Operating Engineers Local Union No. 3, AFL-CIO

922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Operating Engineers Local Union No. 3, AFL-CIO and Cali- fornia Association of Employers. Case No. 20-CB-571. April 28, 1959 DECISION AND ORDER On July 15, 1958, Trial Examiner David F. Doyle issued his Inter- mediate 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 Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. 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 Intermediate Report, the Respondent's exceptions and brief, and the entire record in the case, and, for the reasons explicated below, adopts the Trial Examiner's findings, conclusions, and recommendations only to the extent consistent herewith. 1. SUMMARY OF THE FACTS Hester, a business agent of the Respondent , was located in Redding, California, represented the Respondent in a six-county area, and negotiated contracts on behalf of the Respondent with employers in the area beginning about 1948 . In 1951 the California Associa- tion of Employers, the Charging Party herein , began negotiating and executing agreements simultaneously with Hester and with repre- sentatives of General Teamsters Union Local No. 137; International Association of Machinists , Local Lodge No. 1397 ; and International IIod Carriers' Building and Common Laborers Union of America, Local No. 961. Such an agreement was executed in 1955 by Hester and representatives of the other unions, and by Baxter , representing the Association,' on behalf of three employers, G. E. Oaks, an indi- vidual, d/b/a Oaks Sand, Gravel and Cement Products Company, and Red Bluff Sand and Gravel ; Estelle P. Hein, an individual, d/b/a J. H. Hein Company ; and J. R. Kettlewell , an individual.3 In April 1956 the Respondent transferred Jennings , a business agent, to Redding and instructed him to assist Hester, who was in charge of the district . Thereafter, Jennings as well as Hester negotiated 1 See discussion infra of the Respondent's charge of bias and prejudice against the Trial Examiner. 'Baxter became the bargaining representative of the Association in this area in 1952. His detailed testimony as to the history of bargaining is virtually uncontradicted. Hester was retired in January 1958, and was not present at the hearing. 3 The 1955 agreement was approved and accepted by two additional employers not here involved. 123 NLRB No. 114. OPERATING ENGINEERS LOCAL UNION NO. 3, AFL-CIO 923 and executed agreements on behalf of the Respondent with employers in the area. On May 2, 1956, a letter was sent to Baxter on Teamsters sta- tionery signed by Howell for the Teamsters as well as Mullin for the Machinists, McKenna for the Laborers, and Hester, stating that : This letter will serve as our official notice to open the Agree- ment . . . for the purpose of modifying wages. I will try to make arrangements with you at a later date for a meeting to discuss wage proposals. An amendment was entered into on July 23, 1956, by Baxter for the three employers and by the four union representatives who signed the notice.4 On May 9, 1957, the Teamsters sent the Association written notice of a desire to reopen the 1955 agreement as amended in 1956, and a duplicate of this letter was signed by Hester for the Respondent. On May 13 a reopening notice was executed by both Mullin and McKenna. Baxter went to see Howell in Marysville and suggested that the desired changes be presented in writing. On June 18 Howell wrote Baxter a letter listing "the proposed changes our membership has instructed our committee to negotiate for," and sent copies to each of the employers represented by Baxter. Both Hester and Jennings attended some of the bargaining sessions which ensued. They were not present at a meeting on August 15, which was attended by Howell, Wemple, McCabe, and Wood for the Teamsters, and by Mullin for the Machinists, at which Baxter introduced Goodyear, a representa- tive of Trinity, and announced that Trinity had joined the Associa- tion and would be included in the bargaining. Howell announced at this meeting that he was acting spokesman for all four unions. Both Hester and Jennings attended the September 13 meeting, which was attended also by Howell, Wemple, Wood, and McCabe for the Teamsters and by Mullin for the Machinists. Baxter was accom- panied by Kettlewell, one of the employers.' The union representa- tives said they were not satisfied with a proposal on wages advanced by the Association, but would "take it back to the men," and it was agreed that another meeting would be held on September 19. At the September 19 meeting, the same union representatives were present. According to Baxter, Howell announced that he had sent a notice of the meeting to the Laborers, "but they had claimed inability to attend 4 On July 23 , 19.56, also , Jennings executed an amendment to a 1955 agreement between Trinity Sand and Gravel and the same four unions. This amendment contains the same wage rates for the same employee categories as are listed in the Association amendment. The amendments, in fact, are virtually identical except for the omission of any reference to the Association in the Trinity contract . In 1957 , as discussed below, Trinity became the fourth of the employers on whose behalf Baxter negotiated with the four unions. 5 Baxter was authorized to negotiate and execute agreements on behalf of the employers he represented , but they sometimes sat in on the negotiations. 924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD .. . that he was spokesman for the group." Baxter was accompanied by Kettlewell and by Wolfe from the Hein Company, and Goodyear came in shortly before the close of the meeting. The union repre- sentatives announced that the employees had rejected the Association offer, made a counterproposal, and said they would strike if it was not granted. Their proposal was rejected, and a strike began the next day. The unions began picketing at all the operations except Trinity on September 20, and at Trinity on October 2 or 3. The picketing brought operations to a standstill. On about October 4, Baxter happened to meet McCabe of the Teamsters in Weaverville, and they discussed possible ways of ending the strike. On about October 8, Baxter reported McCabe's sugges- tions to the employers, and was authorized by them to make a counter- proposal. Baxter knew Hester was in Redding so he submitted the counterproposal to him later that same day. Hester indicated dis- satisfaction with the proposed terms, but finally said, according to Baxter, "All right, I'll call a meeting of the men right away." The meeting, attended by employees of all four employers and members of all four unions,' was held on Friday, October 11. All the union representatives, including Hester and Jennings, spoke against acceptance of the Employer's "final offer" on wages, but the vote, by secret written ballot, was 23 to 21 to accept it and go back to work. When the vote was announced, Hester and some of the other union representatives made remarks to the effect that "it was all over now and go back to work . . . it was more or less what the members all wanted and that was it." The pickets were called off on Friday after the mneeting, and, on the following Monday, all the men returned to work at the increased wage rates they had voted to accept. Oaks, one of the employers, called Baxter on Friday evening to tell him what occurred at the meeting. On Monday Baxter called Howell in Marysville and asked if he or Howell was to prepare the amend- ment. According to Baxter, Howell said that Baxter should prepare it and, when it "was submitted to the Unions, they would sign it." Baxter prepared the amendment and took it to Mullin of the Machin- ists in Redding, who signed it and agreed, at Baxter's request, to get it signed by the other union representatives in Redding. Meanwhile, Baxter heard from both Oaks and Kettlewell that Hester was com- plaining, and he agreed to call a meeting to hear the Respondent's complaints. At this meeting, held on about October 28, Baxter was accompanied by representatives of all four employers, while Hester and Jennings represented the Respondent. Baxter stated that the meeting had been called at Hester's request, but Hester turned the discussion over G About 18 to 23 of the Respondent 's approximately 25 members attended. OPERATING ENGINEERS LOCAL UNION NO. 3, AFL-CIO 925 to Jennings. The latter stated that the Respondent would no longer negotiate on a local basis but only at union headquarters in San Fran- cisco on an industry basis, and that the local representatives were not authorized to sign contracts. He presented a new proposal, which Baxter rejected on the grounds that (1) there had been no prior notice of such limitation on Hester"s authority, (2) they had already reached agreement as to the amendment on wages, (3) in view of the history of bargaining, the Respondent was out of order in refusing to sign it, and (4) such refusal would be a violation of the Act. Jennings admitted that he had received formal notice of the lack of local authority after the termination of the strike. Hester finally stated that they were carrying out the instructions of Carman, the Respond- ent's local union manager, and that, if they called Carman, "I don't think you will have any trouble getting him to sign." Baxter asked where the amendment was, and was told it was in Hester's office. Baxter testified that he thereafter went to the Respondent's office and met Jennings there, that "Jennings advised that Mr. Hester had left but that he had called Carman on the telephone and that Hester would take the agreement down and get Mr. Carman to sign it and send it to me," and that Jennings assured Baxter he had nothing to worry about with respect to having Carman sign. Baxter then went to the office of the Teamsters and told Wood there that he had been at the Respondent's office "and had had them agree to sign the agree- ment." Sometime in early November Baxter telephoned Carman and asked him to sign the amendment, but Carman refused. After the amend- ment had been signed by Howell, Mullin, and McKenna, Baxter again called Carman, told him the three unions had signed, and asked if Carman would reconsider his refusal. Carman replied that he would take it up with the executive board. Baxter wrote Carman a letter on November 25 confirming this conversation. In a letter dated November 29, Carman replied as follows : I return herewith the "Amendments" transmitted by your San Francisco office for my approval and signature. As you will note, I have not signed the "Amendment" you propose, it being the position of this organization that it does not, and could not, embody the terms of any agreement reached between authorized representatives of the employers involved and authorized representatives of this organization, since no negotiations between such representatives resulting in such an agreement have occurred. Specifically, it is our position that in their meetings with you regarding the amendment of the 1955-57 Agreement, neither Mr. Hester nor Mr. Jennings, nor any other local office representative of this organization, ever had the au- thority to conclude an agreement with you. As they stated to, 926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD you, the terms of any proposed agreement reached with you had to be submitted to me for ratification, for my approval and signature. I do not approve the proposed "Amendment." At your convenience, I will be pleased to direct an authorized representative of this organization to meet with you for the purpose of negotiating an "Amendment" that will meet with my approval. Since then, the Respondent has refused to process grievances for its 'members employed by the employers, and failed to refer some men requested by Oaks, but claims to represent its members in the area, and accepts dues from them. The 1957 amendment to the 1955 contract, which the Respondent refused to sign, is operative until October 1, 1959, and designates the Association, for and on behalf of its four named members, as "the Employer," and the four unions as "the Union." The 1955 contract, which has this same provision, except that the Association then repre- sented three members, provides, under the heading "RECOGNI- TION "- The Employer recognizes the Union as the sole collective bar- gaining agent with respect to wages, hours and working condi- tions for employees coming under its jurisdiction excluding clerical, supervisory, technical and guards as defined by the LMRA. Any classification, excluding those of clerical, super- visory, technical or guards, not herein mentioned, shall be subject to negotiation as to rate of pay and shall otherwise come under the general terms of this Agreement. This contract also provides, in the section entitled "UNION SECU- RITY," that "Only members in good standing in the Union shall be retained in employment ... ." II. JURISDICTION The Respondent contends that the employers here involved do not meet the Board's jurisdictional standards. All four employers are sand and gravel companies located and operating in California. However, Oaks, one of the employers, during 1957 sold products valued at more than $100,000 to a $20,000,000 factory project being constructed in California by Del E. Webb Construction Co., a multi- state operation with its home office in Phoenix, Arizona. Although there were no shipments from the building project outside the State of California, the Webb home office shipped across State lines goods valued at more than $50,000. In view of Oaks' sales to Webb, an employer who would meet the Board's direct outflow standards on the OPERATING ENGINEERS LOCAL UNION NO. 3, AFL-CIO 927 basis of the totality of its operations, we find that Oaks' operations meet the Board's jurisdictional standards.7 As the Board treats all employers represented by an association as a single enterprise for jurisdictional purposes," we find that it will effectuate the policies of the Act to assert jurisdiction over the four employers herein. III. TIIE REFUSAL TO BARGAIN A. The appropriate unit 1. Scope of the unit The complaint alleges, in effect, that the Respondent violated Sec- tion 8 (b) (3) of the Act by refusing to bargain in an appropriate unit, namely, the multiemployer unit embracing the employees of all four employers named above. The Respondent contends that it did not violate the Act, inter alia, because such unit was not appropriate for the reasons discussed below. The Respondent contends that the his- torical multiemployer unit did not include Trinity and, therefore, that there are two appropriate units here, one limited to Trinity and one including the other three employers. In September 1957, how- ever, Trinity as well as the other three employers signed a document authorizing the Association to negotiate, execute, and administer agreements with representatives of their employees, and agreeing to be bound thereby, provided that any agreement was approved by a majority of the group. The Board includes in multiemployer units new members of an association who "agree to be bound, by association contracts," 9 pro- vided no party objects, and here Trinity had designated the Associ- ation to bargain for it, had agreed to be bound to the same extent as the other employers, and had participated in the multiemployer nego- tiations. Furthermore, although Trinity was not struck on Septem- ber 20, it was struck several days later, and the strike settlement terms were applicable to Trinity as well as the other employers. We con- clude, accordingly, from all the facts, that Trinity had been accepted as part of the multiemployer bargaining pattern, not only by the other employers, but also by the Respondent and the other unions, prior to the Respondent's refusal to sign the agreement here in issue.'° We find, therefore, that the bargaining history establishes the appropriate- ness of a unit comprised of employees of the four employers. 7 See Siemons Mailing Service, 122 NLRB 81. 'Santa Clara County Pharmaceutical Association, 114 NLRB 256, 258; Belleville Em- ploying Printers, 122 NLRB 350. 'Block Cut Manufacturers, Inc., 111 NLRB 265, 267. 10 See Local Union 49 of the Sheet Metal Workers (New Mexico Sheet Metal Con- tractors Association, Inc.), 122 NLRB 1192; International Brotherhood of Electrical Workers, etc. (Texlite, Inc.), 119 NLRB 1792; The Evening News Association, d/b/a Detroit News, 119 NLRB 345. 928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Composition of the unit The Respondent, in effect, also maintains that any refusal by it to bargain was with respect to a unit limited to its members, and that such a unit is not appropriate. In support of this, the Respondent argues that each of the four unions bargained separately, albeit simul- taneously, for its respective membership, that each union therefore represents only its members, and that the Board has found inappro- priate units which were thus based upon union jurisdiction. The case 11 on which the Respondent relies is, however, clearly distinguish- able. Also, the Board has, in later cases, rejected contentions that joint petitioners should not appear on a ballot because their jurisdic- tional limitations precluded their acting as joint representatives.12 Moreover, the categories listed in the contracts herein comprise essen- tially a production and maintenance unit, with statutory exclusions, and the parties have bargained successfully on the basis of such a unit fora number of years.13 Accordingly, we find that all the employees of the four employers coming under the jurisdiction of the four unions, excluding clei'ieal and technical employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for purposes of collective bargain- ing within the meaning of Section 9 (b) of the Act. B. Representation of a majority The contracts between the Association, when it represented three employers, and the four unions contained union-security provisions, and the Trinity employees, for some time before Trinity became part of the multiemployer group, were represented by the same four unions. We find, on the basis of the bargaining history, that the unions repre- sented a majority of the employees in the unit found appropriate. C. The refusal to bargain The complaint alleges, and the Trial Examiner found, in substance, that, pursuant to the practice of several years, the parties engaged in joint bargaining and reached agreement on a wage amendment on or before October 11, 1957; and that, although this agreement was signed -Utility Appliance Corp., 106 NLRB 398. In that case, a representation proceeding, the Employer had bargained jointly with three unions over a number of years for all its production and maintenance employees. The most recent contract recognized each of the unions as the sole bargaining agent for a specified segment of the employees covered by the contract. The Board found that such segments did not correspond to any craft or departmental lines, and that, while they did correspond to jurisdictional lines, that fact (lid not warrant finding them to be separate, appropriate units. Here, however, unlike the foregoing case, the contract recognizes all the unions collectively as the representative of all the employees covered by the contract, and there is no division of recognition along jurisdictional lines. 12 Swift S Company, 115 NLRB 752 and 755; The Stiekless Corporation, 110 NLRB 2202. 13 See St. Louis Bakery Employers Labor Council, 121 NLRB 1548 ; Theo. Hamm Brew- ing Co., 115 NLRB 1157. OPERATING ENGINEERS LOCAL UNION NO. 3, AFL-CIO 929 by all the other parties, the Respondent, since on or about October 25, 1957, has refused to sign it, in violation of Section 8 (b) (3) of the Act. The respondent maintains, on various grounds, that no participant in the 1957 negotiations had the authority to conclude an agreement which was binding upon it. 1. Authority of the Respondent's agents The Respondent's principal contention is that its business agents were authorized only to negotiate and to administer contracts, but not to conclude them without clearance by the Respondent's San Francisco headquarters. Although such a limitation on the authority of Hester and Jennings was not actually made known to Baxter until. the October 28 conference, after the conclusion of the 1957 negotia- tions, the Respondent asserts that Baxter was on notice of this limita- tion prior to that time inasmuch as (1) the California code and State court decisions established that the business agents lacked authority to conclude an agreement; (2) Baxter negotiated in other areas with representatives of the Respondent who did submit tentative agree- ments to the San Francisco office; (3) all the employers should have known that the Respondent was placed under International super- vision in September 1957, as the fact was well publicized, and this was tantamount to notice of a change in the chain of authority; and (4) two of the employers are members of the Respondent and should have known, from the union constitution and from union publications sent to them, of the limited authority of business agents. These factors, however, cannot negate the effect of the bargaining history in this case. On the contrary, the period during which Hester and Jennings concluded and executed agreements on behalf of the Respondent clearly established their apparent authority to do so. We find that they had such authority, and that Baxter and the represent- atives of the other three unions were justified in relying upon this apparent authority.14 2. Agreement reached We are convinced also that the 1957 negotiations culminated in an agreement by all the participants, including the Respondent. When Baxter gave Hester the Employer's strike settlement offer on or about October 8, Hester expressed dissatisfaction with it, but finally said, "All right, I'll call a meeting of the men right away." As it was evidently the practice of the unions to submit proposed contracts to their members, and to feel bound by their votes, Hester's statement indicated acceptance of the proposal subject only to membership ap- proval. This is further indicated by the comments of Hester and 14 See Inland Steel Products Company, 120 NLRB 1678 ; TV. B. Jones Lumber Company, Inc., 114 NLRB 415, 426. 508889-60-vol. 123-60 930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other union representatives, after the members voted on October 11 to accept the Employer's offer, that this was what the men wanted, so they should return to work, "and that was it." Moreover, the Respondent again confirmed this acceptance when its members re- turned to work after the strike with the other employees, at the wage rates contained in Baxter's proposal, and continued to work under the terms and conditions of the 1955 agreement, as amended. In addition, at the October 28 conference, Hester did not take the opportunity to disavow his apparent acceptance of the amendment, but, on the contrary, expressed his conviction that Carman, the Re. spondent's local union manager, would sign it if called upon to do so. On a later occasion, Jennings told Baxter that Hester was taking the agreement to Carman for signature, and 'that Baxter had nothing to worry about in this respect. Even then there was no repudiation of the agreement, but only an indication that the ministerial act of signing had to be done by Carman. We find that Baxter understood these comments to indicate that the Respondent was thereby agreeing to sign the amendment to the contract, as he so informed Wood of the Teamsters immediately afterwards. It is clear, from the entire record, and we find, that all the parties to the 1957 negotiations, in- cluding the Respondent, reached agreement on a wage amendment. 3. Respondent's obligation to sign On the basis of its contention that, although the representatives of the four unions negotiated simultaneously, they were actually bargain- ing separately for their respective members, the Respondent argues that execution of the amendment by the other three unions imposed no obligation to sign upon the Respondent. There is evidence, however, that the unions were engaging in joint bargaining. They bargained together, submitted proposals to their combined membership, signed the same agreements, went on strike simultaneously, and their mem- bers returned to work at the same time on the same settlement terms. In addition, as Baxter testified, during the negotiations Howell, Hester, or another union representative on occasion acted as spokes- man for those who were absent or for the entire group, Howell more often than the others. Evidently when Hester alone agreed, on Oc- tober 8, to submit Baxter's proposal to the men, the other represent- atives went along with his commitment. Baxter testified that when the parties agreed upon terms, he drew up the agreements at times, and at other times Howell did. He also testified that some of the union representatives occasionally expressed views regarding their respective classifications, sought larger raises for their groups than were acceptable to other representatives, or sought individual in- OPERATING ENGINEERS LOCAL UNION NO. 3, AFL-CIO 931 creases, but such separate provisions were never made part of the agreements, which seat forth wage rates for employee classifications with no designation of their union representation. There is no ref- erence in the agreements to separate union jurisdiction, the provisions as to recognition and union security designating only "the Union." When proposals were submitted Ito the combined membership, the vote was on acceptance or rejection of the proposal in toto, and the union representatives apparently accepted these votes as binding upon them. Representatives of all four unions signed the agreements, but the Board has, in a number of cases, found a pattern of joint bar- gaining where each member of the group executed the contract itself.15 Moreover, the Board has found, on the basis of a bargaining and contractual pattern similar to the one here, that the unions, which represented employees within their respective jurisdictions, were bargaining jointly.ls It is clear, therefore, that a pattern of joint bargaining has been established. Actually, however, the result, under the circumstances of this case, would be the same whether the unions had engaged in separate or joint bargaining. In either event, Hester's acceptance would bind the Respondent and would obligate it to execute the amend- ment. Accordingly, we find that, by failing and refusing, on and after October 28, 1957, to execute the amendment, the Respondent has re- fused to bargain within the meaning of the Act, and has thereby violated Section 8 (b) (3) of the Act. IV. THE CONDUCT OF THE TRIAL EXAMINER After the close of the hearing herein but before issuance of the Intermediate Report, the Respondent filed a motion that the Trial Examiner disqualify himself on the ground of personal bias. The Charging Party filed an opposition to the motion. In his report, the Trial Examiner denied the motion, and the Respondent has excepted to this ruling. In our opinion, some of the remarks made by the Trial Examiner at the hearing were not necessary to the conduct of the hearing and would better have been left unsaid. Although we do not condone this con- duct, we are not convinced that it constitutes legal prejudice nor even an appearance of partisanship sufficient to warrant a rehearing.17 We note, morover, that the Respondent did not raise this issue during the 15 Thos. & Geo . M. Stone, Inc., 120 NLRB 480; The Evening News Association, d/b/a Detroit News, 119 NLRB 345; Molinelli, Santoni & Freytes, S. en C., d/h/a Panaderia La Reguladora, 118 NLRB 1010, 1012 ; Charles H. Harper, at al., 117 NLRB 1031. 16 Theo . Hamm, supra ; St. Louis Bakery, supra. 17 Cf. Indianapolis Glove Company, 88 NLRB 986. 932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hearing, but stated, at one point, that the did not object to the Trial Examiner's conduct of the hearing.18 Nor do we believe a rehearing warranted in this case, although some of the comments in the Intermediate Report are inconsistent with established Board law.'9 We have reached the same conclusion as the Trial Examiner, but on the basis of our own examination and analysis of the record. Therefore, as indicated above, we adopt the Trial Examiner's findings and rationale only to the extent consistent with this Decision and Order. ORDER Upon the entire record in this 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 Operating Engi- neers Local Union No. 3, AFL-CIO, its officers, agents, successors, and assigns, shall : 1. Cease and desist from refusing, upon request of the California Association of Employers, to execute the amendment of October 1957 extending the 1955 agreement to October 1959, and to bargain col- lectively with the Association as one of the bargaining representatives of the employees in the unit found appropriate, and, if an under- standing is reached, to embody such understanding in a signed agreement. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Upon request of the Association, execute the amendment of October 1957 extending the 1955 agreement to October 1959, and bar- gain collectively with the Association as one of the bargaining repre- sentatives of the employees in the unit found appropriate, and, if an understanding is reached, embody such understanding in a signed agreement. >e The following exchange between the Trial Examiner and the Respondent occurred near the close of the first day of the 3-day hearing: TRIAL EXAM INER : Well, you ask the questions properly or I will not let him answer , because you are not a special character around here in this regard either. So that settles that. If I am making an improper ruling you can take it to the Board , but I am trying to make my ruling just as clear as I possibly can. I am giving you further opportunity at 10 :00 o'clock tomorrow morning. Mr. MATHEws : I have not made any objection to the manner in which you are conducting this hearing. 19 The Board does not adopt the Trial Examiner 's rationale to the extent that it sug- gests that the status of labor organizations under the statute vis-a-vis employers and employees is limited by the common law rules of agency. For the correct rule of law as to this issue see Boston Machine 1 ori;c Company, 89 NLRB 59 ; American Seating Company, 106 NLRB 250; Midland Rubber Corporation, 108 NLRB 930 ; American Brake- Shoe Company, 116 NLRB 820. OPERATING ENGINEERS LOCAL UNION NO. 3, AFL-CIO 933 (b) Post at its business offices and meeting halls copies of the notice attached hereto marked "Appendix.'' 20 Copies of said notice, to be furnished by the Regional Director for the Twentieth Region, .shall, after being duly signed by the Respondent's representatives, be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter in conspicuous places, including all places where notices to members of the Respondent 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) Additional copies of said notice, to be furnished by the Regional Director for the Twentieth Region, shall, after being duly signed by the Respondent's representatives, be returned to the Regional Director for posting at the premises of each of the employers covered by the :said amendment to the agreement, if willing, for 60 consecutive days, in places where notices to employees are customarily posted. (d) Notify the Regional Director in writing, within 10 days from the date of this Decision and Order, what steps the Respondent has taken to comply herewith. 20 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 MEMBERS OF OPERATING ENGINEERS LOCAL UNION No. 3, AFL-CIO 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 you that : WE WILL, upon request by the California Association of Em- ployers, execute the amendment of October 1957 extending the 1955 agreement to October 1959, and we will, upon request, bar- gain collectively with the aforesaid Association as one of the bargaining representatives of the employees in the unit described below, and, if an understanding is reached, embody such under- standing in a signed agreement. The appropriate bargaining unit is: All the employees of G. E. Oaks, an individual, d/b/a Oaks Sand, Gravel and Cement Prod- ucts Company and Red Bluff Sand and Gravel; Estelle P. Hein, an individual, d/b/a J. H. Hein Company; J. R. Kettlewell, an individual; and Trinity Sand & Gravel, coming under the juris- diction of General Teamsters Union Local No. 137; International Association of Machinists, Local Lodge No. 1397; International 934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hod Carriers' Building and Common Laborers Union of Amer- ica, Local No. 961; and Operating Engineers Local Union No. 3, AFL-CIO, excluding clerical and technical employees, guards, and supervisors as defined in the Act. OPERATING ENGINEERS LoCAL UNION No. 3, AFL-CIO, Labor Organization. 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 This proceeding, brought under Section 10(b) of the Act was heard at Redding, California, on April 15-17, 1958, pursuant to due notice to all parties.' The com- plaint, issued on February 27, 1958, was based on charges filed by the Association and was duly served on the Respondent. The complaint alleged in substance that since October 25, 1957, the Engineers had refused to sign or execute a certain labor agreement, the terms of which had been agreed upon in collective bargaining on or about Octobef 11, 1957, and had thereby violated Section 8(b) (3) of the Act. The Engineers filed a timely answer which denied the commission of the unfair labor practice alleged in the complaint, and raised certain affirmative defenses which shall be dealt with hereafter. At the hearing, the General Counsel and the Association were represented by attorneys, and the Engineers by a labor relations consultant in its employ. All parties were afforded a full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence bearing on the issues, to argue the issues orally upon the record, and to file briefs and proposed findings. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE ASSOCIATION AND THE INDIVIDUAL COMPANIES California Association of Employers, herein called the Association, is a California corporation with its principal office in San Francisco, California. It is an association of employers who are in business in the State of California. It acts as the agent of its members in conducting labor relations and bargains collectively with unions which represent employees of its members. The individual companies, represented by the Association in the bargaining here involved, and in this proceeding, are engaged in the sale of sand, gravel, concrete, and related products in the vicinity of Redding, California. The companies are as follows: G. E. Oaks, an individual, doing business as Oaks Sand, Gravel and Cement Products Company, and as Red Bluff Sand and Gravel; Estelle P. Hein, an individual, doing business as J. H. Hein Company; and J. R. Kettlewell, an individual. The above-named companies, for a period upwards of 10 years, bargained with a group of unions which represented employees of these sand and gravel companies. In the year 1957, Hal E. Goodyear and Robert L. Marshall, copartners, doing business as I In this report the Respondent is referred to as the Engineers or Local 3 ; California Association of Employers, as the Association ; International Association of Machinists, Local Lodge No. 1397, as the Machinists ; General Teamsters Union Local No. 1.37, as the Teamsters ; International Hod Carriers' Building and Common Laborers Union of America, Local No. 961, as the Laborers ; and the Engineers, Machinists, Teamsters, and Laborers, collectively, as the four Unions ; the General Counsel of the Board and his representative at the hearing, as the General Counsel ; the National Labor Relations Board, as the Board ; and the Labor Management Relations Act of 1947, as amended, as the Act. OPERATING ENGINEERS LOCAL UNION NO. 3, AFL-CIO 935 Trinity Sand & Gravel, with their principal office and place of business located at Weaverville, California, joined the multiemployer-multiunion bargaining. These companies are hereafter referred to collectively as the Employer. At the hearing Frederick P. Kuentz, project manager for the Del E. Webb Con- struction Company, testified that his company constructs large industrial projects throughout the United States. He said that his Company was presently engaged in building a $20,000,000 factory for the Diamond Match Company in the vicinity of Red Bluff, California . During the year 1957 his company purchased from Oaks (Red Bluff Sand and Gravel ) sand, gravel , and related products in the amount of $168,911.42 . He also testified that the principal office of his company was at Phoenix, Arizona, and that during the year 1957 the company was engaged in construction work in other States , as well as in California. Upon all the evidence I find that the Employer sold products in excess of $100,000 to the Del E. Webb Construction Company, which company is engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act, and that the Employer is likewise engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATIONS I find that the Engineers , the Machinists , the Laborers, and the Teamsters are labor organizations within the meaning of Section 2 ( 5) of the Act. These organi- zations are referred to collectively as the four Unions. I further find that the employees of the Employer coming under the jurisdiction of the four Unions, excluding office clerical employees , technical employees , guards, and supervisors within the meaning of the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. I also find that at'all times material to the issues herein, a majority of the employees in the appropriate unit as found above had designated the four Unions as their representative for the purposes of collective bargaining with the Employer and that at all times material to the issues herein, the four Unions have been and are the representative for the purposes of collective bargaining of the majority of the em- ployees in said unit and by virtue of Section 9(a) of the Act have been , and are now, the exclusive representative of all the employees in said unit for the purposes of collective bargaining with respect to rates of pay, wages , hours of employment, and other conditions of employment. III. THE UNFAIR LABOR PRACTICES A. The undisputed testimony There are no conflicts in the testimony as to the basic facts of this proceeding. The course of conduct of the parties , and their relationships, are established by undisputed testimony and by a series of contracts between the parties, which are in evidence. 1. History of bargaining between the Employer and the Unions It is undisputed that in the year 1951 the Association, as the representative of Oaks, and the four Unions as representative of Oaks' employees in various classifi- cations, instituted collective bargaining for the purpose of agreeing on wages, hours, and working conditions of Oaks' employees . In that year a pattern of bargaining was established which was followed thereafter. In 1951 the Association represented only Oaks. In negotiations conducted simultaneously with the four Unions, the representative of the Association and a representative for each of the participating Unions arrived at the terms of a contract which settled the questions of wages, hours, and working conditions of the employees to the satisfaction of all concerned. By this system of bargaining, the wage scales for the four Unions were adjusted as between the Employer and the four Unions , with a proper regard to the relationship of the wage scales as between the Unions. The result was that the four participating Unions were satisfied with the contract with reference to the Employer and with reference to the rates of pay of the crafts in relation to each other. It should also be noted that the bargaining procedure of the parties included a vote of the affected employees. When the representatives of the Employer and the employees agreed upon the terms of the contract, it was then submitted to the men for their acceptance or rejection by a secret ballot. Under this system the Association representing Oaks, and the representatives of the four Unions, arrived at a mutually acceptable contract in the year 1951. The 936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD men voted to accept the contract, and the Association and the four Unions thereupon executed the formal document .2 By the identical procedure the terms of the 1951 agreement were amended in 1952.3 Thereafter, on a yearly basis Association representatives and the business agents of the four Unions met and by appropriate amendments changed the terms of the contract to encompass new conditions and new wage rates. On April 1, 1955, the same system was followed in arriving at the terms of a new contract. However, in that year there was some slight change in the parties. By April 1, 1955, the J. H. Hein Company and J. R. Kettlewell had joined in the bargaining with the consent of all concerned. In the 1955 negotiations, using the same system of bar- gaining, the parties arrived at a much more formalized form of contract, which embraced the additional employers.4 On May 2, 1956, the four Unions by appropriate letter reopened the contract in accordance with its terms, and thereafter bargaining conferences were held and an amendment covering wages, hours, and working conditions finally agreed upon. The amendment is dated July 30, 1956, and is executed by the representatives of the four Unions and by the Association on behalf of Oaks, Hein, and Kettlewell.5 In May 1957 the Unions gave notice to the Association that they desired to open the agreement of 1955, as amended in 1956, for the purpose of adjusting wages, classifications, hours, and working conditions, in accordance with section 1 of the existing agreement. 2. The 1957 negotiations As to the negotiations in this year, the General Counsel called as a witness Lawrence W. Baxter, field representative of the Association. He testified credibly, and his testimony is not disputed. I credit his testimony fully. According to Baxter, when he received the notification reopening the existing contract, Baxter went to Marysville, California, and spoke to Howell, president of the Teamsters, and requested that the Unions submit their ideas as to changes in the contract. On June 18 Howell sent a letter to Baxter outlining the proposed changes which the Unions desired. On August 15 representatives of the parties met. For the Employer the repre- sentatives were Baxter, Oaks, and Goodyear. Representing the Unions were Howell, of the Teamsters, and Mullins, of the Machinists; no representative of the other two Unions was present, but the conferees understood that they would be present at the next bargaining session. The conferees went over changing conditions in the sand and gravel industry, and at the conclusion of the meeting, they agreed to meet on September 5 for further discussion of the subject. On September 5 the conferees met again. At this meeting Howell announced that he was acting as spokesman for all four Unions, but the meeting was postponed until September 13. On September 13 Baxter, accompanied by Kettlewell, met with the following representatives of the Unions: E. A. Hester and James B. Jennings for the Engi- neers, Howell for the Teamsters, and Mullins for the Machinists. This meeting was held at the Golden Eagle Hotel at Redding at 10:30 a.m. on September 13. The conferees discussed the requests of the Unions for pay increases, and finally the Association made a counterproposal. The Association offered a general increase of 10 cents per hour based on 21/2 cents in wages plus 71/2 cents in fringe benefits. The union representatives said they were not satisfied with this proposal, but they agreed to take the proposal to the employees and discuss it with them. The union representatives suggested another meeting on September 19. On September 19 the conferees met again. Baxter, Kettlewell, Goodyear, and Hein represented the Employer. Representatives of the Unions were as follows: For the Engineers, E. A. Hester and James B. Jennings; for the Teamsters, Howell and Wemple; for the Machinists, Wood and McCabe. Howell said that he had authority to represent the Laborers, whose representative was detained. The union representatives told the employer representatives that the employees had rejected the Employer's offer, and they made a counterproposal which they stated was rock- bottom-they asked for a pay raise of 171/2 cents an hour, which would be retro- active to July 16. The employer representatives stated they were agreeable to making the pay raise retroactive, but only on the basis of their last offer of 10 cents an hour increase. The union representatives replied that if the Employer did not grant the requested raise, the four Unions would strike. The Employer representa- tives said they could not increase their offer. 2 Charging Party's Exhibit No. 1. 3 General Counsel's Exhibit No. 2. * General Counsel's Exhibit No. 3. 5 General Counsel's Exhibit No. 5. OPERATING ENGINEERS LOCAL UNION NO. 3, AFL-CIO 937 3. The strike On the next day, September 20, the four Unions struck and began picketing the places of business of the companies located at Redding and Red Bluff , California. Trinity Sand & Gravel was not struck or picketed until approximately October 2 or 3. The strike and picketing was effective ; all operations of the employers were shut down. On or about October 4, Baxter was in Weaverville and he met McCabe, a rep- resentative of the Teamsters . They fell to discussing the strike in the sand and gravel industry. McCabe suggested that the Employer and the Unions might be able to get together on a basis of an increase of pay of 121/2 cents for the present year and another 121/2 cents increase in the next year. He also asked for the retroactive feature of the pay increase , and for another paid holiday . Baxter said that he would call a meeting and submit this proposal to the Employer and see if he could not obtain a new proposal which would settle the strike. On October 8, Baxter conferred with the employers and was authorized to present a proposal to representatives of the four Unions, which called for a 121/2 cent increase in 1957, and a like increase in 1958, but with no retroactivity. At the time Baxter was thus authorized, he knew that E. A. Hester, the representative of the Engineers , was in Redding, so he called Hester and submitted the Employer's proposal to him . Later in that afternoon Hester and Baxter conferred on the pro- posal. Hester said that he was disappointed in the offer , especially since the Employer had not accorded to the Unions the retroactive feature of the pay raise. Baxter told Hester that the proposal was the best that the Employer could make. Hester finally said, "All right, I'll call a meeting of the men right away." 4. The meeting of the employees On October 14, the employees of the companies on strike met with representa- tives of the four Unions. John M . Knowlton, Joseph H. Nachreiner, Charles P. Williams, John M. Melton, and Charles Riley, employees who were on strike, and James P. Jennings, a busi- ness representative of the Engineers , all testified to what occurred at this meeting. A composite of their testimony is substantially as follows. The meeting was called for 10 a.m. Friday, October 14, 1957, at the Labor Temple , Redding, California. When the employees presented themselves at the meeting place in the Labor Temple, they were met at the door by the business agents of the four Unions , who checked off the name of the employee on the list of those employed in the companies, and who were entitled to vote. Only upon this determination , that each man was an employee of one of the companies involved and a member in good standing of one of the Unions , was he admitted to the meeting room. At the appointed time the business representatives of the four Unions addressed the meeting. Speeches were made by both Hester and Jennings of the Engineers , by McCabe and Wemple of the Teamsters , and by Mullins of the Machinists . In the course of the remarks of the business agents, the men were informed of the terms of the Employer 's offer. Unanimously the business representatives of the Unions recommended to the employees that they reject the Employer's offer. Some of the employees asked questions of the business representatives , and then discussion of the offer was opened to the meeting . Some employees spoke in favor of accepting the offer, and others spoke against it. Finally, a secret written ballot was taken . Each man marked his ballot to accept or reject the offer and they were collected in a hat. Tellers, who had been appointed , then counted the ballots and it was determined that 21 employees had voted to reject the Employer's offer , and 23 had voted to accept the offer and go back to work . When the result of the voting was announced , Hester and the other Union representatives told the men that it was their decision, and that it was up to them to live with it. On the next day there was no picketing , and on the following Monday, the next workday, the men returned to work. 5. The refusal of the Engineers to sign the contract Baxter testified that when he was informed of the results of the meeting he called Howell in Marysville and asked who would prepare the amendment . Howell answered that Baxter should prepare the amendment in the usual form and that when it was submitted to the Unions , they would sign it. Thereafter, Baxter pre- pared the amendment and took it to Redding to Mullins of the Machinists . Mullins said, "This isn't exactly what we want, but we don't always get what we want," and 938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD signed it. At Baxter's request, Mullins agreed to circulate the contract to the other union representatives for their signature. A few days prior to October 28, Baxter received calls from both Oaks and Kettle- well who told him that Hester, of the Engineers, had been to their plants and had complained of certain things. At the suggestion of Oaks, Baxter agreed to call a meeting of the employers and listen to any complaints which the representatives of the Engineers had. On October 28 Baxter and some of the employers met with Hester, Jennings, and another man by the name of Sturskton, representing the Engineers. Baxter told Hester they had called the meeting at Hester's request, and turned the meeting over to him. Hester then turned the meeting over to Jennings. Jennings said that the Engineers would no longer negotiate on a local or area basis and that all negotiations would take place at San Francisco, and that all companies in the sand and gravel industry would be required to sign the same agreement in the future. Jennings then presented an entirely new proposal to Baxter for his consideration. Baxter immediately rejected it. He said that the Employer had a contract with the Engineers, the same as they had with the other three Unions. Baxter reviewed the long history of bargaining between the parties beginning prior to 1951 up to that date, and said that in his opinion the Engineers would be in violation of the Act if they didn't sign the agreement which they had agreed to, and which had been accepted by all of the employees involved by a secret vote in the union meeting. Baxter then asked Jennings when he had received the notice that the business representatives were not to negotiate contracts on the local or area level. Jennings hedged a bit, but when Baxter asked him if he had received this notice after the pickets were withdrawn and the men had returned to work, Jennings answered in the affirmative. Baxter testified that prior to the meeting of October 28 no one had ever raised any question about the authority of Hester to execute contracts on behalf of the Engineers. Baxter testified that Hester had represented the Engineers when the bargaining began prior to 1951, and had continuously represented the Engineer employees of the companies thereafter. He testified that Hester had participated on behalf of the Engineers in the annual negotiations from 1946 through 1957. A few days later Baxter went to the office of the Engineers to talk to Hester. He was told by Jennings that Hester had been given his pension, and had been relieved of his duties by the Engineers, that Jennings was in charge. Jennings said he had telephoned to Mr. Carman at San Francisco and had been advised that if the contract was sent to San Francisco, Carman would sign it. Baxter left the contract with Jennings. He did not hear from the Engineers for some time there- after so he called Howell of the Teamsters. Howell reassured him that the Engi- neers would sign the contract. Early in November, Baxter was in San Francisco so he called at the office of the Engineers and endeavored to see Carman, the local manager of the Engineers, but was informed that Carman was at Redding. Finally, Baxter managed to see Carman, who told him that the Engineers would not sign the agreement. Baxter told Carman that the failure and refusal of the Engineers to sign the agreement would be an unfair labor practice under the Act. Carman told him to "Go ahead and file charges," but that the Engineers would not sign the contract. Thereafter, Baxter obtained the signatures of representatives of the Teamsters, Machinists, and Laborers. When he had done that, he again called Carman and informed him that he had secured the signatures of all the other Unions. Carman said he would take the matter up with his executive board. Around November 29, Baxter received a letter saying that the Engineers again refused to sign the agreement. 6. Poststrike conduct of the parties The employees who testified to the facts of the union meeting also testified that upon their return to work after the strike, they were paid in accordance with the wage scale accepted at the union meeting. Members of all four Unions received the agreed increase of 121/2 cents per hour. However, the Engineers refused to recognize the contract. James B. Jennings, the Engineer representative, testified that a couple of the men consulted him in regard to questions or grievances arising under the contract but that he told them that the Engineers now had no contract with the Employer so he could not assist them. He admitted, however, that the Union had continued to collect dues from all its members working for the Employer. Jennings also shed some light on the authority of Hester and himself. He testified that Victor S. Swanson, the then local manager of the Engineers, transferred him OPERATING ENGINEERS LOCAL UNION NO. 3, AFL-CIO 939 from Oakland to Redding , California, effective April 16, 1956. Swanson instructed him to assist Field Representative E. A. Hester , who was in charge of the Redding district for the Union . This district encompassed six counties in northern California. The Engineers own and operate a building in Redding in which Jennings and Hester had offices and from which the business of the Union is conducted . Jennings readily admitted that the first contract between Trinity Sand & Gravel and the Engineers was negotiated and signed by himself as representative of the Engineers. Jennings also testified that in February 1958 he was instructed to forward all con- tracts to the San Francisco office of the Union for final approval and signature. He also testified that until October 28 , 1957 , neither Hester nor himself at any time in- formed any representative of the Employer that they were without full and complete authority to negotiate and sign a contract on behalf of the Engineer -members among the employees. In the course of his testimony Jennings said that after the settlement of the strike, on one occasion he had talked to Kettlewell . He asked about the possibility of Kettlewell withdrawing from the Association and signing a particular contract with the Engineers , which Jennings thought would meet with the approval of Carman. He said this contract was known as the Northern California Rock, Sand and Gravel Agreement . Jennings also admitted that on this occasion he told Kettlewell that the Engineers could put a picket line around Kettlewell's operation because now Kettle- well did not have an agreement with the Engineers. 7. The defenses The answer of the Engineers set up a variety of defenses to the complaint. The answer alleged that: ( 1) The appropriate unit of employees alleged in the complaint was and is not in fact appropriate ; ( 2) the Engineers did not arrive at a satisfactory agreement with the Employer ; ( 3) since July 1957, the only officer of the Engineers possessing authority to execute a labor agreement is the supervisor of the Engineers, N. J. Carman , appointed by the general president of the Union, the late William Maloney, and having the title of Local Union Manager ; (4) the appointment of Carman was in accordance with the constitution of the Union and that on or about August 1957 , Carman officially notified all other agents and representatives of the Engineers that henceforth he was the only officer, agent , or representative of the Engineers who had authority to execute labor agreements with employers ; ( 5) the obligation of the Engineers under the Act to represent equally all employees prohibits the execution of the alleged mutually satisfactory labor agreement , since the majority of the employees so represented rejected the alleged mutually satisfactory labor agree- ment; ( 6) the Engineers was and is prohibited by Section 8(b) (1) (A ) and (2) of the Act from executing the alleged mutually satisfactory labor agreement; (7) the al- leged mutually satisfactory labor agreement is not a complete agreement ; and (8) on November 29, 1957, Respondent by letter offered to meet and bargain with the em- ployers upon request. At the hearing many items of evidence which the representative of the Engineers sought to introduce under the above allegations were ruled inadmissible , upon proper objection. In the course of the hearing, the Trial Examiner asked the representative of the Engineers why the Engineers did not sign the agreement . He replied that the Engineers did not sign the contract because ( 1) Mr. Carman , the Local Union Man- ager, regarded the contract as unsatisfactory in regard to wages, hours , and other conditions of employment; (2) Mr. Carman felt that under the circumstances present in this case there was no moral obligation on the Engineers to sign the contract; and (3) because his legal advice to Mr. Carman was that there was a question of juris- diction in the case, and that as a result he did not believe there was any legal obliga- tion on the Engineers to sign the contract. 8. Posthearing motions On April 30, 1958 , the representative of the Engineers made a motion pursuant to Section 102 . 37 of the Board's Rules and Regulations (Series 6 as amended ) that the Trial Examiner disqualify himself on the ground of personal bias and submitted there- with his affidavit as basis for the motion . The Charging Party filed papers in opposi- tion to the motion. The motion is hereby denied on the ground that no basis for such disqualification has been shown, and the motion papers and affidavit are hereby in- corporated in the record of the proceedings. On May 6, 1958 , the representative of the Engineers submitted some 13 docu- ments, with copies, to the Trial Examiner and moved that these documents be placed 940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the rejected exhibit file . These documents had been offered in evidence and re- jected at the hearing . The order prayed for is granted , and the documents are hereby added to the rejected exhibit file of the proceedings , with the designation assigned each in the motion papers. On the last-mentioned date, the representative of the Engineers also, moved to amend his answer by striking paragraphs I and J thereof . The motion to amend is denied on the ground that it is not timely. Concluding Findings Upon the undisputed testimony of Baxter , the employees , and the series of con- tracts in evidence, I find that for many years prior to 1957 the Employer and the four Unions had bargained, and executed contracts covering wages, hours , and working conditions of the employees of the Employer . Apparently , the procedure of the bargaining was found to be satisfactory by all the parties , for they used it on an annual basis. The 1957 negotiations were conducted in accordance with the long-established procedure, and resulted in an agreement between all the parties. I find that at all times, up to October 28, Hester and Jennings , both, gave all the parties to understand that they had full authority to act for the members of the Engineers, in the appropriate unit. There can be no doubt of that authority , for the employees themselves, who were the only principals of Hester and Jennings , ratified the work of their agents in the meeting of October 14, when the employees voted to accept the Employer's offer, call off the strike , and return to work. Only after that did the Engineers refuse to sign the freely negotiated contract. This refusal of the Engineers to sign the contract I find to be a violation of Section 8(b)(3) of the Act. A fact often lost to sight in discussions of the Act is that it creates rights in employees which they may exercise through the agency of unions. The Act confers no rights on unions , except one-that unions, after proper designation, may-act as agents of employees in obtaining for them the benefits of the right conferred by the Act. Under the circumstances here present, the principals of Hester and Jenn- ings were the employees in the unit , for whom Hester and Jennings purported to act. The Employer, the representatives of the other three Unions , the men, and , indeed, both Hester and Jennings, clearly understood this, for when the men voted to end their strike and return to work at the new wage scale, all the union representatives, including Hester and Jennings , accepted the decision of the men with good grace, and said that the contract when presented would be signed . Since the two princi- pals, the Employer and the employees , had ratified and accepted the terms of the contract worked out by their representatives , after that instant, there was no author- ity in the Engineers to do anything but to sign the agreement. Since unions as representatives of employees have only such authority as employees confer on them, the Engineers , after the vote of the men , had no choice but to sign the agreement. This conclusion follows from the very nature of the Act , and is inescapable in the present circumstances . Apparently in good faith , all representatives bargained to an impasse on wages, and the employees struck to obtain an increase in pay. This was not a strike of the unions; it was a strike of employees, for a strike has been defined as a concerted refusal of employees to perform work for an employer, until some question concerning wages, hours , or conditions of employment is settled by employer-employee agreement. The only persons who could withhold the performance of work were the employees . It was their strike, and they could call it off at any time they wished. The union could not interfere with their decision, for a strike is a concerted activity and the Act expressly guarantees that each employee may engage in concerted activities , or refrain from so engaging , as, when and as long as he desires . Acting in concert, the employees struck, and , acting in concert, they accepted the offer of the Employers , called off their strike, and went back to work. The dissatisfaction of any union official with their decision was of no legal effect thereafter, and any conduct of the union which ran contrary to the expressed decision of the men was a breach of the union 's duty to the men. Otherwise, the desires of the men could be frustrated by the conduct of a recalcitrant agent. Under the principles of good-faith bargaining , I find that the Engineers must sign the contract agreed to by the employees in this meeting , and I find that the Engineers' refusal to execute that contract is in bad faith . The evidence is undisputed here that for many years the Engineers had a working arrangement to conduct negoti- ations with the other unions and the Employer , and that the final terms of the con- tract would be submitted to the men for approval or disapproval . This procedure was followed faithfully in 1957, so the refusal of the Engineers to sign the contract was a breach of faith toward the Employer, the other three Unions , and the em- OPERATING ENGINEERS LOCAL UNION NO. 3, AFL-CIO 941 ployees. It is true that the Employer is paying the new wage scale and living up to the terms of the new contract , but the employees are to receive an additional raise in 1958, and they are legally entitled to have their rights in this future increase set forth in a written contract signed by the representatives of all parties , including their own.6 In the light of all the undisputed evidence I can find no merit in the various con- tentions urged by the Engineers to justify its conduct . From all the evidence, it is clear that the Engineers did not like the terms of the 1957 contract , so have sought to disown it. One further point. The evidence discloses that Jennings, the business represent- ative of the Engineers, having refused to sign the instant contract , has also refused to process grievances of the men under the contract , and has threatened to picket one of the employers because the employer "did not have a contract" with the Engineers . He also testified that despite his refusal to sign the contract , or process grievances, the Engineers have continued to accept periodic dues from the men. I point this out for the consideration of the Board , for I deem it to be in derogation of the spirit and letter of the Act for the Engineers to collect dues from these men, while the union , at the same time, refuses to execute the contract , and refuses to represent the men in the adjustment of grievances. Under the circumstances , the Board may desire to order some specific remedy for that particular situation. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Engineers set forth in section III, above , occurring in con- nection with the operations of the Employer described in section I, above, have a close, intimate, and substantial relation to trade, traffic , and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that the Engineers has engaged in certain unfair labor practices, it will be recommended that the Engineers cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Having found that the Engineers , together with the Teamsters , Machinists, and Laborers , as representatives of the majority of the employees in the appropriate unit, engaged in bargaining with the representatives of,the Employer , and agreed upon the terms of a contract governing wages, hours, and conditions of employment of the employees of the Employer , and thereafter refused to execute the formal document, previously agreed to, as aforesaid, the Trial Examiner will recommend that the Engineers be required , upon request , to execute and sign the said labor agreement, as the representative of its member-employees in the aforesaid appropriate unit. Upon the basis of the above findings of fact and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. The Engineers, Teamsters , Machinists, and Laborers are labor organizations within the meaning of Section 2(5) of the Act. 2. The employees of G. E. Oaks, an individual, doing business as Oaks Sand, Gravel and Cement Products Company and Red Bluff Sand and Gravel; Hal E. Goodyear and Robert L. Marshall, copartners , doing business at Trinity Sand & Gravel ; Estelle P. Hein, an individual, doing business at J. H. Hein Company; and J. R. Kettlewell, an individual , herein collectively called the Employer, constitute a unit appropriate for the purpose of colective bargaining within the meaning of Section 9(b) of the Act , and the companies above named were and are engaged in commerce within the meaning of the Act. 3. The Engineers, the Teamsters , the Machinists, and the Laborers were on October 14, 1957, and at all times thereafter have been and are, the exclusive repre- sentatives of all the employees in the aforesaid unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 4. By refusing on October 28, 1957, and at all times thereafter to execute a labor contract with the Employer aforesaid , to which it had previously agreed, as the 6 N.L.R . B. v. R. D . Nesen , 211 F. 2d 559 ( C.A. 9), cert. denied 348 U . S. 820: Sheet Metal Workers Union, Local No. 65. AFL-CIO (Inlavd Steel Products Company), 120 NLRB 1678. 942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD exclusive representative of its members in the aforesaid appropriate unit, the Engineers has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(b) (3) of the Act, as amended. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Sears, Roebuck and Company and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 71, Petitioner. Case No. 11-RC-1132. April 28, 1959 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, hearings were held before John M. Dyer, hear- ing officer. The hearing officer's rulings are free from prejudicial error and are hereby affirmed.' 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 em- ployees 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 to represent a unit of all truckdrivers and helpers at the Employer's service building located in Charlotte, North Carolina. The Employer urges that the only appropriate unit is one consisting of all selling and nonselling employees at its retail store and service building. It also asserts that the employees involved are not ordinary package delivery truckdrivers, but are primarily de- livery servicemen, indistinguishable from other servicemen who also use the Employer's trucks and whom the Petitioner would exclude. It therefore contends that the requested unit is based on the extent of organization and the petition should be dismissed. There is no his- tory of collective bargaining at the Employer's Charlotte, North Carolina, operation. The Charlotte operation consists of a retail store, at which approxi- mately 75 percent of the warehousing, by dollar volume, is performed, 'American Retail Federation, as amicus curiae, filed a brief. 3 The Employer's motion to dismiss the petition on the ground that there is no evi- dence of compliance with Section 9(f), (g), and (h) of the Act by the Eastern Con- ference of Teamsters and by Joint Council No. 9, allegedly parties having an interest in these employees , is denied inasmuch as the Board has administratively determined that these organizations are presently in compliance. 123 NLRB No. 113.