union was permitted to participate in the hearing to the extent indicated below. At the close of the hearing the General Counsel moved that the complaint be amended to conform to the proof as regards minor matters, such as names, dates, and the like. The motion was granted by the Trial Examiner. All parties were given an opportunity to present oral argument in support of their respective positions. Only the General Counsel availed himself of this opportunity. The parties were advised by the Trial Examiner of their right to file proposed findings of fact and conclusions of law, with briefs in support thereof. A brief was received from counsel for the Respondent on or about July 31, 1956. It has been duly considered by the Trial Examiner. During the course of the hearing a controversy arose as to the extent to which counsel for a charging union may participate in the prosecution of a complaint case (604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 'before a Trial Examiner of the Board. After considerable discussion the Trial Examiner took the same position he did in the Dallas Concrete case' and the Hexton Furniture Company case 2 both of which were approved sub silentio by the Board. In the Hexton case the Trial Examiner commented as follows: The issue as to the extent a counsel for a charging union and/or a charging party shall be permitted to participate in the conduct of a proceeding in a complaint case before a Trial Examiner of the Board having been raised in the circumstances described immediately above the Trial Examiner then took the position indicated at length below. The Trial Examiner ruled that the presentation and/or prosecution of com- plaints before the Board and its Trial Examiners is the province of the General Counsel. As he sees it Section 3 (d) of the Act prevails and supersedes any and all Rules and Regulations of the Board that might be interpreted contrary to its mandatory provisions. Section 3 (d) provides, inter alia as follows: . He shall have final authority, on behalf of the Board, in respect of the investigation of charges and issuances.of complaints under Section 10, and in respect of the prosecution of such complaints before the Board, and shall have such other duties as the Board may prescribe or as may be provided by law. [Emphasis supplied.] Having so reasoned, the Trial Examiner then laid down the following rules as regards the conduct of the hearing herein which in the main were adhered to thereafter by the parties. His ruling in this regard was as follows. The prosecution of the case was the sole responsibility of the General Counsel, however if he deemed it advisable to waive the examination of a witness either on direct or cross-examination he should so state to the record and counsel for the Charging Union could then participate in the examination of witnesses to the extent indicated by the General Counsel, but under no circumstances would he be permitted to examine or cross-examine any witness as regards matters that had been touched upon by the General Counsel in his interrogation of the witness at bar. In other words the Trial Examiner made it perfectly clear that in no circumstance would he permit "double-barrelled" cross-examination, so to speak, of any witness. The status of counsel for either a charging union and/or a charging party has previously been before the Board. In the Dallas Concrete case,' this question was likewise raised before the Trial Examiner. In that case under somewhat similar circumstances the Trial Examiner held with the approval of the Board and thereafter sub silentio by the Fifth Circuit of the United States Court of Appeals, as follows: i 102 NLRB 1292 at 1296. In his brief counsel for the Union again renews his motion to amend. It is again denied. In the considered opinion of the undersigned the language of the Board, in Sailor's Union of the Pacific, AFL (Moore Dry Dock Company), 92 NLRB 547 (1950) is controlling. In that case a similar situa- tion was involved [except that therein, the charging party was the Employer], and the Board said: Section 8 (a) and (b) of the Labor Management Relations Act create public and not private rights (Phelps Dodge Corporation v. N. L. R. B., 313 U. S. 177). The protection of those rights is entrusted to public officials and not to private parties. The General Counsel of the Board has "final authority, on behalf of the Board in respect of the investigation of charges and issuance of complaints under Section 10 and in respect of the prosecution of such complaints before the Board. ... Thus, the decision whether to issue a complaint, the contents of the complaint, and the management of the prosecution before the Board is entrusted to the sole discretion of the General Counsel (See Haleston Drug Stores, Inc., 86 NLRB 1166). It follows that only the General Counsel may move to amend a complaint to allege an additional violation of the Act. Otherwise the management of the cause would pro tanto be taken from the General Counsel and entrusted to a private party, which is contrary to the scheme of the statute and the specific provision of Section 3 (d). As the General 1 102 NLRB 1292 at 1296-1297. a 111 NLRB 342. JOHN L. CLEMMEY COMPANY, INC. 605 Counsel has declined to join in the charging party's motion, it is hereby denied. The similar ruling of the Trial Examiner is also affirmed. [Emphasis, supplied.] In- the considered opinion of the Trial Examiner the above citation is apropos to the situation herein. •Upon the entire record of the case. and from the Trial Examiner's observation of the witnesses, he makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The complaint alleges and the answer admits that John L. Clemmey Company, Inc., is and has been at all times material herein a corporation duly organized under and existing by virtue of the laws of the Commonwealth of Massachusetts, with its principal office and place of business in the city of Mansfield, Massachusetts. Respondent, in the course and conduct of its business, causes, and continuously .has caused at all times material herein, large quantities of raw materials to be pur- chased and transported in interstate commerce from and through various States of the United States other than the Commonwealth of Massachusetts, and causes, and continuously has caused at all times material herein, steel tanks, valued in excess of $100,000 annually, to be sold and transported from said plant in interstate commerce to States of the United States other than the Commonwealth of Massachusetts. Upon all the foregoing the Trial Examiner finds that the Respondent herein is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED United Steelworkers of America , AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES To begin with there is little, if any, conflict in the testimony adduced at the hearing herein by the parties in support of their respective positions. What little there is will be resolved below by the Trial Examiner. As indicated above, the issues herein revolve around an alleged refusal to bargain with the Union. Here as in many such cases it becomes necessary to ponder what has gone before in the relationship of the Union and the Respondent. In other word, "What is past is prologue- Study the past." 3 Some call it background. Be that as it may, however, no proper understanding of the issues herein and the evidence adduced by the parties in support of their respective positions could be had without going back to the beginning of collective-bargaining relations between the Union and the Respondent. In support of his case-in-chief the General Counsel called but two witnesses, Thomas Rusbino and James A. Beattie, both of whom at one time or another were the field representatives of the Union in charge of the geographical area wherein the Respondent's plant was located. It was their duty as representatives of the exclusive bargaining representative of the Respondent's employees in the unit found appropriate below, to service them, so to speak, in all matters that are a proper subject for collective bargaining. The record shows that the Union was recognized as the exclusive bargaining repre- sentative of the Respondent's employees sometime in 1948 following a strike that lasted some 17 or 18 weeks. Shortly after the Union was recognized by the Respondent as the exclusive bargain- ing representative for its employees, the Union set up a local for its membership in the Respondent's plant, and chartered and designated it as Local 2851. For convenience the Trial Examiner will refer to it herein as Local 2851. For a history of the relation- ship between the parties from the date the Union was recognized in 1948 to October 1955, we turn to the credible testimony of Thomas Rusbino, who, as indicated above, serviced the Respondent's employees in the appropriate unit during this period. Before proceeding further the Trial Examiner feels that here is as good a place as any to dispose of the question as to the appropriate unit. Since the complaint, alleges, and the answer admits, the Trial Examiner finds that "all employees of Respondent employed at its Mansfield plant, exclusive of office clerical employees,. timekeepers, watchmen and all supervisors as defined in Section 2 (11) of the Act,. 3 From the legend on the portals to Archives Building in Washington, D. C. 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act." According to Rusbino the first agreement between the parties was entered into on or about February 5, 1948, and was to continue in effect for a period of 2 years, and provided that it ". . . shall be automatically renewed thereafter excepting that upon due notice in writing from either party to the other that a change is desired and where said notice is given at least sixty (60) days before the anniversary date of this agreement and shall be reopened for the purposes of modifying or revising any and all provisions of this Agreement." Further examination of the above agreement shows that it was signed by representatives of both the Union and Local 2851. At the time the above agreement was entered into Rusbino was the field representative assigned to service Local 2851. According to Rusbino, the officers of Local 2851 in 1949 were Reginald Gagnon, president, William Vallee, vice president, and Henry Penn, recording secretary. There were other minor officers, who insofar as this record is concerned played no part in, the events which concern us herein. The second agreement between the parties was entered into on December 27, 1949, was for a period of 1 year, and contained an automatic renewal clause similar to that contained in the contract entered into in 1948. An examination of this docu- ment shows that it was signed by several officials of the Union, including Rusbino, and by the following officers of Local 2851: Gagnon, Vallee, and Penn .4 The procedure followed by the parties, particularly the Union and Local 2851, in negotiating the agreements is in the considered opinion of the Trial Examiner of the utmost importance, since it plays an important role in his ultimate determina- tion of the issues herein. For this reason he feels that it would be well to insert herein an excerpt from Rusbino's testimony in this regard. It follows below: Q. (By Mr. Waldron.) Now would you describe, sir, the method of negotiation that was carried on in negotiating the agreement that was dated December 27, 1949? Mr. LEPIE: I didn't get the question. May I have it read back, please? (Question read by reporter.) The WITNESS: Of course-You want me to describe it from the outset? Q. (By Mr. Waldron.) Yes.-A. Well, at least 60 days prior to the expi- ration date of any contract I sent a letter, registered letter, return receipt .requested, to the John L. Clemmey Company informing them that the-either the contract would be expiring or that a reopening date would be approaching and suggesting a conference between the parties, namely, the Company and the Steelworkers Union to sit down for the purpose of collective bargaining. Q. Will you go on from there, please?-A. And usually some brief period after that I would usually receive a call from you, Mr. Waldron, stating that the Company had apprised you of the receipt of my letter and suggesting that a conference date be arranged; and they would leave the arrangements to you and I on the basis that we would have to match our schedules to see when there would be a convenient date. After that, a meeting date would be agreed to, a conference date would be agreed to between yourself and myself and usually the collective bargaining conferences would be held at the plant office in Mansfield, Massachusetts. At that time the Union would submit to you a list of written proposed changes that it sought in the agreement and from there on in it was oral collective bargaining across the table. Q. And would the committee, along with yourself and myself, participate in that oral collective bargaining?-A. The principal participants, of course, were yourself and myself. I would occasionally turn to them and ask questions because they were much better equipped to answer questions of plant problems that would occur on a day to day basis and in view of the fact that they are in the plant each and every day and I am not. Q. I will ask you again, Mr. Rusbino, whether or not the committee would participate in the negotiations.-A. I don't know exactly what you mean by "participation." Q. Were the committee members allowed to speak for themselves and express their opinions on the question of the demands made by the union?-A. Why certainly. They would take up any point or embellish on any point that I presented as an official proposal, yes. They would comment on the proposals. Q. And isn't it true that the individual committee members would put forth their own proposals, too?-A. No, sir. 6 See supra. JOHN L. CLEMMEY COMPANY, INC . 607 Q. And forcefully argue their own proposals?-A. They would argue on behalf of the written proposals which I had submitted to you, yes. Q. So that it would be fair to say that during the period of time that Mr. Vallee, Mr. Penn and Mr. Gagnon negotiated with you-with myself, they took full participation in the negotiations.-A. I wouldn't go along with that term, "full participation." Q. Well, so that we can clear up the record, do you want to leave it, sir, that only you and I carried on negotiations with ourselves, without their help?-A. I want to state clearly that the committee would embellish on any point which I brought forth which was listed in our written proposals. I would consult with them from time to time as to their thoughts on some of these things in view of the fact that they were in the plant on a day to day basis. But beyond that point, I would say no, that there was no further partici- pation beyond that point. Q. Well then, you would say that their participation was limited merely to an advisory capacity? Is that the way you want to leave it for the record, sir?-A. I'd rather have it on a consulting capacity. Q. Merely on a consulting capacity.-A. Because actually, I think that is exactly what it was. TRIAL EXAMINER: I don't like to interrupt, and I don't do it very often; but that raises a question in my mind. Did you discuss with the local committee the proposals in the proposed con- tract before you consulted with Mr. Waldron? The WITNESS: Oh, yes, sir, we did. Yes, sir. From the foregoing it is obvious that the Union considered the membership of Local 2851 and its officers of minor importance insofar as negotiating collective- bargaining agreements with the Respondent is concerned. This despite the plain language of Section 7 of the Act. The significance of the Trial Examiner's obser- vation in this regard will be apparent below. The third agreement between the parties was entered into on January 3, 1951, and was for a period of 1 year from February 5, 1951, with a similar automatic renewal clause as set forth in the previous agreements. An examination of the agreement shows that Rusbino and one Lawrence N. Spitz, regional director, signed on behalf of the Union, and the following on behalf of Local 2851: Gagnon, president, Vallee, vice president, and Penn, recording secretary. We now come to the agreement for the period February 5, 1952, to February 4, 1953. The record clearly shows that the circumstances surrounding the execution of this agreement are of the utmost importance for the reason that the Respondent relies to a great extent upon what transpired at that time as a defense to the alle- gations in the complaint as regards its violation of Section 8 (a) (5) of the Act. For that reason the Trial Examiner deems it necessary to dwell at some length on the events that transpired at that time. Rusbino testified that approximately 4 days before Christmas in 1951 he re- ceived a telephone call from James Waldron, Respondent's attorney,5 regarding a serious situation that had arisen among the employees in the plant. Waldron sug- gested that he come to Mansfield at once for the purpose of negotiating a new con- tract. Waldron then told Rusbino that the source of the disturbance among the employees was primarily the fact that up to that date there had been no negotiation for a new contract, and that the employees were concerned because the Respondent was ready to pay a Christmas bonus and wanted to negotiate and discuss this matter with the Union in order to pacify the employees in the plant. Rusbino advised Waldron that he was unable to come to Mansfield due to other commitments, and requested Waldron to put Reginald Gagnon, then president of Local 2851, on the phone. Waldron did so. Gagnon corroborated Waldron as to the seriousness of the situation at Mansfield. Rusbino's account of his conversation with Gagnon is, in the.opinion of the Trial Examiner, of the utmost importance since it goes to the heart of the Respondent's defense to the allegation in the complaint that it violated Section 8 (a) (5) of the Act. For this reason the Trial Examiner sets forth below a pertinent excerpt from Rusbino's credible testimony in this regard: Q. All Tight. What happened after that? Did you talk to Gagnon?- A. Yes. Mr. Gagnon then came to the phone and more or less substantiated what Mr. Waldron had told me and I told him if that was the situation that he could negotiate this issue with the Company provided that he would hold a 5 Reginald Gagnon, president of Local 2851, actually made the call and put Waldron on the phone at Rusbino's request. See infra. 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD special meeting of the members who were employees of the John L. Clemmey Company after discussing the item with the Company and making the presen- tation of the results of the discussion to them and if a majority of those em- ployees, members of our union, ratified the settlement, that I would assent to the results. And I asked him further, however, to call me back and let me know the results of both the sessions with the Company and with the local, union membership. Q. All right. Did that terminate that telephone conversation?-A. Yes. Q. At that time?-A. At that point it did. Q. Did you subsequently on-Did you receive another telephone call on the same day from either Mr. Gagnon or Mr. Waldron?-A. Yes, sir, within an hour of the same day. Q. From whom did you receive this second telephone call?-A. From Mr. Reginald Gagnon, within an hour of our first telephone conversation. Q. Now tell us the substance of this conversation.-A. The substance of the conversation was that the Company had made an offer to pay a Christmas bonus to the employees in lieu of any wage settlement and that Mr. Gagnon then immediately held a meeting of the members in the combined locker and shower room in one of the rear buildings of the plant and that the offer of the Company was unanimously accepted. And I then informed Mr. Gagnon that on that basis I would assent to the settlement on the basis that ultimately it was the employees who would have to be satisfied. Q. All right.-A. And I then asked.him to put Mr. Waldron on the line if Mr. Waldron was there with him, and he said that Mr. Waldron was, that he was calling from the plant office; and I told Mr. Waldron that insofar as I was concerned it was in agreement, that the three committee members, so-called, could sign a-could sign the agreement and that at a later date copies could be forwarded to me for signature. Q. Did you tell him at that time, notwithstanding the fact that you did not sign the extension, that as a representative of the International you were rati- fying the agreement and accepting the agreement?-A. That's right, sir, and that's what I told him. Q. And does that account for the fact that your name does not appear on General Counsel's Exhibit No. 5?-A. Yes, sir, that's correct. [Emphasis supplied.] As indicated above, Rusbino's testimony in this regard was corroborated in sub- stance by that of Reginald Gagnon, a witness called by the Respondent in support of its case-in-chief at the hearing herein. After his conversation with Rusbino, Gagnon called a meeting of the members of Local 2851, in the locker room at the plant, at which time he presented the Re- spondent's offer. The employees voted on the question and a majority of those pres- ent voted to accept the Respondent's proposition. Shortly thereafter Gagnon re- turned to the Respondent's office with the members of the negotiating committee and advised Attorney Waldron and President Clemmey that Local 2851 would sign the contract; In the meantime, however, he had called Rusbino again and informed him of the vote of the membership. Rusbino then advised him to go ahead and sign the agreement, since in the final analysis it was the employees themselves who had to be satisfied. At the same time Rusbino talked to Attorney Waldron and ad- vised him in substance that it was all right for the negotiating committee of Local 2851 to sign the contract. Shortly thereafter Gagnon, Vallee, and Penn signed the agreement. Though Rusbino was sent a copy thereof he never did sign it. The record shows that the 1953-54 contract was negotiated by Rusbino with the members of the negotiating committee of Local 2851, merely sitting idly by as "con- sultants," as Rusbino dubbed them in his testimony. The copy of this agreement that was placed in evidence by the General Counsel at the hearing herein shows that Rusbino signed for the Union, and no one for Local 2851. Rusbino in his testimony stated that only he and Waldron signed the agreement at the time, but that it was agreed that the members of the negotiating committee for Local 2851 would sign later when the final draft of the agreement was typed up, which they did.6 The agreement for the year February 4, 1954, to February 3, 1955, contained the usual automatic renewal provision. The record shows that the agreement was signed by Rusbino on behalf of the Union, and also by the negotiating committee of Local 2851. This agreement, with certain modifications, was renewed in January See General Counsel's Exhibit No. 7. JOHN L. CLEMMEY COMPANY, INC. 609 1955, and was signed by the same persons on behalf of the Union and Local 2851, respectively. Sometime in October 1955, James A. Beattie succeeded Rusbino as the field representative for the Union, and Local 2851 then came under his "jurisdiction." In other words one of his duties was to service Local 2851, as Rusbino had done in the past. This brings us up to the negotiation of the agreement for the period February 4, 1956, to February 4, 1957, which as indicated above is the "bone of contention" herein. According to Beattie's credible testimony, he checked over the situation at the Respondent's plant and in particular the agreement then in effect between the Union and the Respondent as well as past agreements between the parties. As to the latter he admitted that he gave them only a "meager" or cursory check. The importance of his action in this regard will be apparent below. On November 21, 1955, Beattie wrote the Respondent a letter in which he requested a meeting for the purpose of negotiating a new contract for the year February 4, 1956, to February 4, 1957. After an exchange of correspondence a meeting was arranged for December 19, 1955, at the Respondent's offices in Mansfield, Massachusetts. The meeting was held on schedule. Present for the Union was James A. Beattie, field representative for Local 2851, Paul Butler, president, James Guerrini, vice president, and Edward Medeiros, recording secretary; for the Respondent, John L. Clemmey, Jr., president, and James T. Waldron, Esq., its attorney. Prior to the meeting of December 19, 1955, Beattie met with the members of Local 2851 at a regular constituted meeting, at which time the terms of the new agreement were discussed. As will be shown below Beattie relied to some extent on the matters discussed at the above meeting in explaining the "demands" he presented to the Respondent at the opening of the meeting on December 19, 1955, of which more anon. Though Beattie in his testimony referred to the above as a meeting of the membership of Local 2851, his testimony in this regard was some- what modified by the credible testimony of James Guerrini, vice president of the Local. According to Guerrini's credible testimony, there were only about 8 present at the meeting, including the 5 officers of Local 2851. Hence it is obvious that only a mere handful were present at the time the so-called "demands" were discussed. As indicated above there is no serious conflict in the record in regard to what transpired at the meeting of December 19, 1955, and the important events that followed thereafter, between the date of the meeting and December 23, 1955. After long and careful consideration, the Trial Examiner is convinced that the clearest and most accurate account of what transpired during this important period is best told in the credible testimony of James Guerrini, vice president of Local 2851, a witness called by the Respondent to testify on its behalf at the hearing herein. According to Guerrini, the following were present at the above-mentioned meeting: For the Union, James A. Beattie, field representative; for Local 2851, in addition to himself, Philip J. Butler, president, and Manuel Madeiros, recording secretary; and for the Respondent, James L. Waldron, Esq., its attorney. At the onset of the meeting Beattie, who acted as spokesman for the Union and Local 2851, presented to the Respondent the following: LOCAL 2851-J. L. CLEMMEY COMPANY December 19, 1955. UNION CONTRACT PROPOSALS (1) Additional paid holidays; November 11th, October 12th, Employees birthday. (2) A Christmas Bonus: Employees with service of one year or more 100 hours. Employees with six months of service but less than one year, 60 hours. Employees with less than six months of service, 40 hours. (3) Gloves, rubbers, and other protective clothing for employees to be supplied by the Company whenever necessary. (4) All employees in the employ of the Company for one year or less shall receive one week's paid vacation of 40 hours computed at average hourly earnings. All employees in the employ of the Company over one year, but less than three years shall receive one and one-half weeks' paid vacation of 60 hours computed at average hourly earnings. 450553-58-vol. 118-4 0 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All employees in the employ of the Company three years or over shall receive two weeks paid vacation of 80 hours computed at average hourly earnings. All employees in the employ of the Company 12 years or over shall receive three weeks of paid vacation of 120 hours computed at average hourly earnings. (5) An up-to-date Seniority list shall be furnished by the Company to be reviewed by the Union and an agreement reached. (6) A return to the Union Shop Provision with a thirty-day probationary period. A return to the standard checkoff provisions. (7) All increases from the cost of living shall be added to the base rates now in effect and an additional General Wage Increase of fifteen cents per hour shall be granted. (8) There shall be top seniority for Union Officers. (9) The Grievance Procedure shall have language change in the second step as there are no weekly meetings held. Some discussion was had on the above during the morning session, but accord- ing to Guerrini the main discussion at that time was regarding the payment by the Respondent of its usual Christmas bonus. The reason the representatives of Local 2851 insisted upon injecting this issue into the discussion was that the rank-and-file membership of Local 2851, individually and collectively, demanded that they do so before the meeting. After some discussion the Respondent's repre- sentative suggested an adjournment for lunch so that he could discuss the Union's proposals with President Clemmey. During the afternoon meeting many of the Union's proposals were discussed, particularly additional paid hoildays, clothing allowance, and wage increases. Guer- rini's account of what transpired at the afternoon session is most interesting. In the opinion of the Trial Examiner an excerpt from his testimony would be helpful to all. It follows below: Q. All right. Will you tell me what further happened during the course of that meeting?-A. And then we started to talk about getting November I1 or October 12 or the employee's birthday as a day off with pay. And you said it was possible. And from that we went to No. 3 on this list, gloves or rubbers or pro- tective clothing; and I think you and Mr. Beattie came to an agreement that $ 10 would be approved for that. And from there I think we jumped down to No. 7. It was, "All increases from the cost of living shall be added to the base rates now in effect and an additional General Wage increase of fifteen cents per hour shall be granted." Then you and Mr. Beattie got a little bit tangled up on that one. I think that your figures were something like 471/2 cents an hour, and you told Mr. Beattie it was impossible for the Company to pay that 471/2 cents an hour. And from there you went to four and five and 6 and down to eight and nine; and as far as I know, Mr. Beattie and Mr. Butler and Mr. Mediros jumped up off of their seats and were headed out for the door, and you tried to stop them from going out. I think they came back in again and sat down and you offered them something like three or four cents an hour; and you wanted to give them whatever day they wanted, whether it was November 11 or October 12 or the employee's birthday. You agreed previous to that to the $10 for protective clothing, and then I think that you and Mr. Beattie went back to No. 7 again, and this time they got up and they were three-quarters out the door. You asked them if they would call the men together and tell them what the Company's offer was, and Mr. Beattie said that he was not going to hold a meeting at the J. L. Clemmey Company Plant, and you told us that if we were willing to bargain for a contract that there was a lot more that we could get. And I asked. you if you would tell us then what you meant by that. By that time. Mr. Beattie says, "Let's go. Come on." So Mr. Medeiros says, "Come on," and we went out. And when we were in front of the office I mentioned it- maybe Mr. Beattie didn't hear me, but I said Q. (By Mr. Waldron.) Now, Mr. Guerrini, have you told the Examiner all of the conversation that took place at the conference in Mr. Clemmey's office on December 19th, in the afternoon?-A. No, I don't think I have, JOHN L. CLEMMEY COMPANY, INC . 611 because you and Mr. Beattie got kind of steamed up there and you were going a little too fast for me to catch everything. Q. There was other conversation?-A. I know there was. Q. Do you have any memory of it, sir?-A. Well, like I says, you both were going at it kind of hot there for a few minutes, and I couldn't catch everything that was going on. Q. All right. Do you have any memory whatsoever of any conversation between yourself and myself at that meeting?-A. I don't remember. Q. You don't remember, sir?-A. No. Q. Would it refresh your recollection, sir, if I asked you whether or not you requested myself to seek permission from the Company to hold a meeting with the union members as had been done in previous years? Mr. LEPIE: I object to it. TRIAL EXAMINER: Overruled. You have your exception. The WITNESS: I think we did. Q. (By Mr. Waldron.) Well now, so that we can keep this record straight, Mr. Guerrini, who asked permission or who asked the question?-A. I think I did. Q. If you have a memory of it, sir, would you gave the conversation that took place in regard to that request?-A. On December 19th? Q. Yes, sir, in the afternoon session.-A. Off hand, I don't remember. Q. All right. That's all right, Mr. Guerrini. Now, Mr. Guerrini, that meeting came to a conclusion, did it not, on that afternoon?-A. It did. Q. And you left those offices and went out of the offices?-A. That's right. Q. Back to your employment or to your homes?-A. That's right. Q. And you had no further conversation with me that day?-A. That's right. As indicated above Waldron, the Respondent's attorney, met with the employees in the plant sometime after the above meeting ended and advised them of the Re- spondent's position as to the terms of the contract for 1956-57, and in particular as to the Respondent's counterproposals. During the course of his talk with the employees the question of the so-called Christmas bonus was injected into the discussion by several of the employees including Guerrini. On the next day, December 20, and thereafter until the afternoon of December 23, 1955, there was considerable discussion among the employees as to (1) the pay- ment of the'Christmasbonus, (2) the attitude of the Union's representative, Beattie, as to the postponement of negotiations for the 1956-57 contract until after the Christmas holidays, and its effect on their receiving the expected Christmas bonus, and (3) the possibility of reaching an agreement with the Respondent before Christ- mas. The record clearly shows that there was considerable unrest among the employees during the week in question. As the Trial Examiner sees it the members of Local 2851 were primarily concerned about their receiving the Christmas bonus. As a result constant pressure was put on the officers of Local 2851 to effectuate an agreement with the Respondent in order to assure the payment of the anticipated bonus. The Trial Examiner's observation is amply supported by a preponderance of the reliable and probative evidence adduced at the hearing herein. What the members of Local 2851 did to assure their position in this regard will be discussed and disposed of below. As indicated above there was considerable unrest among the membership of Local 2851 after December 19, 1955. The failure of the Union, acting through Beattie, its field representative, to reach an agreement with the Respondent that at least provided for their anticipated Christmas bonus was unquestionably the primary cause of the unrest. That this is so is amply demonstrated in the record. For example, on or about December 20, 1955, a petition addressed to the officers of Local 2851 demanding a special meeting of the local to consider this issue was circulated among the membership by Joe Canty and William Vallee, rank-and-file members of the local at'this time. After several signatures had been secured Canty and Vallee presented the petition to Butler, as president of the local. Butler told them that he would not call a special meeting and handed them back the petition. Unquestionably this was a motivating factor behind the action of Butler, Guerrini, and Medeiros in requesting a meeting with President Clemmey on December 21, 1955, of which more anon. On or about December 21, 1955, the following officers of Local 2851, Butler, president, Guerrini, vice president, and Medeiros, called on President Clemmey and asked him if it would be possible for the members of Local 2851 to negotiate a new 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreement for 1956-57, in which would be embodied the agreement that was to expire February 4, 1956, plus any one of the additional holidays set forth in the Union's "demands." 7 They further advised him that there would be "no strings attached" to the signing of the new agreement. According to Guerrini what they .meant by "no strings attached" was as follows: Q. (By Mr. Waldron.) What took place after that, sir?-A. Well, we were trying to tell Mr. Clemmey that he could take our word for it, in case we couldn't get in touch with the men, if we signed any papers he didn't have to worry about us taking him into court or anything like that. Q. And did Mr. Butler participate in that conversation?-A. He sure did. Q. Did Mr. Medeiros participate in that conversation?-A. He did. Q. And did yourself?-A. Yes, sir. President Clemmey told the committee that it was impossible for him to negotiate any contract with them and advised Butler, as president of Local 2851, to get in touch with Beattie, and that he in turn would get in touch with the Respondent's attorney, Waldron. Clemmey then told the committee in substance that if they could get Waldron and Beattie together then it was possible the parties could sit down and negotiate the new agreement. Butler then advised President Clemmey that he would get in touch with Beattie, and Clemmey said he would likewise try to get in touch with Attorney Waldron. The committee then left Clemmey's office and returned to the plant. According to Guerrini's credible testimony he and Butler had the following conversation shortly after they left Clemmey's office. Q. (By Mr. Waldron.) Now will you tell me, sir, what took place next as far as you participated in any negotiations concerning the labor contract for the Clemmey Company? Did you discuss this matter with Mr. Butler and Mr. Medeiros?-A. I did. Q. After you left Mr. Clemmey?-A. That's right. Mr. Butler and I talked about it and he told me that he was going to try to get in touch with Mr. Beattie and some of the men of Local 2851 approached us and asked us if we made any headway; and we told them that it was impossible, that we'd have to get Mr. Beattie and Mr. Waldron together. And Mr. Butler told the men of Local 2851 that he was going to try to get in touch with him, and the men were satisfied with that answer from Mr. Butler. Q. Now do you have any knowledge of whether or not Mr. Butler was able to contact Mr. Beattie?-A. He told me that he couldn't get in touch with Mr. Beattie. Q. And when did he tell you that, sir?-A. The following day. Q. And would this day be Wednesday or Thursday?-A. It could be either day. Q. It could be either day?-A. Yes. Q. Did you talk with him after his conversation in which he told you he could not get in touch with Mr. Beattie?-A. Yes, sir. Q. Did you ask him whether or not he had tried again?-A. I think I asked him two or three times that week. Q. And what was his answer?-A. He said he never-He said he called and he said not at any time did he have-That he did not talk to Mr. Beattie. Q. You heard Mr. Beattie testify in this room two weeks ago yesterday?-A. I did. Q. Did you hear Mr. Beattie testify that he had talked with Mr. Butler by telephone on Thursday-A. That's right. Q. -the 22nd day of December, 1955?-A. I did. Q. Did Mr. Butler report that telephone conversation to you as vice-president of the Union?-A. He did not.8 [Emphasis supplied.] The importance of this testimony will be apparent below, particularly since it goes to the heart of the Trial Examiner's ultimate disposal of the issues herein. Butler called Beattie on the night of December 22, 1955. Beattie's credible testi- mony in this regard is of the utmost importance since it throws considerable light on the situation that confronted the officers of Local 2851 when they met with the Respondent's representatives on December 23, 1955. Again it goes to explain the See .supra. 8 Guerrini later on in his testimony admitted that Butler did advise him as to Beattie's refusal to come to the plant to negotiate the new agreement. See infra. JOHN L. CLEMMEY COMPANY, INC. 613 temper of the membership during the week of December 19, 1955, and the causes behind their pressure on the officers of the local. Q. (By Mr. Lepie.) What did he say to you during this telephone call and what did you say to him? Give us the substance of the telephone conver- sation.-A. He called me up and said that the Company wanted to pay off the bonus there, and for that to sign a contract for the coming year in its entirety, and I told him, and he asked me how I was set up for time, and I said that when Mr. Waldron had told me on the 19th that he couldn't see us until after Christmas because he was tied up, that I had made commit- ments to go other places and that I was not interested in a contract that just paid off the Christmas bonus, that the people had said to us quite strongly in the November meeting that they had not received a raise for five years and had always been paid off with a Christmas bonus, that they wanted a bona fide real contract with money added to the wage rate, that that was the only contract that I was interested-in, a full and conclusive, real, bona fide contract, and that we had until February 4 to consummate one, and I didn't see any reason for rushing down a couple of days before Christmas to consummate a contract for the ensuing year by being paid off by a bonus, and I told him not to enter into any such situation. With each passing day the unrest of the membership of Local 2851 increased in tempo. On the morning of December 23, 1955, William Vallee, a former officer of the local, went into the Respondent's offices on the first floor and on his own initiative (insofar as this record is concerned) had one of the girls in the office type the following: December 23, 1955. We, whose names are here, ask John Clemmey, President of the Clemmey Company, Inc., to give us the same -amount of money in the same way, that he gave it to us last year and to give us one more holiday, Armistice Day, No- vember 11th. If these demands are met by the Company, we will take all of the other conditions of our labor contract now in effect and have them continue for one year and we agree that our Officers and bargaining committee will sign a contract. [Thereafter follow the signatures of 41 of the Respondent's employees.] After the girl typed the petition Vallee took the original and a copy and laid them on 'a tank in the shop for the employees to read and sign if they desired to do so. On the morning of December 23, 1955, Butler told Guerrini about his conversation with Beattie on the night before, and of Beattie's refusal to make a trip to the Respondent's plant for the sole purpose of discussing the Christmas bonus situation.9 Later that morning Butler, Guerrini, and Medeiros, met with Attorney Waldron in the Respondent's office. At this meeting Waldron presented to them a draft of a new agreement for the year 1956-57. Butler, acting as spokesman for Local 2851, advised Waldron that he hesitated to sign the document without Beattie's approval. As a result of Butler's position the committee did not sign the agreement, even though embodied therein was the position taken by the committee in their proposal to President Clemmey on December 21, 1955. Sometime in the early afternoon of December 23, 1955, the attention of Butler, Guerrini, and Medeiros was directed to the above-described petition. At the time several members of the local were standing around the tank where Vallee had put the petition for the employees to sign. After reading the petition and looking over the signatures Butler signed it. Guerrini and Medeiros did likewise. Butler then picked up the petition and went back upstairs to the Respondent's office and met again with Attorney Waldron. After some discussion Butler presented the petition to Waldron and advised him that the committee was ready to discuss the proposed agreement. Waldron then called President Clemmey into the conference room. What happened thereafter is best told in Guerrini's testimony in this regard. Q. (By Mr. Waldron.) And then, sir, did we finally arrive at an agreement that was acceptable to the negotiating committee?-A. We did. Q. And then what next step was taken?-A. I think you got up from the table and you went in and called Mr. John L. Clemmey, Jr. into the room. ° See Beattie's testimony supra. 614 DECISIONS OF NATIONAL LABOR RELATIONS, BOARD Q. I see.-A. And he sat at the head of the table and he told Mr. Butler that if he was sure that he wanted to do this, and Mr. Butler says, "Yes, that's what Local 2851 wants, and we are going to accept it." So Mr. Clemmey says that if he was sure, he was hoping that we would not drag him into any affairs after we had signed, and we told him he had noting to worry about. So then Mr. Butler signed-put his signature down, I did, and then Mr. Medeiros put his signature down. And then the paper was handed to Mr. John L. Clemmey, Jr., and he signed it. Q. Now is that all the memory you have, sir, of the conversation that took place up to that time between Mr. Clemmey, Mr. Butler, yourself and Mr. Medeiros? TRIAL EXAMINER: Off the record. (Discussion off the record.) TRIAL EXAMINER: On the record. Proceed. Q. (By Mr. Waldron.) Mr. Guerrini, the last question I asked you was did your last statement exhaust your memory of all the conversation that took place between John L. Clemmey and your committee on the 23d day of December 1955, when you met with Mr. Clemmey and myself in his office?- A. Well, after the committee had signed, I think before he signed he advised Mr. Butler if he didn't think he should wait until after the holidays before he signed the paper, and Mr. Butler told him no, that it was all right, that we had given our word to him, that it was all right for him to sign the paper. Q. Now after signing by both parties of this agreement, did you immediately leave the room, or did you remain there?-A. We remained there. Q. Can you tell us approximately how long a period of time?-A. I'd say until almost three o'clock. Q. Can you tell me whether or not anyone left that room during that period of time, if you have memory of it?-A. No. [Emphasis supplied.] The agreement in question is set forth below. December 23,1955. It is agreed by and between the party signators in this agreement that the labor contract in existence between the John L. Clemmey Company, Inc. and United Steelworkers of America, C. 1. 0., Local #2851 from February 4, 1955 until February 3, 1956 shall continue for a further period from February 5, 1956 until February 4, 1957 except eligibility of a vacation measurement and pay- ment shall be based upon an eligibility of July 1, 1956 and the terms and conditions of an agreement of a modified union shop as set forth in a letter of agreement between the Clemmey Company and the Union dated January 1, 1954 shall be continued in full force and effect until February 4, 1957 and furthermore, November 11, 1956 shall be considered a paid holiday under the provision of Section 1, Article 10 of the contract and Section 2 of Article 13 shall be changed to read "new employees hired after February 5, 1956 should be paid a wage of not less than $1.00 per hour" and that Article 15 entitled VACATIONS, Section 1 and sub-sections A, B and C and Section 2 wherein the figures July 1, 1955 appears should be changed to July 1, 1956 and all other terms and conditions to remain the same. JOHN L. CLEMMEY COMPANY, INC., By J. H. CLEMMEY, PRES., President. Witness to signature: (Signed) JAMES T. WALDRON. OFFICERS AND NEGOTIATING COMMITTEE OF LOCAL UNION #2851, (Signed) PHILIP BUTLER, (Signed) JAMES GUERRINI, (Signed) EDWARD MEDEIROS, UNITED STEELWORKERS OF AMERICA, C. I. O. JOHN L. CLEMMEY COMPANY, INC. 615 Sometime in the early part of January 1956, Beattie was advised by Butler of the signing of the above agreement by the committee for Local 2851 . Shortly there- after the Union filed the charge upon which the complaint herein is predicated. After filing the charge Beattie wrote Attorney Waldron on January 17, 1956, the following letter: CLARKIN AND WALDRON, January 17, 1956. Fall River National Bank Building, Fall River, Mass. Attention : Mr. JAMES T. WALDRON. DEAR MR. WALDRON: As I have not heard from you regarding a date to continue negotiations between J. L. Clemmey Co. Inc. and the United Steel- workers of America, I am writing to you for this purpose. I would suggest meeting at your office or at the office of the United Steelworkers of America for the sake of convenience. Hoping to hear from you immediately as to a date , time and place to continue said negotiations, I am Very truly yours, (Signed ) James A. Beattie, JAMES A. BEATTIE , Representative. UNITED STEELWORKERS OF AMERICA , AFL-CIO. JAB: GB Registered Mail # 121389. Return Receipt Requested. Waldron replied to Beattie's letter on January 24, 1956. In his letter Waldron called Beattie's attention to signing of the above agreement and further stated that he saw no need for further negotiations. On January 25, 1956, Beattie replied to Waldron's letter of the 24th, in which he disavowed the action of Local 2851 , and again requested that negotiations for the contract of 1956-57 be resumed. Insofar as this record is concerned there were no further communications between the Union and the Respondent . Nor is there any evidence that either the Union or the Respondent made any further effort to resume negotiations for an agreement for the year February 4, 1956, to February 4, 1957. Conclusion It has been well said that hard cases make bad law . Such is the situation herein. Here we have a set of facts that are unique to say the least. In order to understand the action of the committee for Local 2851 and the Respondent in entering into the agreement on December 23, 1955, we must first look to the past . It must be remem- bered that a somewhat similar situation arose in December 1951, when Local 2851 negotiated an agreement with the Respondent for the year February 4, 1952, to February 4, 1953. At that time there was no representative of the Union present at the time of the negotiations and when the agreement was signed . Moreover the record shows that even though the Union was recognized as the exclusive bargaining representative of the Respondent 's employees , and named in the agreement as one of the contracting parties, no responsible representative of the Union ever signed this particular agreement . To be sure the president of Local 2851 talked to Rusbino, the Union's representative, during the course of the negotiations over the phone and received his approval for whatever action the committee deemed best for the membership of the local . In the instant case Beattie , the Union's repre- sentative , not only refused to approve the committee 's suggestion that negotiations be resumed before Christmas so that they could receive their accustomed Christmas bonus, but also refused to even come to the Respondent 's plant and discuss this issue. His reasons for taking this position have been set forth above, and will not be reiterated here. Suffice it to say that the record shows that Beattie reasoned that it was unnecessary because the agreement then in effect did not expire until February 4, 1956, and there was ample time for the Union to negotiate an agree- ment with the Respondent that was more in keeping with the proposals he submitted to the Respondent on December 19, 1955. There is no question as to the Union 's status as the exclusive bargaining agent for the Respondent 's employees in the appropriate unit. Nor is there any question that it represented a majority of the employees in the appropriate unit at all times material herein, and the parties so stipulated at the hearing herein. In the circumstances described above the Trial Examiner is convinced and finds that the Respondent was under a statutory duty to bargain with the Union as the exclusive bargaining representative of its employees, and that by entering into an 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreement with Local 2851 without the express approval of the Union it violated Section 8 (a) (5) and (1) of the Act. From a legal standpoint the position of the Respondent is in some respects similar to that of the employer in the Borg- Warner case recently decided by the United States Court of Appeals for the Sixth Circuit.1° In the considered opinion of the Trial Examiner the court's dictum in the cited case is appropos to the legal issues involved herein. Consequently excerpts therefrom follow below: The Board contends that to permit an employer "to go behind the designated representatives in order to bargain with the employees themselves" would undermine the representative status of the Union contrary to the provisions of Section 9 (a) of the Act which provides that the representatives selected by the majority of the employees "shall be the exclusive representatives of all the employees" in the bargaining unit. Medo Photo Supply Corp. v. N. L. R. B., 321 U. S. 678, 684, 685, 687; May Department Stores Co. v. N. L. R. B., 326 U. S. 376, 383, 384. In Medo Photo Supply Corp. v. N. L. R. B., the Court held that orderly collective bargaining requires that the employer be not per- mitted to go behind the designated representatives, in order to bargain with the employees themselves, even though the employees asked that the desig- nated representatives be disregarded; that the duty of the employer to bargain collectively with the chosen representatives of his employees also involves "the negative duty to treat with no other." . . The Company attempts to justify its position by pointing out that it at all times recognized the Union as the exclusive bargaining agent and did all of its bargaining with it as such agent. It contends that there is nothing in the Act which requires that after all issues have been agreed upon the written contract embodying the agreement must be made with the agent who negotiated the agreement. Although there is no specific provision to that effect, we believe it is clearly implied that the designated bargaining agent is the party with whom the contract is to be made unless it voluntarily relinquishes such right in favor of another. The collective bargaining contract is not the con- tract of employment. It is rather the trade agreement which controls the individual contracts of employment. J. I. Case Co. v. N. L. R. B., 321 U. S. 332. It is a strained construction of the Act to say that the party representing the employees and negotiating such a trade agreement for their benefit is not entitled to complete the job by having the contract which it has negotiated executed with it as the representative of the individual employees for whom it is acting. Such a contract is necessarily executed with a representative of the individual employees. We fail to see the reasoning which would authorize the substitution of the Local, not the official representative of the employees, for the Union which is the official representative of the employees, over the objections of the Union. The fact that the Union offered to share this right with its Local did not give the Company the right to insist that it relinquish the right completely. The Company was not within its rights in insisting upon its proposal pertaining to this phase of the case. [Emphasis supplied.] Let us now look at the other side of the coin and consider the position of the Respondent at the time it entered into the agreement with Local 2851. It must be remembered that in December 1951 a somewhat similar situation arose and it was Local 2851 who negotiated and signed the agreement. Moreover, no repre- sentative of the Union ever signed it, and there is no evidence in the record that any responsible official of the Union ever at any time lodged a protest with either the Board or the Respondent in this regard. To be sure Rusbino gave the officer of the local permission to negotiate and sign the agreement providing that it satis- fied the membership of Local 2851, since, as he put it, they, in the final analysis, were the ones to be satisfied. When one considers this background in the light of the events of the week of December 19, 1955, and in particular the refusal of President Clemmey to negotiate with the officers of Local 2851 without a represent- ative of the Union being present, when they requested him to do so on December 21, 1955, despite the fact that they coupled their request with their assurance that the Respondent would be held harmless in the event of any controversy over the matter, it becomes most difficult to find an element of bad faith on the part of the Respondent during the whole affair. Again it must be remembered that President Clemmey suggested to the committee at the time that they get in touch with Beattie 10 See N. L. R. B. v. Wooster Division of Borg-Warner Corporation ; International Union, United Automobile , Aircraft and Agricultural Implement Workers of America, UAW-CIO v. N. L. It. B., 236 F. 2d 898 (C. A. 6). JOHN L. CLEMMEY COMPANY, INC. 617 and inform him of the situation. He also assured the committee that he would get in touch with the Respondent's attorney, James T. Waldron, and advise him of the situation commenting at the time that it was up to Waldron and Beattie to work out and negotiate an agreement. Again it must be remembered that Butler, president of Local 2851, called Beattie on the night of December 22, 1955, and informed him of the situation in the plant and the unrest among the membership of the local. Beattie's reaction has been set forth above and will not be restated. Suffice it to say that Beattie's refusal to participate in the negotiation proposed by Butler was never communicated to either President Clemmey or Attorney Waldron at the time the local and the Respondent entered into the negotiations and signed the agreement in question on December 23, 1955. In the opinion of the Trial Examiner Butler's failure to inform either President Clemmey or Attorney Waldron of Beattie's attitude towards the whole affair is of the utmost importance. This is so because President Clemmey specifically asked Butler in substance if he knew what he was doing and the consequences thereof when the agreement in question was presented to the committee of Local 2851 for their signatures. After Butler assured President Clemmey that he was aware of the seriousness of the committee affixing their signatures to the agreement, President Clemmey signed the agreement. When one considers all of the foregoing plus the fact that there is not a scintilla of evidence in the record that the Respondent herein has ever at any time since the advent of contractual relations with the Union exhibited any antipathy either towards the Union or collective bargaining in general, it becomes increasingly diffi- cult -to reach an equitable and honest solution to the problem before us especially in view of the Trial Examiner's finding that the Respondent's conduct was violative of Section 8 (a) (5) and (1) of the Act. Neither is there any evidence in the record that the Respondent has ever at any time in the past exhibited hostility towards its employees who are members of the Union nor engaged in any course of conduct that tended in any manner to interfere with the rights guaranteed them in Section 7 of the Act. After long and careful consideration and in view of the extenuating circumstances described and found above, the Trial Examiner is convinced that despite the fact that he has found a technical violation of Section 8 (a) (5) and (1) of the Act, this is the type of case that should be dismissed. His reasoning in this regard is predicated on the theory that assuming that he would recommend the usual cease- and-desist order and that the Respondent bargain with the Union upon request, what useful purpose would be served? Would such a recommendation, in view of all the circumstances described and found above, effectuate the policies of the Act? In the considered opinion of the Trial Examiner the answer is no. Again he is convinced that in view of the past relationship between the parties they are in a better position to resolve their own problems, and that the issuance of the usual order in cases of this nature would hinder rather than effectuate the policies of the Act. The Trial Examiner has given this case long and careful consideration. He has not reached his conclusion herein lightly, but he is convinced that this case should be dismissed and it will be so recommended below. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, set forth in section III, above, occurring in connection with the operations of the Respondent, described in section I, above, technically have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States but did not tend to lead to labor disputes burden- ing and obstructing commerce and the free flow of commerce for the reasons stated in the Trial Examiner's conclusionary findings set forth immediately above. V. THE REMEDY Although the Trial Examiner has found that the Respondent's conduct described in section III, above, was technically violative of the Act, he has nevertheless, for reasons stated in his conclusionary findings, recommended that the complaint herein be dismissed because he is convinced that the issuance of a cease-and-desist order, when considered in the light of all the circumstances, would not effectuate the policies of the Act but would on the other hand have an adverse effect on the rela- tionship between the parties and thus contribute nothing towards industrial peace, he therefore will recommend that the complaint herein be dismissed in its entirety. Upon the basis of the foregoing findings of fact, and upon the entire record, he makes the following: 618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2 (5) of the Act. 2. All employees of Respondent employed at its Mansfield plant, exclusive of office clerical employees, timekeepers , watchmen, and all supervisors as defined in Sec- tion 2 ( 11) of the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. The Union was on December 23, 1955, and on January 24, 1956, and at all times material herein , and now is, the exclusive representative of all the employees in the above-described unit for the purposes of collective bargaining within the mean- ing of Section 9 (a) of the Act. 4. By refusing on January 24, 1956, and at all times thereafter , to bargain with the Union as the exclusive representative of the employees in the above -described unit, for the reasons stated above in section III of this report, the Respondent tech- nically has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) and derivatively Section 8 (a) (1) of the Act. 5. For the reasons stated above the aforesaid unfair labor practices are not unfair labor practices that have nor do not now affect commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] Martel Mills Corporation and United Textile Workers of America, AFL-CIO. Case No. 11-CA-961. July 11, 1957 DECISION AND ORDER On November 9, 1956, Trial Examiner Henry S. Sahm issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the In- termediate Report attached hereto. Thereafter, the Respondent filed exceptions and a supporting brief. The Board 1 has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed with the exception noted in the margin below.' The Board has considered the Intermediate Report, the ex- ceptions, the supporting brief, and the entire record in this case, and adopts the Trial Examiner's findings and conclusions to the extent that they are consistent with the findings and conclusions herein made. 1 Pursuant to the provisions of Section a iu) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Mem- bers Rodgers, Bean, and Jenkins]. 2 After the close of the hearing the General Counsel moved to "correct" the transcript in respect to certain testimony of witness Revis. The transcript shows that Revis testified concerning the egg-hurling incident, which is described in the Intermediate Report, that Supervisor Hughes told employees engaged therein "to report to him." The General Counsel asked that the transcript be "corrected" to read that Supervisor Hughes told the em- ployees "to pour it to 'em," and the Trial Examiner granted the motion. (See Intermediate Report, footnote 11.) In finding that the Respondent violated the Act, we do not rely in any way on the testimony of Revis in this respect, either as it actually appears in the transcript, or as "corrected" by the Trial Examiner's ruling. Hence, we do not deem it necessary to decide whether the Trial Examiner's ruling in "correcting" the record was proper. 118 NLRB No. 75.