Imperial Wire Co., Inc.

IMPERIAL WIRE COMPANY, INC. 775 Imperial Wire Company, Inc. and International Union of Electri- cal, Radio, and Machine Workers, AFL-CIO, Charging Party Magnet Wire Workers Union, Inc. and International Union of Electrical, Radio, and Machine Workers, AFL-CIO, Charging Party. Cases Nos. 13-CA-2189 and 13-CB-447. July 19, 1957 DECISION AND ORDER On November 6, 1956, Trial Examiner Earl S. Bellman issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had not engaged in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report at- tached hereto. Thereafter the General Counsel filed exceptions and a brief, and the Respondent Employer filed a brief in support of the Intermediate Report. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions, the briefs, and the entire record in these cases, and, finding merit in the exceptions, hereby adopts the findings and conclusions of the Trial Examiner only to the extent consistent herewith : 1. The complaint alleged that the Respondents violated Section 8 (a) (1), (2), and (3), and Section 8 (b) (1) (A) and 8 (b) (2) by executing a contract covering the Employer's employees which ac- corded new employees only 6 days in which to join the Union. The evidence shows, as set forth in the Intermediate Report, that the Respondents executed a contract on November 7, 1955, which contained the following union-security clause : ARTICLE III. All present employees who are not members of the Union on the effective date of this provision and all employees who are hired hereafter shall become and remain members of the Union in good standing as a condition of employment on or after the 6th calendar day following the beginning of their employ- ment or on or after the 31st day following the effective date of this provision whichever is the later. This provision shall be made and become effective under the provisions of the National Labor Relations Act, but not retroactively. [Emphasis supplied.] The contract also contained a 30-day probation clause, and a severabil- ity clause. The entire contract was posted in the plant on November 8, 1955, along with a notice informing the employees that "This is now a union shop-Please Refer to Article III of the Contract." 118 NLRB No. 94. 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Trial Examiner found, and we agree, that article III of the contract failed to accord all new employees 30 days in which to join the Union, as required by the Act. The Respondents contended, how- ever, that the unlawful provision was included in the contract by mistake, and that the contract should be interpreted as providing a 60-day grace period for new employees as allegedly intended by the parties. The Trial Examiner found that the inclusion of the 6-day provision represented a mistake in writing down what the parties had agreed to, and that the parties had intended to provide at least the 30 days required by the Act. He concluded that the contract, as in- tended by the parties, contained no illegal union-security provision, and recommended that this allegation of the complaint be dismissed. The General Counsel excepts on the ground, among others, that the evidence fails to establish the existence of a mistake. Godfrey Strack, an officer of the Union, a member of the negoti- ating committee, and a signatory to the contract, was the only witness who testified to the circumstances surrounding the execution of the contract and the parties' intent as to the provision in issue. Al- though he testified credibly that the Union did not intend to provide a 6-day grace period for new employees, his further testimony, and the evidence as a whole, is, as indicated by the Trial Examiner, too confused to permit any conclusion as to what grace period the Union (lid in fact intend. Thus Strack, who admittedly did not know the Act required a 30-day grace period, testified variously that the grace period intended for new employees was 61 days, 60 days, and 30 days. Moreover, the record contains no evidence establishing mistake on the part of the Employer. Strack was not qualified, nor did he at- tempt to testify, as to the Employer's understanding of article III; no representative of the Employer testified; and there is no evidence of any statement by any representative of the Employer, or any discussion by the parties, with regard to the provisions of article III. As far as appears in this record, .therefore, the Employer could un- mistakenly have accepted as part of the parties' agreement the 6-day grace period for new employees, as set forth on the face of the draft presented by the Union. Although the Board has held that the execution and publication of a contract which mistakenly contained an illegal discriminatory provision did not violate either Section 8 (a) (3) or 8 (b) (2),1 the record in that case appears to have contained clear and convincing evidence that the intent of both parties was to execute a contract con- taining a specific lawful seniority provision but, because of a mutual mistake, the published version of the contract contained an illegal I Monolith Portland Cement Company, 94 NLRB 1358 , at 1361-1365, holding, contrary to the conclusion of the Trial Examiner, herein, that the publication of such a contract nevertheless violated Section S (a) (1) and ( 2) and 8 (b) (1) (A). IMPERIAL WIRE COMPANY, INC. 777 discriminatory provision. In the instant case, however, the evidence, as set forth above, fails by even a preponderance of the evidence to establish either the existence of a mutual mistake,' or what specific lawful provision the Respondent Union may have intended to in- corporate in the contract. Under these circumstances, we conclude that the Board's decision in the Monolith case, supra, is inapplicable, and that, in the absence of clear and convincing evidence of mutual mistake, the parties must be presumed to have intended the clear, unambiguous meaning of the provisions of their contract 3 We there- fore find, in accordance with established Board precedent, that the Respondent Employer, by executing, publishing, and maintaining in existence a contract containing a union-security clause which was unlawful on its face and therefore had the necessary effect of coercing the employees to become members of the Union within less than the statutory grace period, thereby giving unlawful support to the Union, violated Section 8 (a) (1), (2), and (3) of the Act; and that the Respondent Union, by maintaining in existence such an unlawful contract, violated Section 8 (b) (1) (A) and 8 (b) (2) 4 2. Earl Chamberlain, an employee who had been employed prior to the execution of the contract and who was not a member of the Union, was discharged by the Employer at the request of the Union on December 22, 1955, 45 days after the effective date of the contract, for refusing to join the Union after repeated requests to do so by both the Union and the Employer. It is clear that this conduct by the Respondents was violative of the Act, as the complaint alleges, unless it was protected by a valid union-security clause. As found above, one of the provisions of the clause exceeded the limited form of union security permitted by Section 8 (a) (3) of the Act, and was therefore unlawful. The Respondents contend, how- ever, that the unlawful provision was severable from the requirement in the same clause, that employees who were not members on the effective date of the contract be allowed 31 days in which to join the Union, thus leaving the latter portion of the union-security clause, under which Chamberlain was discharged, available as a defense to his discharge. We do not agree. z See Restatement of Contracts , Sec. 511, stating that "It is essential in order to obtain a decree rescinding or reforming a written . . . contract . . . for mistake, that the facts necessary for the allowance of the remedy shall be proved by clear and convincing evidence and not by a mere preponderance." 3 See Heating, Piping and Air Conditioning Contractors New York City Association, Inc., 102 NLRB 1646. * Associated Machines, Inc., 114 NLRB 390; City Window Cleaning Company , 114 NLRB 906; Henry Heide, Inc., 107 NLRB 1160 ; Heating, Piping and Air Conditioning Contractors New York City Association, Inc., supra; Julius Resnick, Inc., 86 NLRB 38; International Union United Mine Workers of America , et at., 83 NLRB 916 . As the Respondent Union was not served with a copy of the charge herein until more than 6 months after the con- tract was executed and published, we find no violation with respect thereto by the Union. 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The instant case is clearly distinguishable from those cases where the Board and courts have found illegal union-security clauses to be severable.5 Thus, unlike the unlawful provisions in the cited cases pertaining to transfers of employees or the payment of assessments, the requirement that new employees join the Union-found unlawful here because such employees were given only 6 days-is basic to the whole scheme of a union-shop contract; without it, a principal pur- pose of such a contract cannot be achieved. Moreover, the unlawful provision as to new employees in this case is not a single, contiguous clause, phrase, or sentence, separately located in the contract; on the contrary, its terms are interspersed among the lawful provisions to such an extent that severance would require carving three separately located clauses out of a single sentence. Under these circumstances, we conclude that the basic unlawful provision affecting new employees is so interwoven with the remaining union-security provisions that the clause must stand or fall as an entirety, and that the provision under which Chamberlain was discharged cannot therefore be severed from the unlawful provision; s consequently, the contract is not avail- able as a defense to Chamberlain's discharge. Accordingly, we find that the Respondent Employer discrimina- torily discharged Chamberlain in violation of Section 8 (a) (3) and (1) of the Act, and that the Respondent Union caused Chamberlain's discharge in violation of Section 8 (b) (2) and 8 (b) (1) (A) of the Act. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth above, occurring in connection with the-operations of the Respondent Employer set forth in section I of the Intermediate Report, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY Having found that the Respondents engaged in the unfair labor practices set forth above, we shall order that they cease and desist therefrom and that they take certain affirmative action designed to effectuate the policies of the Act. 1. We have found that the Respondent Employer violated the Act by executing, publishing, and maintaining a collective-bargaining agreement containing an unlawful union-security clause, and by dis- criminating against Chamberlain pursuant to such unlawful clause, 6 See Sinclair Refining Company, 115 NLRB 380 ; and N . L. R. B. v. International Association of Machinists ( General Dynamics Corp.), 241 F. 2d 695 ( C. A. 9). 6 Cf. N. L. R. B. v. Rockaway News Supply Company, 345 U. S. 71. IMPERIAL WIRE COMPANY, INC. 779 and that the Respondent Union violated the Act by maintaining such an unlawful agreement and by causing the discrimination against Chamberlain. In accordance with the Board's established policy in such cases, where the Union has been illegally assisted by the co- ercion of and discrimination against employees, we shall order the Respondent Employer to withdraw recognition from the Respondent Union as the collective-bargaining representative of its employees and to cease giving effect to its contract with the Respondent Union unless and until the Respondent Union shall have been certified by the Board.' Nothing in this order, however, shall be construed as requiring the Respondent Employer to abandon those wage, hour, seniority or other lawful substantive features of the relationship be- tween the Respondent Employer and its employees which may have been established pursuant to the aforesaid agreement. 2. We have found that the Respondent Employer discriminated against Earl Chamberlain and that the Respondent Union caused such discrimination. At the hearing the General Counsel amended the complaint to reflect the agreement of the parties that Chamberlain was unconditionally offered reinstatement to his old position on July 16, 1956, but refused. We shall therefore order that the Respondent Company and the Respondent Union jointly and severally make Cham- berlain whole for any loss of pay suffered as a result of the discrimi- nation against him from the date of the discrimination until July 16, 1956. Back pay shall be computed in a manner consistent with the Board's policy set forth in F. W. Woolworth Company, 90 NLRB 289. We shall also order the Respondent Employer to make available to the Board, upon request, payroll and other records to facilitate the checking of the amount of back pay due. In view of the nature of the unfair labor practices committed, the commission of similar and other unfair labor practices reasonably may be anticipated. We shall therefore order that the Respondents cease and desist from in any manner infringing upon rights guaran- teed to employees by Section 7 of the Act. Upon the basis of the foregoing and the entire record in these cases, the National Labor Relations Board hereby rejects the Trial Examiner's conclusion of law No. 3 and in its stead makes the following additional conclusions : CONOLusIONS OF LAW 3. By executing, publishing, and maintaining the unlawful union- .security provision in its collective-bargaining agreement with the Union, the Respondent Employer has engaged in and is engaging in 7 See Julius Resnick, Inc., 86 NLRB 38. 780 DECISIONS • OF NATIONAL LABOR RELATIONS BOARD unfair labor practices within the meaning of Section 8 (a) (1), (2), and (3) of the Act. 4. By maintaining in existence during the times material hereto the unlawful union-security provision in its contract with Employer, the Respondent Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) and 8 (b) (2) of the Act. 5. By discriminatorily discharging Earl Chamberlain, the Re- spondent Employer has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act. 6. By causing the Employer discriminatorily to discharge Earl Chamberlain, the Respondent Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) and 8 (b) (2) 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. ORDER Upon the entire record in these cases, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Re- lations Board hereby orders that : 1. The Respondent, Imperial Wire Company, Inc., New Haven, Indiana, and its officers, agents, successors, and assigns, shall: (a) Cease and desist from : 1. Encouraging membership in Respondent Magnet Wire Workers Union, Inc., by discriminating against employees in regard to their hire or tenure of employment or any term of condition of employment, except to the extent permitted by Section 8 (a) (3) of the Act. 2. Interfering with, assisting, or contributing support to Magnet Wire Workers Union, Inc. 3. Recognizing Magnet Wire Workers Union, Inc., or any successor thereto, as the representative of any of its employees for the purpose of dealing with the Respondent Employer with respect to rates of pay, wages, hours of employment or other conditions of employment, unless and until said organization shall have been certified as such repre- sentative by the Board. 4. Performing, enforcing, or giving effect to its collective-bargain- ing agreement of November 7,1955, with Magnet Wire Workers Union, Inc., or entering into or enforcing any extension, renewal, modification, or supplement thereof, or any superseding collective-bargaining agreement with the said labor organization, unless and until said labor organization shall have been certified by the Board. IMPERIAL WIRE COMPANY, INC. 781 5. In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement permitted by Section 8 (a) (3) of the Act. (b) Take the following affirmative action which the Board finds will effectuate the policies of the Act : 1. Withdraw and withhold all recognition from Magnet Wire Workers Union, Inc., as the representative of any of its employees for the purpose of dealing with the Respondent Employer with respect to rates of pay, wages, hours of employment, or other conditions of employment unless and until said organization shall have been certi- fied as such representative by the Board. 2. Jointly and severally with Respondent Magnet Wire Workers Union, Inc., make Earl Chamberlain whole in the manner set forth in the section herein entitled "The Remedy." 3. Preserve and make available to the Board or its agents upon request, for examination and copying, all payroll records, social- security-payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of back pay due under the terms of this Order. 4. Post at its plant in New Haven, Indiana, copies of the notice attached hereto marked "Appendix A." 8 Copies of said notice, to be furnished by the Regional Director for the Thirteenth Region, shall, after being duly signed by the Respondent Employer's representative, be posted by it immediately upon the receipt thereof, and maintained by it for 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 Employer to insure that said notices are not altered, defaced or covered by other material. 5. Notify the Regional Director for the Thirteenth Region, in writ- ing, within ten (10) days from the date of this Order, as to what steps the Respondent Employer has taken to comply herewith. II. The Respondent Magnet Wire Workers Union, Inc., its officers, representatives, agents and assigns shall : (a) Cease and desist from : 1. Causing or attempting to cause the Respondent Employer, Im- perial Wire Company, Inc., to discriminate against employees in regard to their hire or tenure of employment or any term or condition of employment, except to the extent permitted by Section 8 (a) (3) of the Act. 2. Performing, enforcing, or giving effect to its collective-bargain- ing agreement of November 7, 1955, with the Respondent Employer, 8In the event that this Order is enforced by a decree of the United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" in the caption the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." 782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or entering into or enforcing any extension, renewal, modification, or supplement thereof, or any superseding collective-bargaining agree- ment with the Respondent Employer, unless and until the Respondent Union shall have been certified by the Board. 3. In any other manner restraining or coercing employees of Im- perial Wire Company, Inc., in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement permitted by Section 8 (a) (3) of the Act. (b) Take the following affirmative action which the Board finds will effectuate the policies of the Act : 1. Jointly and severally with Respondent, Imperial Wire Com- pany, Inc., make Earl Chamberlain whole in the manner set forth in the section herein entitled "The Remedy." 2. Post at its office in New Haven, Indiana, and all locations where notices to members are customarily posted, copies of the notice at- tached hereto marked "Appendix B." 9 Copies of said notice, to be fur- nished by the Regional Director for the Thirteenth Region, shall, after being duly signed by a representative of the Respondent Union, be posted by it 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 members are customarily displayed. Reasonable steps shall be taken by Respondent Union to insure that said notices are not altered, defaced, or covered by other material. 3. Mail to the Regional Director of the Thirteenth Region signed copies of the notice attached hereto marked "Appendix B" for posting by the Respondent Employer, the latter willing, in its plant at New Haven, Indiana, for sixty (60) consecutive days in places where no- tices to employees are customarily published. 4. Notify the Regional Director for the Thirteenth Region, in writ- ing, within ten (10) days from the date of this Order, as to what steps the Respondent Union has taken to comply herewith. MEMBER MURDOCK, dissenting in part: I would find, as the Trial Examiner did, that the provision for a 6-day grace period was included in the contract as a result of a mutual mistake, and that the parties intended to provide a statutorily per- missible period. •Strack testified that the Union did not intend to provide only a 6-day grace period for new employees but intended to provide a statutorily permissible period. The Employer agrees that this is so, asserting in its brief that the figure "6th" in article III was inserted by mistake, whereas the parties to the agreement intended the figure -to be "60th." It is thus mutually agreed by the parties that the figure 6 was inserted by mistake, and the majority is in error in 9 See footnote 8, supra. IMPERIAL WIRE COMPANY, INC. 783 asserting that there is nothing to show that the Employer did not intend a 6-day grace period. Also supporting the conclusion that this was a mistake is the fact that the contract contained other errors of draftsmanship, the fact that the parties amended the provision to pro- vide for a 60-day grace period immediately after the "6th" day pro- vision was brought to their attention,10 the 30-day provision in the probationary clause of the contract, and the parties' failure to enforce the provision in question. Accordingly, while I would hold under the precedents that the publication of the provision in question was a violation of Section 8 (a) (1) and Section 8 (b) (1) (A), despite the mistake, I would not hold, as the majority does, that there was a violation of Section 8 (a) (3) and Section 8 (b) (2).11 Moreover, as there was no attempt to utilize the provision in question, I would not find, as the majority does, that there was a violation of Section 8 (a) (2)." As the mistaken inclusion of the provision in question was not vio- lative of Section 8 (a) (3), and as Chamberlain's discharge was other- wise lawful under the valid 30-day grace period for old employees, I would also dismiss the allegations of the complaint that the Employer discharged Chamberlain in violation of Section 8 (a) (3) and (1), and that the Union caused Chamberlain's discharge in violation of Sections8 (b) (2) and8 (b) (1) (A). Finally, in view of the fact that'the parties committed only a tech- nical violation of the Act in publishing the clause with the mistake in it, which they themselves have already remedied by amending the provision in question to provide for a lawful 60-day grace period, I would find it unnecessary to issue any remedial order herein. CHAIRMAN LEEDOM and MEMBER BEAN took no part in the consider- ation of the above Decision and Order. "It is also reasonable to presume that the Employer would not seek a grace period shorter than that sought by the Union, or shorter than the 30 -day period provided for as a probationary period for new employees. 11 Monolith Portland Cement Company, 94 NLRB 1358 . I disagree with the majority's Section 8 ( b) (2) finding for the reasons stated in my partial dissenting opinion in the Monolith case. 12 Jandel Furs, 100 NLRB 1390. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT encourage membership in Magnet Wire Workers Union, Inc., by discriminating against our employees in regard to their hire or tenure of employment or any term or condition of 784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employment, except to the extent permitted by Section 8 (a) (3) of the Act. WE WILL NOT interfere with, assist, or support Magnet Wire Workers Union, Inc. WE WILL NOT recognize Magnet Wire Workers Union, Inc., or any successor thereto, as the representative of any of our em- ployees for the purpose of negotiating with us with respect to rates of pay, wages, hours of employment, or other conditions of employment unless and until said labor organization shall have been certified as such representative by the Board. WE WILL NOT perform, enforce, or give effect to our collective- bargaining agreement of November 7, 1955, with Magnet Iron Workers, Inc., or enter into or enforce any extension, renewal, modification, or supplement thereof, or any superseding agree- ment with the said labor organization, unless and until said labor organization shall have been certified by the Board. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement permitted by Section 8 (a) (3) of the Act. WE WILL jointly and severally with Magnet Wire Workers Union, Inc., make Earl Chamberlain whole for any loss of pay he may have suffered as a result of the discrimination against him. All our employees are free to become or remain, or to refrain from becoming or remaining, members of any labor organization except to the extent that this right may be affected by an agreement conforming to the provisions of Section 8 (a) (3) of the National Labor Relations Act. We will not discriminate in regard to hire or tenure of employ- ment, or any term or condition of employment, against any employee because of membership in or activities on behalf of any such labor organization. IMPERIAL WIRE 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. APPENDIX B NOTICE TO ALL MEMBERS OF MAGNET WIRE WORKERS UNION, INC., AND TO ALL EMPLOYEES OF IMPERIAL WIRE COMPANY, INC. 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 notify you that : IMPERIAL WIRE COMPANY, INC. 785 WE WILL NOT cause or attempt to cause Imperial Wire Com- pany, Inc., to discriminate against its employees in regard to their hire or tenure of employment or any term or condition of employment, except to the extent permitted by Section 8 (a) (3) of the Act. WE WILL NOT perform, enforce, or give effect to our collective- bargaining agreement of November 7, 1955, with Imperial Wire Company, Inc., or enter into or enforce any extension, renewal, modification, or supplement thereof, or any superseding collective- bargaining agreement with that Company unless and until we shall have been certified by the Board. WE WILL NOT in any other manner restrain or coerce employees of Imperial Wire Company, Inc., in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement permitted by Section 8 (a) (3) of the Act. WE WILL jointly and severally with Imperial Wire Company, Inc., make Earl Chamberlain whole for any loss of pay he may have suffered as a result of the discrimination against him. MAGNET WIRE WORKERS UNION, INC., Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date of posting, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge and a first amended charge in Case No. 13-CA-2189, and a charge in Case No. 13-CB-447, all duly filed 1 by International Union of Electrical, Radio & Machine Workers, AFL-CIO, herein called the Charging Union, the General Counsel of the National Labor Relations Board, herein called, respectively, the General Counsel and the Board ; by the Regional Director for the Thirteenth Region (Chicago, Illinois ), issued a consolidated complaint herein, dated July 12, 1956, against Imperial Wire Company, Inc., herein called the Respondent Company, and against Magnet Wire Workers Union , Inc., herein called the Respondent Union, having simultaneously issued, on July 12, an order consolidating Cases Nos. 13-CA-2189 and 13-CB-447, and also a notice of consolidated hearing thereon. The consolidated complaint alleged that the Respondent Company had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1), (2 ), and (3 ), and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136 , herein called the Act, and that the Respondent Union had engaged in and was engaging in unfair labor practices affecting commerce , within the meaning of Section 8 (b) (1) (A) and (2), and Section 2 (6) and (7) of the Act. Copies of the three charges and the consoli- 1The charge in Case No. 13-CA-2189 was filed on March 15, 1956, and the first amended charge therein on May 11. The only charge in Case No. 13-CB-447 was filed on May 11, 1956. The evidence shows that each of the foregoing charges was received by the respondent involved on the day following the filing of said charge. 450553-58-vol. 118-51 786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dated complaint, together with the notice of hearing, were duly served upon the Respondent Company, the Respondent Union, and the Charging Union. With respect to the unfair labor practices pertaining to the Respondent Union, the consolidated complaint alleged, in substance that: (1) On or about December 19, 1955, the Respondent Union "wrongfully and unlawfully requested and de- manded" that the Respondent Company discharge its employee, Earl Chamberlain, under the terms and provisions of article III of a collective-bargaining contract, which it had executed with the Respondent Company on November 7, 1955; (2) the Respondent Union, by entering into its contract containing the aforesaid article Iil, and by demanding Chamberlain's discharge thereunder, had restrained and coerced employees of the Respondent Company in the exercise of rights guaranteed in Section 7 of the Act, thereby engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act; and (3) the Respondent Union thereby had "attempted to and did cause" the Respondent Company "to discrimi- nate against its employees in violation of Section 8 (a) (3)," thereby engaging in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. Regarding the unfair labor practices pertaining to the Respondent Company, the consolidated complaint alleged, in substance that: (1) On or about December 27, 1955, the Respondent Cc.npany discharged employee Chamberlain under the terms and provisions of the aforesaid article III of its contract, and thereafter refused to reinstate the said Chamberlain; (2) the Respondent Company, by entering into its contract containing the aforesaid article III, and by discharging Chamberlain pursuant thereto and refusing to reinstate him, interfered with, restrained, and coerced its employees, in violation of Section 8 (a) (1) of the Act; (3) by the aforesaid acts, the Respondent Company discriminated in regard to hire, tenure, and terms and conditions of employment, in violation of Section 8 (a) (3) of the Act; and (4) by the aforesaid acts, the Respondent Company "did interfere with and support, and is interfering with, and supporting the Respondent Union," in violation of Section 8 (a) (2) of the Act. The only answer filed to the consolidated complaint was an answer filed by the Respondent Company on August 24, 1956.2 Said answer admitted the allegations of the complaint pertaining to the business and commerce of the Respondent Com- pany, the labor organization status of the Respondent Union and of the Charging Union, and the execution of the contract on November 7, 1955, containing article III. Said answer of the Respondent Company denied the commission of any of the alleged unfair labor practices, and further set forth several paragraphs of allegations pertaining to various defenses discussed hereinafter. It should be noted at this point, however, that said answer alleged that the figure "6th" which appears in article III of its contract was inserted therein "by mistake," that its insertion was "an error in transcription," and that "the parties thereto meant and intended the figure to be `60th.' " Pursuant to an order duly rescheduling the hearing, a hearing was held in Fort Wayne, Indiana, on August 29, 1956, before me, the Trial Examiner duly designated by the Chief Trial Examiner. The General Counsel and the Respondent Company were represented by counsel, the Respondent Union by the chairman of its board of directors, and the Charging Union by an international representative.3 All parties participated throughout the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. At the opening of the hearing, a motion by the General Counsel to amend paragraph 10 of the complaint was granted without objection. Said amendment, in conjunction with subsequently stated agreement among the parties, has the effect of fixing July 16, 1956, as "a cut-off date" with respect to such discrimination as is alleged against Chamberlain? Before witnesses were called, counsel for the Re- 2 The General Counsel makes no contention based on the date of the filing of the answer by the Respondent Company. Nor does the General Counsel make any contention based on the failure of the Respondent Union to file any answer whatsoever. It should be noted that Godfrey F. Strack, presently the "Chairman of the Board of Directors" of the Respondent Union and its representative at the hearing in the instant matter, testified that "our attorney," John Kenny, "has had a serious operation, and he is very, very ill." 3 The appearance stated on the record by the Charging Union for Benjamin Sigal, who was not present at the hearing, was for the purpose of the filing of briefs. 4 Before the close of the hearing, it was agreed on the record that on July 16, 1956, the Respondent Company unconditionally offered to reemploy Chamberlain "at his old position," and that Chamberlain "did not accept the offer of reinstatement." IMPERIAL WIRE COMPANY, INC. 787 spondent Company, stating that he thought that "the legality of Article III of the contract . . . was the only real matter at issue in this hearing," moved to strike from the complaint certain paragraphs thereof which he viewed as having "to do mainly with company domination and the usual charges of that nature," because he had understood that "we were not going to consider those matters at this time, and that those charges had been dropped." The General Counsel thereupon made an explanation to the effect that his "whole theory" of the 'case hinged upon the inclusion in article III of the "6th calendar day" provision with respect to new employees, and the discharging of Chamberlain pursuant to said article III, and that no issue or allegation was "intended as to company domination." Following the General Counsel's statement of his theory of the case, counsel for the Re- spondent Company withdrew his motion. At the conclusion of his case, the Gen- eral Counsel moved to conform the pleadings to the proof, which motion was granted, without objection, as to minor variations. During the presentation of the, Respondent Company's case, evidence was received, over objection of the General Counsel, after oral argument on the applicability of certain Board decisions which the General Counsel views as saying that "parole evidence as to a written union- security clause in existence is inadmissible." At the conclusion of the hearing, all parties were afforded opportunity to argue orally upon the record and to file briefs. The General Counsel and the Respondent Company argued orally. No briefs. have been filed. On the basis of the entire record in the case, and from my observation of the) demeanor of the witnesses at the hearing, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT COMPANY Imperial Wire Company, Inc., herein called the Respondent Company, is an Indiana corporation, maintaining its principal office and manufacturing plant at New Haven, Indiana, where it has at all material times engaged in the manufacture of wire and wire products. In the course and conduct of its business, the Respondent Company causes large quantities of raw materials used by it in the manufacture of its products to be purchased and transported in interstate commerce to its New Haven plant from and through States of the United States other than the State of Indiana. During the calendar year 1955, the value of raw materials purchased by the Respondent Company for use in said business was approximately $872,000. All of said materials were shipped through channels of interstate commerce from places outside of the State of Indiana to the Respondent Company's place of business at New Haven, Indiana. During this same calendar year of 1955, the Respondent Company sold finished products valued in excess of $1,250,000. Of said products, goods valued in excess of $125,000 were shipped and transported in interstate com- merce, from the Respondent Company's plant in New Haven, Indiana, into, and through States of the United States other than the State of Indiana. The parties stipulated that the Respondent Company is, and at all times material has been, engaged in commerce within the meaning of the Act, and I so find. II. THE LABOR ORGANIZATIONS INVOLVED Magnet Wire Workers Union, Inc., herein called the Respondent Union, is a labor organization within the meaning of the Act. It admits to membership employees of the Respondent and has a collective-bargaining agreement with the Respondent Company covering most of said employees. International Union of Electrical, Radio & Machine Workers, AFL-CIO, herein called the Charging Union, is a labor organization within the meaning of the Act. It is affiliated with the American Federation of Labor-Congress of Industrial Organizations. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Chronology of facts and events 1. The agreement of November 7, 1955 The already mentioned article III, from which stem the alleged unfair labor practices in this case, is embodied in a 17-page document which is in evidence. Said document, which is typed on lettersize paper, is captioned "AGREEMENT." It is dated as "entered into November 7, 1955," between the Respondent Company and the Respondent Union, and is hereinafter referred to as the Agreement. For the Respondent Company, the Agreement bears on its last page the signature of 788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Manager Robert Schanlaub . For the Respondent Union, there appear the signatures of five individuals who are elsewhere identified in the record as holding various offices in the Respondent Union, and as collectively constituting its board of directors. Credited testimony, which will be discussed in a subsequent section of this Report, establishes to my satisfaction, when considered in conjunction with my detailed comparison of provisions , that the Agreement was based on ancther agreement which had been entered into some 10 months earlier between Essex Wire Corporation of Fort Wayne, Indiana, and Local Union No. 184 of the Inter- national Union, United Automobile Workers of America, A. F. of L. The fore- going agreement , executed between a company and a union not involved in the instant matter, is in evidence in the form of a printed booklet which is hereinafter referred to as the Pattern. Reserving for later consideration the various contentions of the parties and certain comparisons between the Agreement and the Pattern, there are herewith presented, along with explanatory interpolations in brackets and italicizing supplied for emphasis, such provisions of the Agreement of November 7, 1955, between the Respondent Company and the Respondent Union, as I deem relevant. Article III All present employees covered by this Agreement who are members of the Union on the effective date of this provision shall remain members in good standing as a condition of employment. All present employees who are not members of the Union on the effective date of this provision and all employees who are hired hereafter shall become and remain members of the Union in good standing as a condition of employment on or after the 6th calendar day 8 following the beginning of their employment or on and after the 31st day following the effective date of this provision whichever is the later. This pro- vision shall be made and become effective as of such times that it may be made and become effective under the provisions of the National Labor Rela- tions Act, but not retroactively. Article VIII DISCHARGED EMPLOYEES Any employee who believes he has been improperly discharged shall within twenty-four (24) hours after his discharge, file with a member of the Grievance Committee his written complaint concerning such discharge , signed by him. [There follows in this article approximately three-fourths of a page detailing the step by step procedure to be followed thereafter.] Article IX SENIORITY [This article, covering over three pages, essentially establishes an employee's position on the seniority list as the chief consideration with respect to rights and procedures pertaining to such matters as promotions, demotions, lay-offs, reclassifications, and permanent transfers. It contains the following pertinent provisions for a 30-day probationary period before seniority rights become applicable.] Employees shall be regarded as temporary for the first thirty (30) calendar days of their employment. The Company shall not be responsible for the reemploy- ment of temporary employees if they are discharged or laid off during this period. At the completion of the period of probation employees shall be placed upon the seniority list according to their date of hire. Artice (sic) XVI [Only the last of 9 paragraphs in this article is quoted.] If any provision of this Agreement is held invalid due to existing or future Federal or State legislation, the remainder of this Agreement shall not be affected thereby. Article XVII DURATION [This article is set forth in toto.] This agreement shall remain in full force and effect and shall be binding upon the parties hereto three (3) days from the date of signing, and shall thereafter 6 The printed wording of the Pattern at this point reads "the 60th calendar day." IMPERIAL WIRE COMPANY, INC. 789 be continued for yearly periods unless notice of desire to cancel, modify or terminate this agreement is given in writing by Registered Mail by either party to the other at least sixty (60) days before the expiration date of this agreement. This agreement may be reopened by either party for negotiation of hourly rate wages only as of December 1, 1955 by giving notice in writing by Registered Mail by either party to the other at least sixty (60) days prior to December 1,1955. The Agreement of November 7, 1955, from which the foregoing provisions have been abstracted, also recognized the Respondent Union as the sole bargaining agent for all of the Respondent Company's production and maintenance employees, who numbered not more than 25. After it was executed, the entire Agreement was posted on the only bulletin board in the plant of the Respondent Company, said board being located by the time clock. Next to the Agreement was also posted a notice which read as follows: NOTICE TO ALL EMPLOYEES NOVEMBER 8, 1955. On November 7, 1955 a contract between "Magnet Wire Workers Union, Inc." and "Imperial Wire Company, Inc." was signed after a unanimous vote of the members. THIS CONTRACT IS NOW IN EFFECT. THIS IS NOW A UNION SHOP-PLEASE REFER TO ARTICLE III OF CONTRACT. ( Signed ) MANAGEMENT. 2. Developments subsequent to the signing and posting of the agreement On or about December 12, 1955,6 Earl B. Chamberlain , a machinist who had been in the employ of the Respondent Company for "between a year and a year and a half," and who had not joined the Respondent Union, was engaged in conversations at his machine in the plant by two of the officers of the Respondent Union who had signed the Agreement . The first conversation was with John Clouse, who was then the chairman of the board of directors. According to Chamberlain's version of this conversation , which was not directly contradicted, as Clouse was not called as a witness , Clouse told Chamberlain that he "should join the union"; Chamberlain told Clouse that he did not think that he should; and Clouse "wanted to know" Chamberlain's reasons for not wanting to join . According to Chamberlain , he told Clouse that he "figured that this Article III of their contract was an illegal clause"; that he "had been advised to that effect"; 7 that Clouse "would have to make an exception in [his] case"; and that he "wouldn't join." Thereupon, according to Chamberlain , Clouse said that: he [Clouse ] couldn't do that; if he made an exception to [Chamberlain] that the organization would fall apart ; they would all of them feel that they didn't have to join. It was possibly some 10 minutes after the foregoing conversation, on about "December the 12th or the 13th or the 11th, around there," that Godfrey F. Strack, the treasurer of the Respondent Union and one of its founders ,8 also engaged Chamberlain in conversation at his machine . Chamberlain 's full version, as a witness upon direct examination by the General Counsel, as to what was said during this conversation with Strack, was as follows: Well, it was about nearly approximately the same conversation . He wanted me to join and I told him that I thought his Article III was illegal and that I had been advised that it was illegal and that I didn 't intend to join. 0 Subsequent dates during December in this section of the Report are all during the year 1955. 7 Chamberlain testified that it had been George Gould, the international representative of the Charging Union who appeared for it at the hearing herein , who had advised him regarding the illegality of article III. However , Chamberlain did not know whether he had told Clouse that it had been Gould who had given him this advice. 8 This is the same individual elsewhere mentioned herein . Strack has since also become the chairman of the board of directors of the Respondent Union and represented it at the hearing. 790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD By contrast, Strack, when questioned about this conversation by counsel for the Respondent Company, who had called Strack as a witness, testified as follows: Mr. Chamberlain, when I talked with him, never pointed out to me that anything was wrong with Article III in our contract. When I thereupon asked Strack if Chamberlain had mentioned "Article III at all" to him, Strack answered, "No, he never mentioned Article III at all." Strack there- after added, with what impressed me as an attempt to be fair and accurate about the matter, the following qualification: I mean our conversation hinged on Article III, about joining the union. But there was nothing mentioned about the legality of Article III. It did hinge on it. Thus, while Strack admitted having "asked Mr. Chamberlain to join our union," he convincingly insisted that Chamberlain had "never" said anything to him about article III being illegal, and that it was not until sometime after Chamberlain's discharge that he first learned that Chamberlain was making any such claim. According to testimony of Chamberlain, given after that pertaining to the foregoing two conversations, Chamberlain also had conversations "quite often" about his joining the Respondent Union with Robert Schanlaub, the general manager of the Respondent Company. Chamberlain characterized these conversations with Schanlaub as follows: They all run pretty much along the same line; he wanted me to join the union, and, of course, I didn't want to. When asked by the General Counsel if he had had a conversation with Schanlaub "on or about the 11th of December," Chamberlain replied, "I presume I did." What herewith follows is a composite of all of Chamberlain's answers pertaining to what was said during this conversation at his machine, when only he and Schanlaub, who was not called as a witness, were present: One thing he told me that I had either to join the union or he would be forced to let me go..... I told him about the same as I told the others. . That I considered it an illegal union and that I didn't feel that I should join. . I told him that we had held a National Labor Relations Board election and that the shop had voted no union,9 and that I was in favor of that. [Emphasis supplied.] On December 19, Blain Laffin, the plant superintendent, had a conversation with Chamberlain at his machine during which Laffin told Chamberlain, in effect, that management was being forced to give him notice that he would be dismissed if he did not show satisfactory cause, within 3 days, for not joining the Respondent Union. At that time, Laffin gave Chamberlain a copy of a notice dated December 19, which the Respondent Union, over the signatures of the same five members of its board of directors who had signed the Agreement, had addressed to the Respondent Company. In essence, this notice stated that Chamberlain had not "complied with the terms" of the Agreement and that Chamberlain should join the Respondent Union within 3 days or "show just cause" why he should not become a member. Said notice, a copy of which apparently was also posted on the bulletin board,10 immediately after its opening sentence citing the signing of the Agreement of November 7, but before making any reference to Chamberlain, contained the following paragraph: Article three of this contract specifies that all employees shall become members of said union within thirty days or show just reason for not doing so. [Empha- sis supplied.] On December 20 or 21, Laffin handed Chamberlain a communication on an official letterhead of the Respondent Company. This communication was addressed to Chamberlain, was dated December 20, and was signed by General Manager Schanlaub. Its single paragraph notified Chamberlain that, under article III, he was "to affiliate with said Union within three (3) days, or give just cause in not 9 There is no evidence in the record as to what may actually have happened in any such election, and there is no background evidence as to any unfair labor practices prior to the execution of the Agreement on November 7, 1955. 10 During his examination of Strack for the Charging Union, Gould stated that he "understood that this was posted in the plant," and Strack testified that he believed that it was. IMPERIAL WIRE COMPANY, INC. 791 doing so." This is Chamberlain's version of his conversation at that time with Laffin, who was not called as a witness: Well, we discussed the Article III again . I told him that it was illegal, and that was my reason for not wanting to join . And he told me-he said, "Well, I suppose you know that if you don't join Mr. Schanlaub is going to let you go." I said "yes, I presume that." On December 22, the last day upon which Chamberlain worked for the Respondent Company, Laffin told Chamberlain that if he "didn't join and comply with the notice," Chamberlain could come to work the next day if he wanted to, but "after that [he] was done." Chamberlain did not choose to work on December 23, but on December 23 or 24 he went to the office to get his check. When he got the check from Schanlaub , Chamberlain asked him "for a release," saying that he wanted Schanlaub, "to state on the release why [he] was discharged." Schanlaub told Chamberlain that he "couldn't issue that, that Mr. Zinn would take care of that." Not long thereafter, Chamberlain received through the mail a printed form captioned "REPORT OF UNEMPLOYMENT INDIANA EMPLOYMENT SECURITY DI- VISION." This form was dated December 27; signed "Abe Zinn, Pres."; showed Chamberlain's last day of employment as December 22; and gave as the reason for Chamberlain's discharge, "Refused to join Union." Admittedly Chamberlain, while aware of such a provision , made no attempt to use the above-cited grievance procedure for discharged employees , provided in article VIII of the Agreement . On January 26, 1956, Chamberlain went to work as a machinist, at the Weatherhead Corporation, Antwerp, Ohio, where he was employed at the time of the hearing, despite the above -noted unconditional offer of reinstatement by the Respondent Company. It was not until March 15, 1956, that the first of the three charges involved in this consolidated matter was filed, the charge against the Respondent Company in Case No. 13-CA-2189. That charge, signed by George Gould, whom Chamberlain identified as the individual who had been advising him, apparently some 3 months earlier, that article III was illegal , involved only the Respondent Company and made no mention of any illegality or unlawfulness pertaining to any agreement . That first charge merely alleged that Chamberlain had been discharged "for refusing to join, or participate, in a company-dominated union," and cited two case numbers not elsewhere identified in the record, 13-RC-4215 and 13-CA-1915. By contrast, the other two charges identified above in footnote 1, which were filed on May 11, 1956, by attorneys, one an amended charge against the Respondent Company and the other an original charge against the Respondent Union, both were bottomed not only upon Chamberlain's discharge , but also upon the Respondent Company and the Respondent Union , respectively, entering into and enforcing an agreement un- lawfully requiring membership in the Respondent Union. It was not until "in the latter part of May when [the Respondent Union] had that first letter" from the Board that it first came to Strack 's "attention" that the second sentence of article III of the Agreement contained the figure "6th," rather than the figure "60th," which appeared in the printed Pattern.ll Thereafter, during the morning coffee break on Friday, June 1, 1956, the board of directors of the Re- spondent Union, as shown by the minutes thereof, held a special meeting, the stated purpose of which was "Amendment contract to correct typographical error existing in Article III." The minutes of this meeting quoted approximately the first two- thirds of the second sentence of article III, down to the language including the figure "6th" and ending with "day following"; 12 stated that it is to read the "60th day"; and indicated that the board of directors "submits the above amendment to the contract to management for approval." On the following Monday, June 4, at a membership meeting of the Respondent Union, the minutes of the directors ' meeting were read "to all the members present at the meeting." It is undisputed that the Respondent Company agreed to the "amendment," General Manager Schanlaub signifying its concurrence therein by signing what amounts to a typed copy of the above minutes of the July 1 meeting of the directors of the Respondent Union. A copy of this typed, 1-page document, which was also signed by the 5 directors of the Respondent Union, and thus included 11 The above finding is based on Strack's final version, which I credit, despite some earlier confusion, after carefully evaluating all of Strack's testimony in the light of the record as a whole. 13 Incidentally, the word "calendar," which actually appears in article III of the Agreement, was omitted in the quotation therefrom in the minutes. But this only further illustrates a type of inaccuracy which is not uncommon in this case. 792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the signatures of all 6 of the individuals who had signed the Agreement, was posted on the plant bulletin board about June 9, 1956. In addition, the Board's Regional office in Chicago received a copy thereof on June 26. It is my opinion that this typed, signed, and posted document, while falling considerably short of expertness in legal draftsmanship, unmistakably recorded the desire and the intention of the parties to the Agreement specifically to substitute the figure "60th" for the figure "6th," which appeared in the second sentence of article III of the Agreement, as originally posted on the plant bulletin board: B. The positions of the parties and some preliminary conclusions The facts above narrated established that the Respondent Company discharged Chamberlain, who had been in its employ for over a year and who had repeatedly .refused to join the Respondent Union, because the Respondent Union sought Chamberlain's discharge under article III of the Agreement. Said article III, which at the time of Chamberlain's discharge contained the figure "6th" in its second sentence, has been hereinabove quoted in full. We turn now to a summary of the positions of the parties with respect to the issues in this case. It should be noted at the outset that essentially all of the positions taken in this matter have been advanced either by the General Counsel, on the one hand, or by the Respondent Company, on the other. It has already been indicated that no briefs have been received from any of the parties, that the Respondent Union did not file an answer, and that only the General Counsel and the Respondent Company engaged in any oral argument. But since both the Charging Union and the Respondent Union participated throughout the hearing, I have examined the record to ascertain whether there is any indication, on the one hand, that the Charging Union deviated from positions taken by the General Counsel, and similarly, on the other hand, whether anything in the participation of the Respondent Union suggests deviation from posi- tions taken by the Respondent Company. I find that, insofar as positions were expressed by either the Charging Union or the Respondent Union, there is nothing to indicate such deviations. In fact, the Charging Union stated that its "suggested relief coincides with that" which had been explained by the General Counsel and is 'summarized hereinafter. Under all of the circumstances, I am convinced that the following summary, based upon my analysis of the positions taken by the General Counsel and the Respondent Company in their respective pleadings, during argument .on motions and objections throughout the hearing, and in closing oral argument, adequately presents the positions of the parties. As the General Counsel analyzes article III, the union security provided covers three classes of employees: (1) union members who are to remain union members; (2) nonunion members "who are given the statutory period of time in which to join"; and (3) new employees. It is with respect only to this last group, new employees, that. the General Counsel contends that there is an illegal provision in article III. Said illegality arises because the figure "6" contained in the second sentence thereof, which patently applies only to new employees, accords to any new employees, who enter upon their employment 2 or more days after the effective date of the Agreement, less than "the statutory period of time," namely 30 days after entering employment, required by the Act. Concomitantly, the General Counsel concedes that if "30," or any larger figure, had appeared in the place of "6" in article III, no illegality would have been involved in said article. But with the "6" which admittedly did appear, there can be no doubt as to the illegality of part of the second sentence, as applied to new employees, and the Respondent Company concedes such an illegality in article III. As to Chamberlain's discharge, which occurred about a month and a half after the signing of the Agreement, the General Counsel concedes that the specific pro- vision of article III, applicable to old employees such as Chamberlain, was a legal one. But because that legal provision was incorporated not merely in the same article, but even in the same sentence, with the illegal provision pertaining to new employees, the General Counsel argues, upon the basis of language quoted from the Board's Convair decision,13 that those provisions are such integral and interrelated parts of the union-security provisions that the legal cannot be separated from the illegal, and that, accordingly, there is no valid union-security provision available as a defense to Chamberlain's discharge. As to the remedy, aside from the usual provisions and notices pertaining to making Chamberlain whole for any loss of pay up to July 16, 1956, when he was uncon- ditionally offered and declined reinstatement, the General Counsel and the Re- spondent Union, with respect to the Agreement and its article III, seek to have 13 Convair, A Division of General Dynamics Corporation, 111 NLRB 1055, 1058. IMPERIAL WIRE COMPANY, INC. 793 notices with "appropriate terms" to inform the employees that "the amendment as taken place,14 that new employees will be given full thirty days." The General Counsel specifically stated that he was not seeking the disestablishment of the Re- spondent Union; that he was not asking that the Respondent Company withhold recognition from the Respondent Union; and that he was not seeking to have the Agreement set aside. It should also be noted that the complaint does not contain any allegation that the Agreement is invalid and of no effect. We come next to the gist of the several defenses raised by the Respondent Com- pany and the General Counsel's response to them. Admitting the illegality of the provision in article III concerning new employees, the Respondent Company con- tends that this was merely "an error in the recording and transcribing of the agree- ment" actually reached by the parties, arising when a "6" rather than the intended "60" was typed at that point. It is the Respondent Company's strongly urged posi- tion that it is fundamental "in the law of contracts" that, where a mistake is made in recording the actual agreement of the parties, "the contract should be read as the parties intended it to be read"; that the evidence received at the hearing on this issue, over the General Counsel's objections, was properly received because the cases cited by the General Counsel in opposition pertain to a different type of situation; and that reading the Agreement as the parties intended removes the basis of the al- legations of the complaint. By contrast, the General Counsel, citing language from the Board's decisions in two cases , Jersey Contracting 15 and Seaboard Terminal,16 views these decisions as saying that "parole evidence as to a written union-security clause in existence is inadmissible" and urges that by trying "to show that an error was made" in the Agreement, the Respondent Company was "in opposition to these authorities." The General Counsel further contends that, in any event, the evidence as to a typographical error is not convincing, and that it is not a "logical thing to believe" that the parties to the Agreement would have been unaware of such a mis- take in "a clause that a man was fired under." My reasons for believing that the contentions pertaining to this first defense involve novel problems, and my conclu- sions pertaining to them, are presented in the next section of this Report, along with my analysis of the evidence pertaining thereto. Should the foregoing defense fail, it is essentially the position of the Respondent Company that the savings provision in article XVII, already quoted in section III, A, I, hereinabove, affords a valid defense as to Chamberlain's discharge, inasmuch as the illegal provision in article III, pertaining to new employees, "can be sep- arated . leaving the legal portion, . which applied to Mr. Chamberlain, in full force and effect." In support of its defense based on savings and separability, the Respondent Company quotes extensively from language used by the Supreme Court in its Rockaway News decision,17 and also from 12 American Jurisprudence, pages 738 and 873. The General Counsel's position on separability, based on the Board's Convair decision, has already been indicated. Additionally the General Counsel also cites Jandell Furs 18 and Port Chester Electrical 19 in support of the basic prop- osition that all union-security exceptions to Section 8 (a) (3) of the Act must be "strictly construed," and that "a sentence which is in part legal and in part illegal should be declared void." To set out and weigh various factors which distinguish this case from those cited, and to explain why, in view of cogent language in the authorities cited, this defense affords cause for pause, would considerably protract this Report. This is not being done because I am now convinced, after careful study of the issues involved and for reasons which presently appear, that it is not necessary to reach this defense of savings and separability. In addition, the Respondent Company, pointing to the above set out grievance procedure in article VIII of the Agreement, available to discharged employees, about which Chamberlain admittedly was aware but never attempted to avail him- self, advances a defense designated as "exhaustion of administrative remedies." In view of findings made below, disposing of all of the issues in this case on other grounds, I deem it sufficient to say, without further explanation of either this de- 71 This evidently refers to the above-discussed document which was posted on the bulletin board on June 9, 1956, changing "6th" to "60th." In any event, the General Counsel answered in the negative, when asked if he sought to have the Agreement set aside, and added that he admitted that the Agreement "has been amended." uuJersey Contracting Corp., 112 NLRB 050, 662. "Seaboard Terminal and Refrigeration Company, 114 NLRB 1391. 17 F. L. R. R. v. IRock7away News Supply Company, Inc., 345 U. S. 71. ie Jandell Furs, 100 NLRB 1390. !'Port Chester Electrical Construction Corporation, 97 NLRB 354. 794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fense, for which the Respondent Company cites no decisional authority, or of the position of the General Counsel, that while I am not too impressed with this defense, I am not ready to say that it is devoid of merit. Similarly, I do not believe it necessary to discuss the view of counsel for the Respondent Company that "it is the policy and the spirit of the Act" to encourage and enforce collective-bargaining agreements and that to decide in accordance with the General Counsel's position would go "contrary to the spirit of the Act." Nor does it become necessary to decide a point not spe- cifically raised by any of the parties, but nevertheless implicit in the issues, namely whether or not the above-described document, posted on June 9 "to correct typo- graphical error," would constitute a sufficiently clear notice to employees that "60" rather than "6" is the applicable figure in article III, thus acording more than the statutory time to new employees. Before turning to a detailed consideration of the first of the above-stated defenses, it is necessary to dispose of a problem raised by the evidence, of which none of the parties have given any evidence of being aware. The Agreement, as posted, stated in the above-quoted article XVII, as to its duration, that it "shall be binding upon the parties thereto three (3) days from date of signing." Does this mean that the original term of the Agreement was intended to be only 3 days, or does it mean rather that the Agreement was not to take effect until 3 days after it was dated? It can scarcely mean the latter, because in that case article XVII provides for no orig- inal term at all. However, if the former was intended, a term of only 3 days would scarcely afford the 60-day period for the written notice which the same sentence provides. Did the Agreement expire after 3 days, or did it automatically renew itself for a year, in the absence of a X60-day notice which it was impossible to give, or is there possibly a typographical error in this provision? That various kinds of errors were made in framing the Agreement from the Pattern becomes obvious when a careful analysis is made of the Pattern and of the Agree- ment. For instance, the last paragraph of the above-quoted article XVII of the Agreement is meaningless in providing for a wage reopener upon a 60-day written notice prior to December 1, 1955, since the Agreement was not signed until Novem- ber 7, 1955. However, this identical provision, which was copied verbatim from the Pattern, was meaningful in the Pattern, since that document was entered into as of January 5, 1955. When we compare the first paragraph of article XVII in the Agreement and in the Pattern, we find that the wording of the Pattern is identical with that of the Agreement, except that where the phrase "three (3) days from the date of signing" appears in the Agreement, the Pattern contains the printed phrase, "until December 1, 1956." However, the printed date, "December 1, •1956," in the Pattern has been crossed out in pencil, leaving the word "until," and there appears in pencil in the margin the notation "3 yrs from date signed." Considering all of the circumstances pertaining to the drafting of the Agreement, which are more fully discussed in the next section of this Report, 'I am satisfied and find that the parties intended that the initial term of the Agreement be a 3-year one, and that the foregoing anomaly, which has apparently escaped the attention of the parties, arises because of typographical errors made when the word " until" was left out, and the word "days" was typed in by mistake at the point where the word "years" was intended. We turn now to a consideration of the question of whether or not the crux of this case may turn on a similar mistake. C. The evidence as to a mistake in article III, and conclusions pertaining thereto Reserving for the present the question of whether Board decisional policy bars the consideration of such evidence, we will summarize first the evidence offered and received, over objections by the General Counsel, to show that the figure "6th" in article III was simply a mistake. The way in which the initial draft was drawn up, and thereafter transcribed as the Agreement, was described by Godfrey Strack, the previously referred to chairman of the Respondent Union's board of directors, when called as a witness by the Re- spondent Company. This is the gist of Strack's credibly given testimony on this subject. At two special meetings, which lasted "until about midnight or so," the members of the Respondent Union "set down to hash out the contract" at the home of one of its members.20 In working out their draft, they "took a copy of another 20 It will be recalled that there are not more than 25 employees altogether in the unit covered by the Agreement. IMPERIAL WIRE COMPANY, INC. 795 contract in book form," which has been identified hereinabove as the Pattern, and "straightened it up" by striking out or modifying a substantial number of its pro- visions, and by inserting other provisions, some of them from their "old contract." Various penciled notations to indicate the agreed changes were made by Strack in longhand on the face of a "comparatively new" printed copy of the Pattern. Strack thereafter used his copy of the Pattern, which bore only handwritten notations which he himself had made in pencil, as his guide during the making of the tran- scription of the Agreement which eventually was signed and posted. 21 In making most of this transcription, Strack sat beside the typist who transcribed the major part of the Agreement, including article III, to help her follow and interpret his writing and the changes intended thereby, in the event "there was any chance of her not understanding." However, about "the last couple of pages" of the Agree- ment, including .article XVII, were transcribed by a second typist, who attempted to follow the revised Pattern without Strack assisting her. Strack's copy of the Pattern, bearing his penciled notations, is in evidence. There is a dim, short, almost vertical, pencil line through the zero of the printed "60th" in the second sentence of article III, the only pencil mark appearing at any point in said article. I find nothing on the face of this mark itself to indicate whether, if intentional, it was intended to strike out the zero, leaving only the six, or to change the zero to a one. When first asked about the pencil mark through the zero, during direct examina- tion by counsel for the Respondent Company, Strack testified that he "must have" been the one who made it, but that he did not "remember this pencil mark being put in there intentionally." When I thereafter asked Strack whether, as a member of the committee, he had any memory of what they had intended to propose as the time to be allowed a new employee, Strack referred to a contractual provision that "an employee will be hired on a thirty day probationary period to see whether he can do the job," 22 and testified that they had "agreed with the company that they wouldn't sign a new man up, we would leave hands off him until they finished the probationary period." In response to a further question on my part, as to whether he had "any memory now of changing that `60' to `6'," Strack answered that he did not "have any memory of it." He also testified that his "best memory" of the matter was that "it was supposed to be `60' to the best of my knowledge." During recross-examination by the General Counsel, when asked if it was not true that he had crossed out the zero, Strack answered, "I probably crossed it out. Maybe I wanted to make it a 'l'. It is possible that I done it." The General Counsel then asked, "Isn't it a fact that actually you thought sixty days was too much and you thought six days was a better number?" Strack convincingly replied: No, no. No, because we thought that, like I say-further on in our contract it stipulates that a man is on probation for thirty days, and we agreed to leave him, not to put the man in the union so that there was no gripe about firing a union man if the company said the man doesn't do his work after his probationary period; if he failed to show up, the company had a right in thirty days to dis- charge the man, and we agreed to leave hands off him. When asked by the General Counsel if he could not "in good faith have put in `6' and considered it completely legal," Strack answered quite frankly, "Yes, I suppose I could have." 23 Later Strack also testified, in response to some further questions by me, that he could not "truthfully say" that he could remember telling the typist either "6" or "60"; that he "probably seen the mark through it and said `6' to her"; that he could not "honestly" say whether or not the mark was actually there at the time the Agreement was being typed; and that he did not have any memory about the mark at all, and did not remember whether he had put it there or not. In connection with the foregoing testimony, especially that pertaining to the probationary period, it should be noted that the printed figure in the Pattern stating 21 Although Strack, the only one of the six signers of the Agreement to testify, was not asked about any negotiations with management concerning the terms of the Agreement, it seems fairly obvious from a careful study of the Pattern and of the Agreement that, as would normally be expected, some of the changes made had been suggested by management. 22Obviously in article IX, as quoted hereinabove. 2 That Strack was not versed in legal technicalities was apparent during his participa- tion at the hearing. For instance, when I asked him if he wanted to file a brief on behalf of the Respondent Union, Strack replied, "\[r. Examiner, I don't even know what a brief is." 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the probationary period was originally 60 days, and that this figure had unmistakably been changed in Strack's handwriting to provide for 30 days instead, as it appears in the Agreement. It thus seems evident that there must have been some discussion of this probationary period, and that a decision had been reached to reduce it from 60 days to 30 days. It is also significant that the above-discussed notice of December 19, 1955, to the Respondent Company, pertaining to Chamberlain's discharge and signed by the five directors of the Respondent Union, referred to article III as specifying that "all employees shall become members of said union within thirty days." We turn now to evidence about the practice followed with respect to new em- ployees joining the Respondent Union. This evidence was received to show "what the parties had in mind when they drew up the contract," that is to say their con- tractual intent.24 The records of the Respondent Company showed that four employees had entered full-time employment since the Agreement was signed, and established the dates upon which they entered their employment. Strack's testi- mony established the dates upon which he, as the treasurer of the Respondent Union, had collected the initiation fees from these four employees. The first of these four was employed on December 29, 1955, and paid his initiation fee on February 10, 1956. The second entered employment on January 2, 1956, and paid his initiation fee on March 3, 1956. The third was a part-time employee who became a full-time employee, a new employee for our purposes, about the middle of May 1956; he paid his initiation fee the latter part of June 1956. The fourth new employee began his employment on June 11, 1956, and paid his initiation fee on August 27, 1956. It is thus evident that in the case of all 4 of these new em- ployees, a period of more than 30 days had elapsed between the dates of their respective employment and the payment of their respective initiation fees, and that in the case of 2 of them the elapsed period exceeded 60 days. In determining whether it is reasonable to believe that the crucial 6-day period in article III was merely an error, which did not reflect the intent of the parties and which the parties corrected in June 1956, after it had been specifically brought to their attention, it is necessary to advert to the testimony of Chamberlain, which has been above set forth in considerable detail in section III, A, 2, concerning his conversations with 4 different people in December 1955, prior to his discharge. An analysis of this testimony shows that as to his conversations with three of these people, Chamberlain testified that he protested that article III was illegal. But as to his conversation with the fourth individual, General Manager Schanlaub, during which Chamberlain said that he had told Schanlaub "about the same" as he had told. the two individuals who were officers of the Respondent Union, Clouse and Strack, it was Chamberlain's testimony that he told Schanlaub that he objected to joining the Respondent Union because he "considered it an illegal union." With respect to the question immediately at hand, I consider the foregoing varia- tion in Chamberlain's testimony particularly significant, when considered in con- junction with certain other factors. In the first place, it will be recalled that Strack convincingly denied that Chamberlain had ever said anything to him about article III being illegal. In addition, facts above detailed show that the first charge involved in the instant matter, which was filed some 3 months after these conversations by the individual whom Chamberlain testified had advised him that article III was illegal, turned on "a company-dominated union" allegation, but made no reference to any illegal union-security provision. Further, it is significant that Chamberlain did not testify that he had made any explanation, involving the 6-day period in article III, to any of the individuals whom he testified that he had told that article III was illegal. And finally, it will be recalled that I have credited Strack's testi- mony that it was in the latter part of May 1956, shortly before the meeting and the notice "to correct typographical error," that the figure "6th" in article III first came to his attention. Upon painstakingly weighing all of the evidence, it is my opinion that during the course of his several talks in December 1955, with officials of the Respondent Union and of the Respondent Company, Chamberlain refused to join the Respondent Union because he "considered it an illegal union," and that any reference which Chamberlain may have made to article III was not sufficiently specific to constitute a warning to the parties that any provision of article III was illegal. Thus under all of the circumstances, including the ineptitude in draftsmanship shown by other 21 Such it purpose is not to be confused with an attempt to show that an illegal union- security clause, which was actually entered into, was not thereafter enforced. IMPERIAL WIRE COMPANY, INC. 797 errors in the Agreement,25 I do not find it so difficult as the General Counsel does to believe that a mistake in article III could have gone unnoticed. Finally, while I am well aware that the proof could have been more conclusive, it is my care- fully considered opinion that the most reasonable inference to be drawn from the evidence as a whole is that the 6-day period specified in the second sentence of article III was a mistake in stating the intention of the parties, and that the actual figure intended by the parties, whether it may have been 30 or 60, or even 61, was a statutorily permissible one. Having reached the above general conclusions, we come to the legal question posed by the General Counsel, namely, whether or not under Board policy such evidence can be considered, or even admitted in the first place. This already summarized position of the General Counsel, and also several other legal questions which have given me considerable pause, have received diligent evaluation, both because I realize that the Board's decisional policy with respect to union-security clauses has essentially involved a strict interpretation of the Act, and because my study of the case at bar has convinced me that the problems presented are so novel that there is no controlling Board decisional precedent. Thus in my opinion,. a close reading of Board decisions in such cases as those cited by the General Counsel, Jersey Contracting and Seaboard Terminal,26 will reveal that while such decisions make parole evidence unacceptable in establishing the modification of a written union-security agreement, such cases do not deal with problems involved herein, such as the admissibility or the weight to be given to various types of evidences going to a contention that a mistake was made in writing down, in the first place, what was actually agreed to by the parties. Perhaps more. suggestive, while not actually in point, is another line of Board decisions, not cited by any of the parties. This decisional line, pertaining to union-security provisions which are ambiguous, and which is illustrated by decisions cited in the margin,27 reveals that under certain circumstances relative to ambiguity, the Board will consider extrinsic evidence to establish original intent. But our problem herein arises not from ambiguity but from a mistake. Everything considered, I conclude and find that, under the novel circumstances of this case, the Agreement, as actually intended by the parties, did not contain any illegal union-security provision; that the provision relied upon by the General Counsel to base the unfair labor practice allegations in the consolidated complaint was merely a mistake made in writing down what the parties agreed to; that the appropriate general contract-law procedure in such situations is to interpret an agreement as the parties actually intended it to read; 28 and that such general pro- cedure is properly applicable to union-security provisions under the circumstances pertaining to the instant matter, due consideration being given to the Board's strict interpretation of union-security provisions. In view of all the foregoing, and the state of the pleadings, it is evident that all of the unfair labor practice allegations of the consolidated complaint with respect to the Respondent Company must fail. There remains, however, a question raised by the fact that' the Respondent Union failed to file any answer. Under Section 102.20 of the Board's Rules and Regulations, it would appear that the allegations of the consolidated complaint with respect to the Respondent Union "shall be deemed to be admitted to be true and may be so found by the Board." It would seem obvious from the foregoing provision that, while the Board "may" so find, it is a matter within the Board's discretion. In addition, none of the parties sought judgment against the Respondent Union on the pleadings, and the matter was fully litigated. In any event, it would appear from the Board's recent decision in County Electric 29 that such default admissions by the Respondent Union "cannot be imputed" to the Respondent Company, and that the Board is also concerned that "no inconsistency in deeming as true the unanswered allegations of the complaint" 25 J find nothing in the record to suggest that any attorney assisted in drafting the Agreement. NAP cited above, 112 NLRB 660, 662, and' 114 NLRB 1391, respectively. 27 Compare Triangle Tanning Co., 115 NLRB 2T1; Sterling Faucet Company, 108 NLRB 776, 781; Krembo Food Stores,' Incorporated, 106 NLRB 870, 873; Hess, Goldsmith A Co., Inc., Atwater Division, 101 NLRB 1009, 1012; Seattle Bakers' Bureau, Inc., 101 NLRB 1344, 1345: New Castle Products, Incorporated. 99 NLRB 811, 813; and Tom A. Newton, 4/b/a Newton Investigation Bureau. 93 NLRB 1574, 1575. ' See 12 American Jurisprudence, Contracts, Sec. 138 (Mistake in Expression of Agreement), page 631. :e County Electric Co., Inc., at al., 116 NLRB 1080. . 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD should arise with respect to its disposition in the same case of issues litigated and considered on the merits . Hence it seems obvious , under all the circumstances, that all of the unfair labor practice allegations of the consolidated complaint with respect to the Respondent Union must also fail. Accordingly, it will be recom- mended that the complaint be dismissed in its entirety. Upon the basis of the foregoing findings of fact, and upon the basis of the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Imperial Wire Company, Inc., is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. Magnet Wire Workers Union , Inc., and International Union of Electrical, Radio & Machine Workers, AFL-CIO, are labor organizations , within the meaning of Section 2 (5) of the Act. 3. The allegations of the consolidated complaint that the Imperial Wire Company, Inc., and that the Magnet Wire Workers Union , Inc., have engaged in unfair labor practices within the meaning of Section 8 (a) (1), (2 ), and (3 ) of the Act, and Section 8 (b) (1) (A) and (2 ) of the Act, respectively, have not been sustained. [Recommendations omitted from publication.] Orchard Industries, Incorporated and United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Petitioner. Case No. 7-RC-3459. July 19,1957 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Iris H. Meyer, hear- ing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Murdock and Rodgers]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The Petitioner seeks a unit comprising the employees in the Employer's 4 plants at Hastings, Michigan, but will, in the alternative, accept 2 separate units, one limited to the Employer's plant 4 at 215 South Jefferson Street, and the other comprising the Employer's 2 plants on West State Street and a third at 201 South Jefferson Street. The Employer takes no position on the scope of the unit, but leaves the question for determination by the Board. 118 NLRB No. 93.