Local 294, Int'l Brotherhood of Teamsters, Etc.

Local 294, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America ; and its agents Nicho- las Robilotto, Edward Smith and Louis Bonomo and K-C Refrigeration Transport Company, Inc. Case No. 2-CB-2427. January 5, 1960 DECISION AND ORDER On July 21, 1959, Trial Examiner Charles W. Schneider issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had not engaged in and were not engaging 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 attached hereto. Thereafter, the General Counsel and the Company filed exceptions to the Intermediate Report, together with supporting briefs. 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 Interme- diate Report, the exceptions and briefs, and the entire record in this case, and finds merit in the exceptions of the General Counsel and the Company. Accordingly, the Board adopts the findings, conclusions, and recommendations of the Trial Examiner only to the extent con- sistent herewith. From about 1951, K-C had recognized Local 294 as the exclusive bargaining representative of its employees. From at least 1955, the Company had been a member of Highway Transport Association of Upstate New York, an association of employers which bargained for its members with Local 294. As more fully set forth in the Intermediate Report, the contract between the Association and Local 294 was due to expire on July 31, 1958.' In June, the Kowalchyks 2 informed Sol Rubenstein, the As- sociation's general counsel, that K-C required certain concessions be- cause of its unique operating problems. Rubenstein informed K-C that the Association would negotiate only for a uniform contract; he advised the Kowalchyks to confer separately with Local 294 concern- ing the special concessions. Thereafter, on July 9, K-C sent a letter to Local 294, in which it stated that the Company would go along with the Association on all other points of the contract, but that it required 1 Unless otherwise indicated , all dates hereafter are in 1958 2A11 the stock in the Company is owned by the Kowalchyk brothers ( Peter, Jr ., John, Paul, and Joseph ) and by their brother-in-law, William Caldwell. 1 126 NLRB No. 2. 554461-60-vol. 126-2 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the inclusion therein of two specified clauses. The Union did not reply to this letter. On July 29, the Kowalchyks retained Robert H. Jones III, an Albany, New York, attorney, to represent them in negotiations with Local 294. On August 8, Jones telephoned Nicholas Robilotto, presi- dent of Local 294, and informed him that he ( Jones ) represented K-C. He then outlined K-C's position , explained the provisions sought by the Company, and requested a meeting. Robilotto answered that he was busy at that time , but that the Union would do all it could to work out the Kowalchyks' problems. On September 17, after the As- sociation and the Union had reached substantial agreement on a new contract, Robilotto, returning a call from Jones the day before, told Jones that there would be no need for negotiations , that K-C would have to take the same contract as everyone else. When Jones sug- gested that they meet nevertheless , Robilotto said that he was too busy with other negotiations. He agreed, however, to call Jones when he was ready to talk. Robilotto did not call Jones. Between September 20 and 30, Jones tried unsuccessfully to contact Robilotto by tele- phone. Although he requested that the calls be returned , they never were. On October 3, Robilotto called K-C and arranged a meeting for October 10 at union headquarters ; he also suggested that the Kowalchyks bring Sol Rubenstein along. However, when the Kowalchyks, accompanied by Jones, arrived at union headquarters at the appointed time, they were informed that Robilotto was out of town. The meeting was never held. On October 24, Robilotto called K-C and inquired whether the Company had paid the retroactive wages due employees under the new Association contract . When in- formed that these wages had not been paid because the Company had not yet negotiated a contract with the Union, Robilotto responded that he would take the matter to the grievance board. On November 25, December 2, and 8, Louis Bonomo, then an organ- izer for the Teamsters Union and an old acquaintance of the Kowalchyks, contacted the Kowalchyks and attempted to arrange a meeting between them and Robilotto. The Kowalchyks repeatedly in- formed Bonomo that they wished to meet with the Union, but only with Jones present. Bonomo, however, replied that Robilotto would not meet with Jones. On December 4 Bonomo and Edward Smith, business agent of Local 294, met John Kowalchyk . Smith suggested that the Kowalchyks attend a meeting without Jones and see what the Union had to offer ; thereafter, the Company could bring its lawyer, if it still wanted to . The Kowalchyks rejected this offer, reiterating that they would meet only if Jones were present. On December 9, Bonomo, in the company of two representatives of Local 294, came to K-C's office . When informed that the Kowalchyks LOCAL 294, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 3 were out, they told the office manager to "let the responsible officials of the Company know that if the Company didn't begin at once to live up to the terms of the [Association] contract, the new contract, that economic action would begin the following day." On December 10, three of K-C's employees struck. Bonomo performed picket duty on that date and on a number of occasions thereafter.' On December 12, K-C filed the charge in the instant case; it also filed a charge alleging that the same Respondents had violated Section 8(b) (4) (A) of the Act .4 On the same date, K-C also filed a repre- sentation petition and, on July 1, 1959, an election was held among the Company's employees; the Union lost this election.5 The Trial Examiner recommended that the complaint be dismissed in its entirety, on the grounds that Section 8(b) (1) (B) applies only to majority representatives, which the General Counsel had not proved was true of the Respondent Union, and that, in any event, the Re- spondents' conduct did not constitute restraint or coercion. For the reasons stated below, we disagree. Previous to July 1958, K-C had bargained, through the Association, with Local 294. The record clearly shows that, in that month and thereafter, K-C sought to bargain with the Union, and Jones was hired for the sole purpose of negotiating a new contract with the Union. It is also clear that the Union was equally anxious to meet and negotiate with K-C; Robilotto, Smith, and Bonomo repeatedly at- tempted to arrange a meeting between the parties. That such a meet- ing never occurred was due only to the Company's insistence, in ac- cordance with its statutory right, that Jones, its authorized repre- sentative, participate in the negotiations. Thus, Robilotto refused to meet with Jones despite the latter's requests; Bonomo repeatedly at- tempted to arrange a meeting between the Kowalchyks and the Union without Jones; and Smith suggested that the Kowalchyks could bring a lawyer only after they first met with the Union and looked over the Union's contract offer. Accordingly, we find that Local 294, although 'In the late summer of 1958, Bonomo was selected to represent the Teamsters Union in a joint organizing campaign with the Butchers ' Union. Although not a member of Local 294, he was, during this period , paid by Local 294, which was, in turn , reimbursed by the joint organizing committee Bonomo's role as an intermediary for Local 294 is apparent in the light of his activities from November 25 up to and during the strike. Thus, Bonomo represented that he had been sent by Robilotto to arrange a meeting; he accompanied Smith, a conceded agent, when Smith met with John Kowalchyk on December 4; he accompanied two representatives of Local 294 on December 9, when the Company was warned to live up to the Association contract or be struck ; and he was present during the strike itself and participated in the picketing . Under these circum- stances, we find that, during the period in question, Bonomo was an agent of Local 294. Local 294, International Brotherhood of Teamsters , etc. (K-C Refrigeration Transport Company, Inc.), 124 NLRB 1245; Horn & Hardart Baking Company, 115 NLRB 1184. In this case, the Board found, in agreement with the Trial Examiner, that the Re- spondents had violated Section 8 (b) (4) (A) of the Act. Local 294, International Brotherhood of Teamsters , etc (K-C Refrigeration Transport Company, Inc.), supra. 5 Case No. 2-RM-981 ( unpublished). 4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it sought to meet with the Company, was conditioning negotiations for a new contract upon K-C's exclusion of Jones. Section 8 (b) (1) (B) of the Act provides : It shall be an unfair labor practice for a labor organization or its agents-to restrain or coerce . . . (B) an employer in the selection of his representatives for the purposes of collective bar- gaining or the adjustment of grievances. Both the language of this section and its legislative history 8 demon- strate Congress' intention to safeguard the rights of employers freely to designate representatives of their own choosing for the purposes, inter alia, of collective bargaining. There is no evidence that Congress intended, as the Trial Examiner in effect found, that Section 8 (b) (1) (B) was to be subsidiary to Section 8 (ib) (3). This is not a case where a minority union has refused to deal with an employer because it does not represent a majority of the employees in an appropriate unit. On the contrary, Local 294 had, for many years, been recognized as the bargaining representative of K-C's employees. During the period in question, neither K-C nor the Union questioned the latter's status as statutory representative. At no time did the Respondent refuse to meet with K-C because of an alleged lack of the majority status? At all times, each party wanted to meet with the other to negotiate collective bargaining problems." The sole obstacle to such meetings was the Respondents' insistence that they take place without Jones being present. In other words, under the threat of not bargaining and of a strike, the Respondents were attempting to exercise a veto power over K-C's selection of representatives for the purposes of collective bargaining. It seems to us that this is precisely the sort of conduct which Section 8(b) (1) (B) was intended to prohibit, regardless of whether the labor organization involved was the statutory bargaining representative.9 6 See S. Rept. 105, 80th Cong, 1st sess. 21 (1947) ; 93 Cong. Rec. 3953-3954, 4226, 4896, 5106 (1947). 7 As noted above, Local 294 had been recognized in 1951 ; the last contract to which K-C was a party had been executed in 1955 and terminated on July 31, 1958. The events here in issue occurred between the date of the expiration of the contract and the strike, December 10, 1958. It was not until after the strike had begun that K-C filed its representation petition. The election, which the Union lost, was held almost a year after the complained-of conduct began. In view of the history of recognition and bargain- ing, we do not consider the election of July 1959 to be dispositive of the issue of Local 294's majority status during the "critical period" in 1958. See Shamrock Dairy, Inc., 124 NLRB 494. 8 We agree with the Trial Examiner that it would have been an unfair labor practice for the Union, if it were not the majority representative, to enter into an exclusive bargaining agreement. 8In the Slate Belt case (International Ladies' Garment Workers Union (Slate Belt), 122 NLRB 1390, temporarily enfd. 44 LRRM 2003 (C.A. 3) ), the international union, which was not the bargaining representative and with whom the employers had no obliga- tion to meet (The Standard Ott Company of California, 92 NLRB 227, 235-236, re- manded on other grounds 196 F. 2d 892 (C.A 6)), was held to have violated Section 8(b) (1) (B) by promulgating the policy under which the locals refused to meet with a particular employer representative. LOCAL 294, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 5 We also find that the Respondents sought to achieve their unlawful objective by restraint and coercion. In the Paddock Pools 10 and Slate Belt 11 cases, the Board held that a union's refusal to participate in the administration of a collective-bargaining agreement unless the employer withdrew certain named representatives, constituted re- straint and coercion in violation of Section 8(b) (1) (B). The mere withdrawals, the Board said, were "designed to exert some restraint or coercion . . . over and above a mere attempt at persuasion in a free market place of ideas." In the present case, the Respondents not only refused to meet with K-C so long as Jones was its representative, but also threatened to strike and did strike to compel capitulation to their demands. We find that by the foregoing conduct the Respondents restrained and coerced the Company in violation of Section 8(b) (1) (B) of the Act. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents, as set forth above, which have been found to constitute unfair labor practices, occurring in connec- tion with the operations of the Company, described in the Interme- diate 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. CONCLUSIONS OF LAW 1. K-C Refrigeration Transport Company, Inc., is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Local 294, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is a labor organization within the meaning of Section 2 (5) of the Act. 3. Nicholas Robilotto, Edward Smith, and Louis Bonomo were, at all times material herein, agents of the above-named labor organization. 4. By failing and refusing to meet with the duly authorized repre- sentative of the Company for the purpose of collective bargaining, the Respondents have restrained and coerced, and are restraining and coercing, the Company in the selection of its representative for the purposes of collective bargaining. • 10 Southern California Pipe Trades District Council No. 16, etc. (Paddock Pools), 120 NLRB 249. "International Ladies' Garment Workers Union ( Slate Belt ), supra. 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE REMEDY Having found that the Respondents have engaged in and are engag- ing in unfair labor practices, we shall order them to cease and desist therefrom. 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 Respondents, Local 294, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, its agents Nicholas Robilotto, Edward Smith, and Louis Bonomo, and their officers, agents, successors, and assigns, shall : 1. Cease and desist from attempting to dictate to, or in any other manner restraining or coercing, IC-C Refrigeration Transport Com- pany, Inc., in the selection of its representatives for the purposes of collective bargaining or in the adjustment of grievances. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post at the Respondent Union's offices and meeting hall at Albany, New York, copies of the notice attached hereto marked "Appendix." 12 Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being signed by the Re- spondent Union's representative and by Nicholas Robilotto, Edward Smith, and Louis Bonomo individually, be posted by Respondent immediately upon receipt thereof and maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondents to insure that said notices are not altered, defaced, or covered by any other material. (b) Mail to the Regional Director for the Second Region signed copies of the aforementioned notice for posting by KC-C Refrigeration Transport Company, Inc., the Company willing, in places where notices to employees are customarily posted. Copies of said notice to be furnished by the Regional Director, shall, after being signed by the Respondents, as indicated, be forthwith returned to the Regional Director for disposition by him. (c) Notify the Regional Director for the Second Region, in writing, within 10 days from the date of this Order, what steps they have taken to comply herewith. CHAIRMAN LEEDOM took no part in the consideration of the above Decision and Order. 19 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." LOCAL 294, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 7 APPENDIX NOTICE TO ALL MEMBERS OF LOCAL '294, INTERNATIONAL BROTIiERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AND TO ALL EMPLOYEES OF K-C REFRIGERATION TRANSPORT 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, as amended, we hereby notify you that : WE WILL NOT attempt to dictate to, or in any other manner restrain or coerce, K-C Refrigeration Transport Company, Inc., in the selection of its representatives for the purposes of collective bargaining. LOCAL 294, INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS, WARE- HOUSEMEN AND HELPERS OF AMERICA, Labor Organization. Dated---------------- By------------------------------------- (Representative ) ( Title) Dated---------------- By------------------------------------- (NICHOLAs ROBILOTTO) Dated---------------- By------------------------------------- (EDWARD SMITH) Dated---------------- By------------------------------------- (Louis BoNOMO) 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 Upon a charge filed on December 12, 1958, by K-C Refrigeration Transport Company, Inc., against Local 294, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America and Nicholas Robilotto, Edward Smith, and Louis Bonomo, here collectively called the Respondents, the General Counsel issued a complaint on February 25, 1959, alleging violation of Section 8(b) (1) (B) of the National Labor Relations Act (61 Stat. 136). Answer denying the commission of unfair labor practices was duly filed on March 16, 1959. Hearing upon due notice was held before the duly designated Trial Examiner at Albany, New York, on April 29 and 30, 1959. The General Counsel, the Respondents and the Company were represented by counsel, participated in the hearing, and were afforded full opportunity to present and to meet evidence, to engage in oral argu- ment, and to file briefs and proposed findings The parties were allowed until June 29, 1959, in which to file briefs. The General Counsel has filed a brief, which has been considered. Upon the basis of the entire record in the case, after consideration of all the relevant evidence and contentions, including my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY K-C Refrigeration Transport Company, Inc., is a New York corporation main- taining its pricipal office and place of business in the city of Cohoes, New York, were it is engaged in providing refrigerated trucking and related services. 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD During the past year the Company, in the course and conduct of its business opera- tions, performed services valued at in excess of $100,000, of which services valued at in excess of $50,000 were furnished to various enterprises including, inter alia, Swift and Company, Wilson and Company, Armour and Company, and Dubuque Packing Company. Each of the named enterprises annually produces, handles, and ships out of the State wherein said enterprise is located, goods valued in excess of $50,000. The Company is engaged in commerce within the meaning of the Act. H. THE LABOR ORGANIZATION INVOLVED Respondent Union, Local 294, is a labor organization within the meaning of Section 2 (5) of the Act. Nicholas Robilotto and Edward Smith are concededly agents of Local 294. Whether Louis Bonomo is also such an agent need not be determined. See footnote 5, infra. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The issue The issue is narrow. The allegation, in sum, is that the Respondents have re- strained and coerced K-C in the selection of Robert Jones HI, as K-C's bargaining representative. B. Background Prior to July 31, 1958, K-C was a member of the Highway Transport Association of Upstate New York, an association of employers which bargains collectively on behalf of its members. By reason of its designation of the Association as its bargain- ing representative K-C was under contract with Local 294. That contract expired on July 31, 1958, and was ultimately renewed by the Association, but without the joinder of K-C, under circumstances disclosed hereinafter. Prior to the expiration date K-C was notified of Local 294's desire to negotiate a new contract. The expiring contract contained several provisions, principally relating to seniority and the length of the workweek, which, because of certain conditions peculiar to K-C's operations, were unsatisfactory to K-C, and which it determined in early 1958 to seek to change. Pursuant to that resolution K-C wrote the Association in June 1958 stating its desire for special provisions in the new contract applicable to K-C. That letter con- cluded with the statement that "On these two points we will not compromise. Ili Apparently because of unwillingness on the part of K-C to grant unqualified au- thority to the Association to negotiate, and refusal on the part of the Association to negotiate except on a uniform basis, K-C withdrew from the Association and ceased playing dues in September 1958. There is no evidence that notice of this action was given to Local 294. C. The relevant events 1. K-C's proposal of July 9 On July 9, 1958, K-C sent to Local 294 the draft of an agreement covering the special terms which K-C desired in the new contract. In its covering letter K-C asked that this be signed by Local 294. As to the remaining terms of the new con- tract, K-C said that it would "endeavor to go along with the Association." Local 294 did not reply to this letter. 2. The hiring of Robert Jones III On July 29, 1958, K-C retained Robert H. Jones III, attorney-at-law, and an ex- perienced labor negotiator, to represent it in dealing with Local 294. Jones im- mediately sought to communicate with Nicholas Robilotto, president of Local 294, by telephone. Jones made a number of calls over a period of several days without being able to reach Robilotto. On each occasion Jones left his name and phone number, and requested that Robilotto contact him. Jones finally was able to reach Robilotto on August 8, after first identifying himself as a Mr. Johnson. There is no indication that up to that time Robilotto had any reason to know the purpose of Jones' calls. 1 Subsequently K-C expanded its demands to include a third point, unnecessary to detail here. LOCAL 294, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 9 In the August 8 conversation Jones identified himself as having been retained by K-C to negotiate a bargaining contract, explained K-C's problems, and said that he would like to sit down with Robilotto and see what they could work out together. Robilotto replied that he was then engaged in over-the-road and local negotiations and could not meet with Jones at that time. However, Robilotto assured Jones that the matter would be taken care of and effort made to meet K-C's problems. During the following several weeks Jones was on vacation. In the interim the Highway Transport Association and Local 294 reached substantial agreement on a contract. On September 16 Jones called Robilotto again but was unable to reach him. On the following day Robilotto returned Jones' call, and they had a short con- versation. Jones suggested that he and Robilotto meet to discuss an agreement. Robilotto replied that the other negotiations had not been finally concluded, but said that he would call Jones when he was ready to talk. However, Robilotto said that K-C would have to take the same contract as everybody else. Thereafter Jones called Robilotto some four or five times until the end of the month without being able to reach him. Robilotto did not return his calls. 3. The meeting at the Labor Temple On October 3, 1958, Robilotto telephoned K-C and talked to Paul Kowalchyk, one of the family which owns K-C. Robilotto told Kowalchyk, in sum, that he was now able to meet with K-C, and suggested that since K-C was still a member of the Highway Association that Judge Rubenstein, counsel for the Association, should be at the meeting. A meeting was arranged for October 10, 1958, at Local 294's head- quarters in the Labor Temple in Albany. Paul Kowalchyk did not inform Robilotto that K-C was no longer a member of the Association. On the appointed date, October 10, the K-C representatives went to the Labor Temple. Jones appeared also. After some delay they were told by Edward Smith, business agent of Local 294 and a Respondent herein , that Robilotto had been called to New York City on business , and that the time of his return was uncertain. Jones advised Smith that he (Jones) represented K-C and asked that Robilotto call him. Robilotto did not call Jones. The uncontradicted evidence is to the effect that Robilotto was actually in New York City on October 10.2 The record suggests-rather vaguely-that thereafter , about October 23, 1958, Jones wrote a letter to an official or attorney for the Eastern Conference of Teamsters setting forth K-C's position with respect to seniority-one of the disputed issues. There is no indication of any further attempt at communication between Jones and Local 294, either written or oral. 4. The conversation of late October The new contract between the Highway Transport Association and Local 294 provided for wage increases retroactive to August 1. Late in October, about October 24, Robilotto telephoned Peter Kowalchyk, K-C's vice president, and asked whether K-C had paid the retroactive wages as yet . Kowalchyk said that K-C had not, because it had not yet negotiated a contract. Robilotto told Kowalchyk that he would take the matter to the grievance board , a body of union and employer repre- sentatives established to dispose of disputes under the Association contract. There is no indication in the evidence that Robilotto ever did so. 5. The entrance of Bonomo, and the meeting with Smith Beginning on November 25, 1958 , Louis Bonomo, then an organizer for the Teamsters Union and the Butchers Union and an old acquaintance of the Kowal- chyks, contacted Peter and John Kowalchyk, K-C officials, on a number of occasions, in an effort to arrange a meeting between K-C and Local 294.3 The substance of the ensuing conversations is as follows. ' Robilotto so testified , producing documentary evidence in the form of an apparently genuine hotel bill in corroboration. Business Manager Smith and Union Steward Mirra testified that Robilotto was not present in the Labor Temple that morning. In this posture of fact, denied testimony by a K-C representative to the effect that during the following week Union Steward Mirra stated that Robilotto had been present In the office on October 10, but had refused to appear because of the presence of Jones, is not suffi- ciently probative to warrant rejection of the direct and sworn evidence to the contrary. ' At that time Bonomo was on leave from his employer , the A and P Company. At the time of hearing he had returned to his regular employment , and apparently occupied no official position with Local 294. 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bonomo represented that he had been sent by President Robilotto to arrange a meeting. The Kowalchyks said that they would negotiate only through Jones. Bonomo replied that Robilotto wanted to meet without any lawyers present, saying that if K-C brought its lawyers, Local 294 would have to do the same. Bonomo also said that Robilotto did not want to meet with Jones. On December 4 John Kowalchyk met Bonomo and the Local's Business Agent Edward Smith by chance at the Central Warehouse in Albany. Smith asked why K-C did not want to meet with the Union. John Kowalchyk replied that K-C did want to meet, but would do so only with Jones present. Smith then stated that the Union did not want lawyers present on either side. Smith suggested that the Kowal- chyks "come and look at what we have to offer," adding that if K-C then felt that it wanted its lawyer, it could bring him. K-C took the proposal under advisement, but subsequently declined it. 6. The strike On December 10, 1958, Local 294 called a strike against K-C. On the day be- fore the strike Louis Bonomo and two unidentified asserted representatives of Local 294 told K-C's office manager, Kenneth Guy, that if K-C did not begin at once to live up to the terms of the new Association contract "economic action" would begin on the following day. Bonomo performed picket duty on December 10 and was present at the picket line on a number of occasions thereafter. 7. The various proceedings Shortly after the strike began, on December 12, 1958, K-C filed a petition and several charges with the Board, as follows: (1) An RM petition for an election, in which K-C questioned Local 294's representative status (Case No. 2-RM-981). It is judicially noted that the Board found that a question concerning representation existed, and directed an election which was held on July 1, Local 294 losing de- cisively; (2) a charge of secondary boycotting activity by Local 294, on which a hearing was recently held before Trial Examiner Arthur Leff (Case No. 2-CC-491); and (3) the present charge. Sometime later Local 294 filed a charge alleging refusal to bargain by K-C (Case No. 2-CA-6430). At the time of the instant hearing that charge was under investigation by the Regional Office. D. Concluding findings The complaint alleges that, since July 30, 1958, the Respondents have, in violation of Section 8 (b) (1) (B) of the statute, restrained and coerced K-C in the selection of representatives for the purpose of collective bargaining and adjustment of grievances by: 7(a) failing and refusing and threatening to refuse to meet with the duly designated representative of K-C upon request, at reasonable times and confer in good faith with respect to wages, hours of employment, and other terms and conditions of employment and the negotiation of an agreement and any question arising thereunder; unless and until the Company dispenses with the services of Robert H. Jones III, its duly designated bargaining representative; and (b) causing, or attempting to cause, K-C to select as representative for the purpose of collective bargaining and the adjustment of grievances, a person or agency other than Robert H. Jones III, who has been designated by said K-C for such purposes. Section 8(b) (1) (B) states the following: It shall be an unfair labor practice for a labor organization or its agents- (I) to restrain or coerce . . . (B) an employer in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances. Section 8(a)(1) and (b)(1)(A) of the Act contain similar provision protecting correlative rights of employees from employer and union coercion. Thus the freedom of both employees and employers to bargain collectively through representatives of their own choosing is statutorily guaranteed. Unless justified by extraordinary circumstances, a refusal by an employer to deal with the individuals selected by an exclusive bargaining representative to act for it, therefore constitutes a refusal to bargain and restraint and coercion. Roscoe Skipper, Inc., 106 NLRB 1238, enfd. 213 F. 2d 793 (C.A. 5); NLRB v. Deena Artware Inc., 198 F. 2d 645 (C.A. 6); N.L.R.B. v. Kentucky Utilities Co., 182 F. 2d 810 (C.A. 6). LOCAL 294, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 11 In the past the Board has held that a union which is a bargaining agent may law- fully waive its right to be represented in negotiations by particular individuals, or agree to limit its representatives to particular classes of persons. Taormina Com- pany, 94 NLRB 884; Shell Oil Company, 93 NLRB 161. As a corollary an employer could also lawfully seek to secure agreement to that effect by negotiation, providing that he did not adamantly insist thereon as a condition of agreement on bargaining matters. Ibid. I deem this the present law of the Board.4 For a union which is the bargaining representative of employees under contract with employers to refuse to meet or to deal with persons designated by the employers to handle grievances under the contractual machinery established to dispose of disputes arising under the agreement is restraint and coercion in violation of Section 8(b)(1)(B). Paddock Pools of California Inc., 120 NLRB 249; Slate Belt Apparel Contractors Association, Inc., 122 NLRB 1390, enfd. 44 LRRM 2003 (C.A. 3). In the Paddock Pools case the unions and employers operated under a collective- bargaining contract which provided for a Joint Board composed of union and employer representatives which rendered final and binding decisions on grievances arising under the contract. The unions there objected to a particular employer representative, Jeanney by name, and refused to attend Joint Board meetings in which Jeanney participated. The Board found that the unions' action constituted restraint and coercion within the meaning of Section 8(b)(1)(B). The Board there said: The Respondents participation in these meetings was obviously of value to the Employers Council in maintaining morale and uninterrupted production. Thus, it appears that the Respondents withdrawal was designed to exert some restraint or coercion on the Employers Council over and above a mere attempt at persuasion in a free market-place of ideas, and we so find. In the Slate Belt case the unions and their agents refused to administer the contract between the unions as collective-bargaining representatives and the employer asso- ciation, and to negotiate the settlement of grievances and strikers thereunder, so long as one Robert Mikus was the employers' representative for such purpose. In finding that action violative of Section 8(b)(1)(B) the Board said: As in Paddock Pools, the Respondents were not content merely to request or seek to persuade the employers to eliminate the selected representative, but re- fused to perform their statutory duty of representing the employees in the settlement of grievances and strikes. Thus, such a withdrawal from participat- ing in negotiations of this nature "was designed to exert some restraint or coer- cion . . . over and above a mere attempt at persuasion in a free market place of ideas. . . .. [Emphasis supplied.] On the basis of the foregoing authority I have concluded that the instant complaint should be dismissed, for the reasons that: (1) The Respondents were not under a statutory duty to meet with any representative of K-C; and (2) even if the Respond- ents were under such a duty, their conduct here did not constitute restraint or coercion within the meaning of the statute. The Refusal To Meet It is seen that the gravamen of the violation in the Paddock Pools and Slate Belt cases was the refusal of the unions "to perform their statutory duty of representing employees in the settlement of grievances and strikes ." Manifestly that statutory duty includes a requirement for the negotiation of collective -bargaining agreements. However, there can be no such duty unless the union is the exclusive bargaining agent of the employees . In the instant case there is neither proof nor assertion that Local 294 was such an agent. There being no statutory duty in the Respondents to meet with K-C or Jones it must be found that the failure or refusal of the Respond- ents to meet with K-C's representative for bargaining purposes-alleged in Section 7(a) of the complaint-was not violative of Section 8(b)(1)(B ). Manifestly, if 4 In the case of Paddock Pools, 120 NLRB 249 , more fully referred to hereinafter, the Board recently said : we find it unnecessary to decide whether an agreement would be a valid defense if it in fact contained clear provision limiting or qualifying the representatives eligible to act for either party. The full reach of that language is not clear . However, since there is no indication in the Paddock opinion that the prior cases are being overruled , they must be considered binding precedents here. 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the action itself was lawful, declarations of intention to engage in it were equally so, whether characterized as statements or as threats. It is not an unfair labor practice for an employer to refuse to deal with the repre- sentatives of a minority union : The New York Times Company, 26 NLRB 1094, 1105; Briggs Manufacturing Co., 75 NLRB 569, 584; Mooresville Cotton Mills, 2 NLRB 952, 955. It necessarily follows that it is not an unfair labor practice for such a union to refuse to meet with the representatives of an employer . It is an unfair labor practice for a minority labor organization to enter into an exclusive bargaining agreement . (Bernhard-Altman Texas Corporation, 122 NLRB 1289). The organization therefore cannot be under a duty to negotiate one. What the result would be if Local 294 had sought-or refused-to negotiate an agreement solely for its members need not be decided, since that issue is not presented. The reason that representative status in Local 294 is not alleged by the General Counsel and K-C may be understood. At the time of the instant hearing K-C's petition disputing the existence of such status was pending before the Board In ad- dition, Local 294's charge against K-C of refusal to bargain was under investigation by the Regional Office. As assertion here that Local 294 was the statutory repre- sentative was foreclosed, so far as K-C was concerned, by its RM petition; and so far as the General Counsel was concerned , might have concluded matters at issue in the 8(a) (5) case. The Local 294 was the representative under the expired contract, aspired to recognition as such under the new one, and that K-C did not initially contest that aspiration, is not a substitute for allegation and proof which the com- plainants forbear to make. The Attempt To Cause This leaves for disposition 7(b) of the complaint : causing or attempting to cause K-C to select a representative other than Jones. The finding that the Respondents were under no duty to meet with K-C does not conclude the inquiry. The requirement of representative status as a condition of illegality in a refusal to meet does not absolve all action by an undesignated union calculated to exert compulsion upon an employer in the selection of his representa- tives. Force, fraud, intimidation, or physical or economic reprisal directed to such an end unquestionably constitute restraint and coercion within the meaning of Sec- tion 8 (b) (1) (B), regardless of whether or not the union is a majority representative. In this case, however, the actions of the Respondents involve no conduct of that nature. These acts consist of the following: (1) The failure of Robilotto to get in touch with Jones during the period between September 16 and 30, 1958, and after the October 10 meeting ; (2) Robilotto's statements in his September 16 conversation with Jones to the effect that K-C would have to take the same contract as everybody else; (3 ) Robilotto's threat-if threat it can be called-on October 24 to take the matter to the grievance board if K-C did not pay the retroactive wages negotiated under the Association contract; (4) the attempts by Bonomo and Smith in late November and early December to induce K-C to meet with Local 294 without the presence of lawyers, or without Jones; (5) the threat by Bonomo and the other asserted representatives of Local 294 on December 9 to the effect that economic action-namely a strike-would begin on the following day, unless K-C began living up to the terms of the Asso- ciation contract .5 This is the sum total of Local 294's conduct .6 In my view none of this conduct , either individually or collectively, amounts to restraint or coercion. Robilotto was under no statutory duty to contact Jones. But even if he were, his statement that K-C would have to take the same contract as everybody else is not in the nature of restraint or coercion-anymore than was K-C's declarations in June 1958 that it would "not compromise" on its essential contract demands. Robilotto's threat to take the matter of retroactive pay to the grievance board is of a similar nature. A declaration of intention to submit a 6 1 assume throughout this report, without deciding, that Bonomo was an agent of Local 294 in contacting the Kowalchyks . In view of my disposition of the case I do not find it necessary to reach that question. 6 The General Counsel disclaims any contention that the strike represented an attempt to cause K-C to eliminate Jones as its representative, or constituted restraint or co- ercion. K-C contended only that the strike was the "ultimate coercion" ; meaning thereby that it was the consequence of the restraint inherent in the union action preceding the strike In view of the expressed positions of the General Counsel and K-C it must be found that the strike is of no materiality in connection with the presented issue In any event the record will not support a finding that the strike was intended to influence K-C in the selection of its representative. EVEREADY GARAGE, INC. 13 labor dispute to peaceful adjustment scarcely constitutes restraint and coercion within the meaning of this Act. The attempts to induce K-C to consider the Local's contract proposals before calling in lawyers for assistance in negotiating were not unlawful . As we have seen, Board precedents authorize seeking to persuade a party to bargaining not to select particular individuals or classes as negotiators . Apart from the failure to meet- which is no significance in this connection-the Respondents did not , in my opinion, go beyond that. Hence, even if it be assumed that the Respondents were under a statutory duty to meet with K-C, their attempts to persuade K-C to meet without Jones would be violative of the Act only if insisted upon a condition of agreement on bargaining matters. The Respondents' conduct here did not constitute such an insistence . The Respondents did not make agreement conditional upon the elimina- tion of Jones. Indeed they did not even make meeting conditional upon it. As we have seen , in the last direct exchange of views on December 4, 1958 , Union Business Agent Smith urged John Kowalchyk to look at the Local's proposals, and if K-C then felt that it needed its lawyer to bring him into the negotiations . K-C declined this invitation . Under such circumstances I cannot find that the Respondents in- sisted upon the exclusion of Jones either as a condition of agreement or as a condi- tion of negotiating ; or even that they unqualifiedly refused to meet with him. As to the threat to strike on December 9 unless K-C began to live up to the terms of the Association contract : since the strike itself is not asserted to be restraint or coercion, the threat to engage in it cannot be. In any event , the threat on its face belies any conclusion that it was an attempt to cause K-C to dispense with the services of Jones. For the foregoing reasons it is found that the Respondents' conduct here alleged was not violative of Section 8(b)(1)(B ) of the Act. It will therefore be recom- mended that the complaint be dismissed. [Recommendations omitted from publication.] Eveready Garage, Inc. and International Union of Operating Engineers, Local Union No. 428, AFL-CIO; and Construction, Building Material and Miscellaneous Drivers, Local Union No. 83, affiliated with the International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers. Cases Nos. f1-CA-3334 and 21-CA-3483. January 5, 1960 DECISION AND ORDER On August 20, 1959, Trial Examiner Howard Myers issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in certain unfair labor practices alleged in the consolidated complaint, as amended, and recommending that the complaint be dismissed, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with these cases to a three-member panel [Chairman Leedom and Members Bean and Fanning]. 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 General Counsel's exceptions and brief, and 126 NLRB No. 4.