American Feed Co.

AMERICAN FEED COMPANY 481, and desist order extend to a prohibition against interference in any manner with rights guaranteed under the Act. I shall recommend that the July 1960 election be set aside and another be conducted at such time as may appropriately be done. CONCLUSIONS OF LAW 1. Respondent Employer is engaged in commerce within Section 2(6) and (7) of; the Act, and assertion of the Boards' jurisdiction is warranted. 2. By interrogating employees concerning union membership and activities, by threats of adverse consequences in the event the Union secured representation rights, and by the promise of benefits for employees if they rejected the Union , Respondent, has engaged in interference, restraint, and coercion of employees' rights under the- Act in violation of Section 8(a) (1) of the Act. 3. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 4. Respondent did not engage in an unfair labor practice within the scope of- Section 8 (a)(3) by its action in discharging Ezekiel Thibeaux nor did it engage in. conduct in violation of Section 8(a)(1) of the Act by its wage increase in September- 1960, nor by any threat to refuse to sign a contract with the Union. 5. Respondent has engaged in conduct interfering with employees' right to a free. election, thus affecting the results of the July 15, 1960, election. [Recommendations omitted from publication.] Mary Feifer, d/b/a American Feed Company and Arthur Faison,, Miguel Berrios, Benito Aponte, Silverio Ramos, Manuel Lopez, Ortiz, Isaac Lopez, and Herberto Rivera and Merchandising and Distribution Employees Union Local 210, International- Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind., Party to the Contract Merchandising and Distribution Employees Union Local 210; International Brotherhood of Teamsters , Chauffeurs, Ware- housemen and Helpers of America, Ind. and Benito Aponte, Arthur Faison, Miguel `Berrios, Silverio Ramos, Manuel Lopez, Ortiz, Isaac Lopez, and Herberto Rivera and Mary Feifer, d/b/a American Feed Company, Party to the Contract. Cases Nos. 2-CA-7594, 2-CA-7594-2, 2-CA-7594-3, 2-CA-7654-1, 2-CA-- 7654-2, 2-CA-7654-3, 2-CA-7654-4, 2-CB-3013, 2-CB-3017-1,, 2-CB-3017-2, 2-CB-3020-1, 2-CB-3020-2, 2-CB-3020-3, and' 2-CB-3020-4. November 20, 1961 DECISION AND ORDER On May 16, 1961, Trial Examiner Arthur E. Reyman issued his.. Intermediate Report in the above-entitled proceeding, finding that the Respondents had not engaged in the unfair labor practices alleged, in the consolidated complaint and recommending that the complaint be dismissed in its entirety, as set forth in the Intermediate Report attached hereto. Thereafter, the General Counsel filed exceptions to., the Intermediate Report and a supporting brief. 134 NLRB No. 49. 630849-62-vol 134-32 482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers herein to a three-member panel [Chairman McCulloch and Members Leedom and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- termediate Report, the exceptions and brief, and the entire record in this case, and hereby adopts findings and the recommendations of the Trial Examiner for the following reasons : For some years prior to the events complained of herein, Local 210 ,of the Teamsters and its predecessor union had been the bargaining representative of the Respondent Employer's employees in a unit which at all times material hereto remained substantially the same. On February 3, 1959, when the Employer and Local 210 entered into a collective-bargaining contract, Local 210 represented a majority of the employees in the unit. On May 20, 1960, the Employer and Local 210 entered into a "memorandum of agreement," effective until June 8, 1962, setting forth new conditions of employment, and includ- ing union-security provisions. This contract settled all the terms and condition's of the collective bargain and left only the ministerial act of its formalization. There is no evidence that at the time the parties entered into this memorandum. of agreement the Union had lost its majority. Thus, since the agreement of May 20, with the majority representative,' had stabilized the bargaining relationship between the parties, the validity of the contractual arrangement is not im- paired even though there was an apparent loss of majority between the date of such memorandum and the formalizing thereof into the June 3 agreement.2 Consequently, as the discharges here complained oof were made pursuant to the terms of the contract's lawful union- ,security provisions,3 they were not unlawful. Accordingly, we find in agreement with the Trial Examiner that the Respondents did not violate the Act as alleged. [The Board dismissed the consolidated complaint against the Re- spondents, Mary Feifer, d/b/a American Feed Company, New York, New York, and Merchandising and Distribution Employees Union Local 210, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind.] Shamrock Dairy Inc , et at, 119 NLRB 998 See Standard Oil Company, 119 NLRB 598, 599-600, and cases cited in footnote 2. The memorandum agreement as made formal contained a clause unlawful under Sec- tion 8 (e) of the Act. Mary Feifer, d/b/a American Feed Company, 133 NLRB 214. However, the fact that the Respondents violated Section 8 (e) by executing such a clause and that the contract involved here contained such clause does not render the remainder of the contract including the union-security provisions unlawful or unenforcible. See Section 8 (e) of the Act. AMERICAN FEED COMPANY 483 INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This is a proceeding under Section 10(b) of the National Labor Relations Act, as amended (61 Stat. 136; 73 Stat. 519), herein called the Act. Upon charges filed by Arthur Faison, Miguel Berrios, Benito Aponte, Silverio Ramos, Manuel Lopez Ortiz, Isaac Lopez, and Herberto Rivera,' the General Counsel of the National Labor Relations Board, on behalf of the Board, by the Regional Director for the Second Region, on November 28, 1960, issued a complaint and notice of hearing against Mary Feifer, d/b/a American Feed Company, and Merchandising and Distribution Employees Union Local 210, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind. The complaint, inter alia, alleges the commission of unfair labor practices by the Re- spondent Employer, American Feed Company, of Section 8(a)(2) and (3) of the Act; and violation of Section 8(b) (1) (A) and (2) by Local 210. Answers were filed to the complaint on behalf of the. Respondent Employer and the Respondent Union, each effectively denying the allegations of violations of the Act attributed to the Respondents by the complaint. At the time of the issuance of the notice of hearing and complaint, the Regional Director issued an order consolidating the cases. Upon the issues framed by the complaint and the answers thereto, the con- solidated cases came on to be heard before the duly designated Trial Examiner at New York, New York, on December 19, 1960. The hearing was closed on Janu- ary 11, 1961. At the hearing, the General Counsel, the Respondent Union, and the Respondent Company each was represented by counsel and the interests of Local 22 of the American Federation of Grain Millers were represented by an official representative of that organization. Full opportunity was afforded each party to be heard, to examine and cross-examine witnesses, and to introduce evidence pertinent to the issues. Each party was given opportunity to make oral argument on the record, to file proposed findings of fact and conclusions, or both, and to file briefs. Counsel for the General Counsel argued orally to the record at the conclusion of the hearing; briefs filed on behalf of the General Counsel and the Respondent Union had been received and carefully considered. Upon the entire record in the case, from my observation of the witnesses, and upon full consideration, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF AMERICAN FEED COMPANY At all times material herein, the Respondent Employer, American Feed Company, has maintained its principal office, plant, and place of business at West 177 Street and the Harlem River, in the Borough of the Bronx, city and State of New York, where it is, and has been at all times material herein, continuously engaged in the processing, sale, and distribution of bakery salvage for use in animal feed and related products. During the year immediately preceding the issuance of the com- plaint herein, which period is representative of its annual operations generally, American Feed Company, in the course and conduct of its business operations, processed, sold, and distributed at its Bronx plant, products valued in excess of $50,000, of which products valued in excess of $50,000 were shipped by it in inter- state commerce directly to States of the United States other than the State of New York wherein it is located. Respondent Employer is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 1 Charges related to cases are as follows: Faison, charge and amended charge in Case No. 2-CA-7594 on October 3 and 26 and charge In Case No 2-CB-3017 on October 26, 1960 ; Berrios, charge and amended charge in Case No 2-CA-7594-2 on October 3 and 26, 1960; Aponte, charges on October 19, 1960, in Cases Nos. 2-CA-7594-3 and 2-CB-3013; Berrios, charge In Case No 2-CB-3017-2 on October 26, 1960, Ramos, charges in Cases Nos. 2-CA-7654-1 and 2-CB-3020-1 on October 31, 1960, Ortiz, charges in Cases Nos 2-CA-7654-2 and 2-CB-3020-2 on October 31, 1960; Lopez, charges in Cases Nos 2-CB-3020-3 and 2-CA-7654-3 on October 31, 1960; and Rivera, charges In Cases Nos. 2-CA-7654-4 and 2-CB-3020-4 on October 31, 1960. 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It. THE LABOR ORGANIZATION INVOLVED Merchandising and Distribution Employees Union Local 210, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Inc., is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE (ALLEGED) UNFAIR LABOR PRACTICES 2 The Issues The complaint alleges that American Feed Company, the Employer, and Local 210 of the Teamsters Union, violated the Act by entering into and executing a col- lective-bargaining agreement on or about June 3, 1960, containing a union-security provision at a time when Local 210 did not represent "an uncoerced majority" of the employer's employees in an appropriate unit, and further, by Local 210's sub- sequent request for the discharge of certain employees within that unit, and the subsequent discharge of seven of them. Dues deductions at certain times also are alleged in the complaint to have constituted and to constitute an unfair labor prac- tice by each of these Respondents. Local 210 and the Company assert that the actual collective-bargaining agreement (or contract) was entered into on May 20, 1960, at a time when Local 210 did in fact represent a majority; and that thg June 3 document was a formality, a routine, ministerial, or administrative matter, having no significance insofar as it affected the contract or its terms or its making. I will find, on the facts stated below, that the agreement made February 3, 1959, to remain in full force and effect from that date to June 8, 1960, was modified, effectively, by the memorandum of agreement dated May 20, 1960, the-provisions of which were incorporated into the agreement made June 3, 1960, to be in full force and effect to June 8, 1962. The 1959-60 Agreement, and the Circumstances Affecting the Subsequent Agreement Local 8, Industrial Products and Novelty Workers, AFL, was certified as the exclusive bargaining representative for a unit of employees of American Feed Company in the year 1953 (Case No. 2-RC-5681). The bargaining unit then con- sisted of all employees of the Employer at its Bronx plant, excluding all office em- ployees, executives, guards, watchmen, and supervisors as defined in the Act. The same unit existed during the times material hereto. On December 8, 1958, Local 8, the American Federation of Labor union, previ- ously certified as bargaining representative, was absorbed by Local 210 of the Teamsters, the Respondent Union herein. After that date, Local 210 was recog- nized by the Company and the employees within the unit as the exclusive bargaining representative of these employees. On February 3, 1959, Local 210 and the Employer entered into a collective-bargaining agreement which by its terms was to expire on June 8, 1960. There is no question (it is conceded by each party hereto) that at the time of the entering into of this 1959-60 contract, the Union did repre- sent a majority of the employees within the unit. The 1959-60 agreement contained a provision, its article 16, as follows: It shall not be a violation of this contract and it shall not be cause for dis- charge for discipline, if any employee or employees refuse to go through a picket line of a Union, or refuse to handle "unfair goods." The term "unfair goods" includes but is not limited to any goods of any employer where there is a controversy or dispute between such employer or its employees on the one hand, and any Union on the other. The Union and its members, indi- vidually and collectively, reserve the right to refuse to handle or work on goods from or to any firm which is engaged or involved in any controversy with this or any other Union. There is hereby excluded from the required job duties or work of employees any work whatsoever or job duties on "unfair goods" 2 The current agreement between the Company and Local 210, executed June 3, 1960, due to expire on June 8, 1962, was mentioned by the Board in Case No. 2-RC-10857 (129 NLRB 321, October 10, 1960) and held not a bar to an election because the "hot cargo" clause In the current agreement "is violative of Section 8(e), [therefore] we find that the contract does not bar an election" The General Counsel in the instant case asserts that he "is convinced that what happened'in this case Is that an election was ordered and there has been an attempt to get rid of the employees before the election takes place." AMERICAN FEED COMPANY 485 and any such work or job duties shall be excluded from the course of employment. The Employer will not request any of its employees to handle or perform any other services whatsoever on goods, products, or materials, coming from the premises of any Employer where there is a controversy with any Union. The Employer further agrees not to request any of its employees to cross a picket line or to perform any work which will aid, cooperate with, or assist any firm whose employees are on strike. By amendment to the Act, approved September 14, 1959, effective 60 days there- after (November 13) the above-quoted clause was made an ineffective clause where it or any other similar "hot cargo" provision appeared in any labor agreement be- tween an employer and a bargaining representative of employees. Under date of October 20, 1959, Frank Gold, director of the industrial division of Local 210, addressed the following letter to American Feed Company: 3 GENTLEMEN: The Labor Management Reporting and Disclosure Act of 1959 has added some new provisions to the law which may or may not affect Article 16 of our present agreement with you dated February 3, 1959. I am sure that neither of us wishes to have any provision in our contract which may be in conflict with this or any other law. Accordingly, we request that effective this date and continuing for the rest and remainder of the term of the aforesaid contract between us, Article 16 thereof shall be unenforceable and void with the same force and effect as if we had physically deleted said Article 16, and it had never appeared in said contract. If you so agree with us, please indicate by signing at the bottom of this letter. This letter, prepared on the advice of the attorney for Local 210, was received by the Company and endorsed and signed "agreed to- and accepted this 23 day of October, 1959, American Feed Co. (Employer) by Herbert Miskind." Under date of March 10, 1960, Director Gold, in compliance with the require- ments of Section 8(d) of the Act, addressed the following letter to American Feed ,Company: GENTLEMEN: The collective bargaining agreement presently in existence be- tween us, expires June 8, 1960. The Union is desirous of meeting with you at your earliest possible con- venience for the purpose of negotiating a new agreement. Kindly inform us when and where you will be prepared to meet for this purpose. About May 18, Angelo Martin and Manuel Severino, business agents of Local 210,4 met with a committee of employees to discuss with them the union demands -or proposals for a new contract with the Company. It was agreed to present these proposals to management, and on that day Martin and Severino with a committee of four employees including Faison, Miguel Berrios, and Pedro Matos talked to General Manager Miskind in the latter's office. They presented requests including a •60-cent an hour wage increase, additional vacations, a night-shift differential, and an increase in the minimums of the hiring rates of the plant. Miskind at that meet- ing proposed a 10-cent an hour increase and an improved vacation plan. At this meeting Martin pointed out to Miskind that since the letter of October 20, 1959, to the Company from Gold, and its approval by Miskind, article 16 of the contract had remained in effect a blank. He therefore proposed a new clause for the new contract, prepared by counsel for Local 210, which read as follows: Anything herein contained to the contrary notwithstanding, it shall not be a violation of this agreement and it shall not be cause for discharge or discipline, if any employee or employees refuse to go through a picket line of any Union. There is hereby excluded from the job duties, course of employment or work of employees covered by this agreement, any work whatsoever in connection with the handling or performing any service whatsoever on goods, products or materials coming from or going to the premises of an Employer where there in any controversy with a Union. Miskind did not object to the new proposed clause. On May 20, at approximately 2:30 in the afternoon, Martin Severino and the committee, including Pedro Matos, Arthur Faison, and Miguel Berrios, met with Similar letters were sent to other employers with whom Local 210 held contracts. Severino is the business agent who generally represented the employees in discussions with them in management. Martin was called into the meetings about to be mentioned because of his ability to speak and understand the Spanish language. 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Miskind in the latter's office and continued negotiations regarding the terms of a new contract. The same subjects were discussed as at the prior meeting. At the end of the meeting the business representatives and the committee left Miskind's office and went to the upstairs lockerroom where a meeting was conducted and where Martin reported to all employees present that management had agreed to a 20-cent a hour increase for the day-shift employees and a differential -giving the night-shift employees a 25-cent an hour increase , an increase in the minimum hiring rates, and the granting of a more liberal vacation'plan. According to Martin and• Severino, no employee expressed dissatisfaction with the report except that the employees said that "they wanted to consider it." Martin told them that it was one of the best contracts that had been negotiated in the history of the Company and that he thought it ridiculous and an act of bad faith "to continue in such a bad vein." After some discussion, Martin and Severino returned to Miskind's office where the following memorandum was signed by Severino on behalf of Local 2117 and Miskind for the American Feed Company: The following concludes our negotiations for a new agreement made on May 20, 1960. 1-The present contract dated February 3, 1959, and amended on October 20, 1959, is renewed until June 8, 1962, with the following changes. 2-The new Article 16 replaces the old Article 16, which was removed in October 1959, a copy of which is attached to this memorandum. 3-Vacation clause to be changed to include the following: one year's employment-one week's vacation two years' employment-two weeks' vacation ten years' or more employment-three weeks' vacation 4-New wage schedule as follows, effective January 9, 1960. All day shift employees get 200 an hour. This includes the bonus and general increase into the basic rates. All night shift employees get a 250 an hour increase. This includes also the bonus and general increase, plus 50 per hour for night shift workers. S-The minimum hiring rate to be $1.121/2 per hour, with the 1210 per hour ($5 per week) increase, 30 days after date of hiring. Anyone hired above the minimum to get an increase of 50 per hour ($2 per week) or $1.25 per hour, whichever is greater, 30 days after date of hiring. 6-Effective June 9, 1961, all employees receive a further increase of 71/2¢ per hour ($3 per week). 7-The Union and the employer agree that within a reasonable time, they will make up and sign a more formal contract and this memorandum of agree- ment is binding, whether or not formal contract is signed before or after June 9, 1960. 8-In all other respects the Feb. 3, 1959, contract as changed in Oct. 1959, shall continue to June 8, 1962.5 6If I understand the position of counsel for the General Counsel correctly, he refuses to admit that the letter dated October 20, 1959, sent by Gold to Miskind and later en- dorsed as approved by Miskind, actually was sent or was actually endorsed at the times or on the dates shown In the absence of any affirmative proof by the General Counsel, I see no reason to doubt the veracity of Gold or Miskind in this respect. I accept the facts as testified to by them. Counsel for the Respondent Company at the hearing said. At this time, Mr Trial Examiner, since the General Counsel asked for a copy of the contract, of February 1959, which was submitted by my client, the American Feed Company, I would like the record to show that when the copy of the contract of February 3, 1959, was delivered to General Counsel, attached to the contract was a letter dated October 20, 1959, which indicates that Article 16th of the contract, dated February 1959, was respectively deleted from that agreement, and that General Counsel during the course of his examination here has seen fit to take the letter dated October 20, 1959, from the exhibit which he had offered in evidence, the exhibit of the contract of February 1959 Counsel for the Respondent Union makes the same point in his brief Counsel for the General Counsel contends that the letter was not properly part of General Counsel's exhibit: . . . because General Counsel's exhibit was offered for the purpose of showing that this is a document which was executed in February 1959 and obviously an October thing would not be executed in February of '59 To me, it makes no difference since the proof readily establishes the execution of the 1959-60 contract and the subsequent sending and receiving of the letter AMERICAN FEED COMPANY 487 The new agreement was signed on June 3, 1960, by representatives of the Union and the Employer. The agreement as executed contained the new article 16 as. proposed by Martin and Severino to Miskind at their meeting on or about May 18. The claim of the General Counsel that Local 210 did not represent a majority of the employees in the bargaining unit on June 3, 1960, the date he claims to be the effective date of the new contract, arises from the following occurrences: Robert W. Easley, a witness called by the General Counsel, testified that he was. a labor organizer or representative for District 22 of The American Federation of Grainmillers, herein stipulated to be a labor organization within the meaning of the Act. Easley said that during the month of February 1960, he was approached by the employees of American Feed Company through a representative and that later he met with a group of employees and, they having evinced an interest in becoming members of District 22, instructed them as to the necessary procedure "to disassociate themselves from the other organization if there was a contract in existence." Upon the advice of Easley, employee Pedro Matos, with the authorization of and upon the, instructions of other employees, on May 23 about 9:30 p.m., sent the following tele- gram to the Company and to Local 210: GENTLEMEN: We the employees of American Feed Co. W. 177 St. Harlem, River Bronx N.Y. no longer wish to be represented by Local 210 IBT or to enter into any agreement beyond the expiration date of our present agreement June 8, 1960. Pedro Matos representing the employees. Prior to this time neither Miskind nor any other member of management had any knowledge that the employees were interested in joining District 22 or in their alleged desire to be represented by that organization. There is some dispute as to whether the employees advised Business Representatives Martin and Severino on May 18 and 20 that they no longer desired to be represented by Local 210. The telegram of May 23, received by the Employer and Local 210 on the following morning, was the result of a meeting of the employees in the lockerroom between shifts on the afternoon of May 23 where, according to the testimony of Matos, Herberto Rivera, Fernando Rivera, and Rafael Berrios, the employees decided they did not wish to be further represented by Local 210. Among the employees Matos remembered talking to before the sending of the telegram on May 23 were Miguel Berrios, Benito Aponte, Isaac Lopez, Rafael Berrios, Abraham Noel, and Herberto Rivera. Matos spoke to most of the employees and obtained signed authorization and application cards for District 22 cards from 10 of them, besides his own, on the dates shown: Herberto Rivera, Lopez, Adorno Ortiz on May 24; Miguel Berrios, Matos, Fernando Rivera, Aponte, Rafael Berrios, and Gonzalez on June 1; and Faison on June 5. The bargaining unit in the months of May and June 1960, included 14 employees: Car- melo Adorno, Miguel Berrios, Arthur Faison, Isaac Lopez, Manuel Lopez, Manuel Lopez Ortiz, Fernando Rivera,, Saturnino Rodena, Benito Aponte, Rafael Berrios, Abraham Noel, Silverio Ramos, Herberto Rivera, and Pedro Matos. (I count 13 employees, although a stipulation entered into by counsel says 14.) Between the time of the receipt of the telegram on May 24 and May 30 (Decora- tion Day) Miskind called a meeting of the employees in Feifer's office. Beside General Manager Miskind and Ira Feifer it appears that Gaylord Jinkens, a foreman, and Morris Moskowitz , of the management staff, were present at this meeting. Miskind testified: I told the employees that I had a contract with Local 210 that they negotiated for, and I wasn't going to horse around any longer, "that this nonsense is going to stop, what is this telegram, what do you mean, what do you want?" I said, "look, this is it, you have a contract here, and if you give me any more trouble,' I am going to take the necessary steps to conduct the business if I have to let you all go or dismiss you or fire you, or get rid of you." That's what I said. Miskind had with him at this meeting cards for the signature of each employee to^ authorize the voluntary checkoff of Local 210's dues; he asked or instructed the employees to sign them and they refused so to do. Matos, Aponte, Miguel Berrios, Herberto Rivera, Fernando Rivera, and Rafael Berrios testified as to what was said' or what occurred at this particular meeting in Feifer's office. Some of these witnesses professed not to understand or to be able to express themselves in English and their testimony was received through an interpreter; others testified both in Spanish and English and one testified in English. Although I tried to exercise diligence and care to be sure that each one of these witnesses said what he meant, the result is some- what confusing. In substance, the testimony of each was this: Matos reported that Miskind said that he was required to sign the contract, than he was going to sign it "like or no"; "the first that Mr. Miskind said was that he- 488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wanted to sign the contract. Then he said he had money to give him and that he had good benefits. That's what he said to everybody. . He said that if we don't sign or we don't give our consent we should go ahead and look for another job"; that "all the employees including me, we said that we don't want a union, we didn't want to bother with the union at all." Aponte said that Miskind "gave us some cards to be signed for the new union, Local 210 . . . he was giving use the $5 raise and he wanted us to join Local 210, but we told him we don't want it." Miguel Berrios testified that Miskind "told me he has to sign the contract. . . He told us he has to sign that contract with Local 210, he told us in the conversation about the benefits they wanted to get us." Continuing, this witness said, "Then all the workers refused. They don't want no more of the Local 210. Then he sent us back to'work." He also said that the employees expressed their position that they did not wish to be -further represented by Local 210. Herberto Rivera, a comparatively articulate wit- ness, said that Miskind explained to the employees that he had to sign that contract in a few days, otherwise he would have to look for other workers because he couldn't have the factory stopped from working; "he asked us if we had any complaints and we all said that we were all in accord that we didn't want to have anything to do with that Union." Fernando Rivera in substance, said that Miskind had declared "that if we would not sign the contract with the Union we would all be thrown out into the street"; that Miskind said he had already signed the contract, implied that Miskind had `asked the employees' approval of a new contract, but that the employees "didn't answer anything." About the full extent of the contribution of Rafael Berrios concerning this conversation was that "Mr. Miskind told us he had a signed contract with the Union and if we would not accept it, he would have to dismiss us." Thus, it is a positive fact that Miskind called the meeting of the employees to explain to them that he had entered into a contract with Local 210 and mentioned the terms and conditions of that contract, including the union-security clause. At the same time he indicated to the employees that he was required to bargain col- lectively with Local 210 as their representative; that the contract had been negotiated by the employees' own committee and approved by it and the Union. No one of the employees who testified had indicated to Miskind or any other member of management or to Local 210 or any of its representatives, before this time or then, that they were interested in joining District 22, the Grain Millers Union. • There can be no question concerning the fact that Miskind told the employees at this meeting in Feifer's office, just before May 30, that a contract with Local 210 bad been signed by him. Nor is it contradicted that the formal agreement executed June 3, 1960, contained the usual formal clauses which had appeared in the 1959-60 collective agreement between the parties, and also included the new terms and con- ditions of the contract negotiated and agreed to on May 20.6 Among the provisions ,of the 1959-60 contract and the one formally executed on June 3, 1960, was the clause providing for the checkoff of union dues and remittance of dues by the Com- pany to the union .7 Irwin Gray, attorney for the Company, informed the employees in the locker- room at the plant on June 4 or 5 that the new formal contract had been signed. Since Attorney Gray speaks and understands the Spanish language, he was able to satisfactorily explain the provisions of the new agreement .8 6 See Standard Oil Co., 119 NLRB 598, 599. There as here, ". . . the bargaining rela- tionship between the parties had been substantially stabilized and beyond the purely ministerial act of signing the clean copies of the agreements nothing further remained to be done except certification by [the national officers of the Union] and notification thereof to the employer." Here, moreover, Director Gold for the Union affirmatively asserted the right of the Union as a party, after negotiations for a new agreement had been com- pleted and ratification thereof had been accomplished as between the union and the company representatives, to enforce the agreement 7It was stipulated at the hearing that dues were checked off for all employees and re- mitted monthly by the Company to the Union from February 1959 through May 1960. `Anticipating the recital of facts herein, it may now be noted that counsel for the Re- spondent Union stated at the hearing: . . . that this fellow [Miguel Berrios] together with the other fellows discharged in September, never signed new check-off authorizations, their dues were not deducted and they were requested to be discharged [by the Union]-the employer discharged them because they were in bad standing and there is no dispute about that. This statement was accepted by counsel for the General Counsel by stipulation. 8 At the hearing the General Counsel offered and the Trial Examiner rejected an affidavit executed by Attorney Gray on October 6, 1960, at the request of the Regional Director, or his representative , referring to a conversation with Mr. Miskind prior to June 3, wherein AMERICAN FEED COMPANY 489 The Discharges On June 20, 1960, Local 22, American Federation of Grain Millers, AFL-CIO (heretofore referred to herein as District 22, as described by Representative Easley), filed a petition under Section 9(c) of the Act and subsequently, after a hearing, the Board directed an election by secret ballot to determine whether the employees desired to be represented by Local 22 or by Local 210 or by neither. The Decision and Direction of Election in that case, 129 NLRB 321, issued on October 10, 1960. As noted above, the complaint in the instant consolidated cases was issued November 28, 1960. Sometime in late June 1960, the employees notified Miskind that they would not accept their paychecks if union dues were deducted. At that time Miskind refunded the employees the amount ($3) which had been deducted from their paychecks and thereafter did not withhold union dues from the employees' pay. From about June 23, when Miskind discontinued checking off the dues, the employees refused to-pay dues to Local 210, except Matos, who continued paying after receipt of a letter from Local 210 about August 8 threatening him with discharge for refusal to pay dues. On September 14, 1960, Director Gold of Local 210 delivered the following letter to General Manager Miskind of the Company: In accordance with Article 3 of our contract, the following employees are not members of our Union in good standing and we request that you discharge them, in accordance with the terms of the contract.° Miskind replied under date of September 27, 1960: DEAR SIR: In reply to your letter of September 14, 1960. Please be advised that we will proceed to act in accordance with the terms of our contract. Changes will be made in personnel so as not to hinder production. We request that you bear with us in this matter. A notice of dismissal was given to each discharged employee at the time of his discharge, the notice being in the following form: In accordance with Article 3 of the union contract, you are not a member in good standing. ' The Industrial Division of Local No.,210 requests that you be discharged' from your position, effective immediately. We regret that this action must be taken, however, we have no choice in the matter. This notice was by Herbert Miskind for American Feed Company. Faison and Miguel Barrios received the notice on September 29, Ortiz and Lopez received the notice on October 4, Ramos received it on October 11, Aponte received it_on October 18, and Herberto Rivera received it on October 20. The following question was asked and answer given at the hearing: Q. (By Mr. LOVINGER.) Mr. Miskind, we stipulated that a -letter was sent to you by the Union and you received it and you replied. Now I ask you, because of the Union's request and because of the refusal of these employees to pay dues to Local 210, is it true that you discharged Arthur Faison, Miguel Berrios. Benito Aponte, Manuel Lopez Ortiz, Silverio Ramos, Isaac Lopez, and Herberto Riviera? Is that so? A. Yes. Under date of November 29, 1960, Director Gold for Local 210, directed the following letter to American Feed Company for the attention of Mr. Herbert Mis- kind, as follows: Attorney Gray related that he was advised of the imminent expiration of the 1959-60, collective agreement and advised his client in connection therewith ; and further relating that the new agreement was executed in his office on June 3, 1960, present at the time being Director Gold and another person representing the Union, and Herbert Miskind' and Ira Feifer for the Company. At the hearing, the lawyer-client privilege was claimed, which I recognized, although impliedly the privilege had been waived by the filing of the affidavit with the Regional Office. In my opinion either offer or rejection of the affidavit Is immaterial, since the facts set forth therein appear clearly elsewhere in the record. O The employees referred to in Gold's letter of September 14 were listed: Carmelo. Adorno, Miguel Berrios, Arthur Faison, Ishal Lopez, Manuel Lopez Ortiz, Fernando, Rivera, Saturnino Rodena, Benito Aponte, Rafael Berrios, Roberto Gonzales, Abraham Noel, Silverio Ramos. and Herberto Rivera 490 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gentlemen: We hereby withdraw any and all objections to your employing, reemploying, and continuing to employ- Carmelo Adorno Miguel Berrios Arthur Faison Ishal Lopez Manuel Lopez Ortiz Saturneno Rodena Benito Aponte Rafael Berrios Roberto Gonzales Abraham ,Noel Silverio Ramos Herberto Rivera Fernando Rivera because they were or aren't members in good standing in our Union. We will not cause or attempt to cause you to condition the hire or tenure of employment, or any term or condition of employment of any employee upon membership in, affiliation with, or dues and initiation fees payments to our Union. We will not cause or attempt to cause you to discharge, refuse to employ, or otherwise to discriminate against employees because they were or are not members in good standing in our Union. Furthermore, until the National Labor Relations Board decides the cases presently pending before it, we will not enforce the collection or check-off of dues and initiation fees and the Union shop provisions of the contract.lo On December 1, 1960, Miskind addressed the following identical letters to Arthur Faison, Miguel Berrios, Benito Aponte, Herberto Rivera, Ishal [Isaac] Lopez, Manuel Ortiz, and Silverio Ramos: We hereby offer you full and immediate reinstatement to your former position. Until the Labor Board decides the cases presently pending before it, we will not enforce the collection or checkoff of the Union dues and initiation fees and the union shop provisions of the contract and we will not require as a condition of employment that you become or remain a member in Local No. 210, I.B.T. The "hot cargo" clause of the 1959-60 contract in no instance before October 20, 1959, or at any time thereafter, was requested by the Union to be observed by the Company. I have had no particular problems of credibility to resolve herein-more accurate- ly, the apparent credibility questions are more a matter of which witness was the more articulate in respect to certain occurrences, particularly in connection with the wishes of the employees not to be represented further by Local 210. I have no ,difficulty in finding that neither Miskind, nor Feifer, nor Martin, nor Severino had any knowledge prior to May 20 that the employees were opposed to Local 210 in the sense that they no longer wanted that Union to represent them. It was not until the receipt of the May 23 telegram by the Company and by Local 210 that either of them realized or had notice that the employees did not wish to be represented by Local 210 after the expiration of the 1959-60 contract. I have no difficulty either, in finding that Miskind was well aware of the (at least latent) opposition of the em- ployees to Local 210 at the time he executed the formal agreement on June 3. How- 'ever, the first knowledge that either the Company or Local 210 had of the represen- tation claim of District 22 of the Grain Millers was notification to them of the filing ,of the representation petition on June 20. The Validity and Effect of the 1960-62 Agreement The agreement negotiated in May 1960, formalized on June 3, 1960, to run until June 8, 1962, has within it (article 25) a saving clause intended to make separable any invalid or illegal or void clause but to continue in full force and effect the re- maining parts, portions, or provisions of that agreement. The 1960-62 contract contains a different article 16 than that contained within the original 1959-60 agreement, the article 16 of which was voided by agreement be- tween the parties in October 1959, between the approval and effective dates of Section 8 of the Landrum-Griffin Act. I find, on the facts above stated, that the agreement made February 3, 1959, to remain in full force and effect from that date to June 8, 1960, was effectively modi- fied and changed by the memorandum of agreement dated May 20, 1960, the provisions of which were incorporated into the formalized agreement made June 3, 1960, to be in full force and effect from that date to June 8, 1962. 10 'Counsel stipulated that "the cases presently pending" referred to in the above letter refer to the cases contained in the consolidated complaint herein filed November 28. AMERICAN FEED COMPANY - 491 However, the 1960-62 agreement and the new article 16 thereof, contains a pro- vision which the Board has called a "hot cargo" clause; and has held that this j,rovision in article 16 of the renewed agreement is illegal and consequently that the contract as written is not a bar to an election. The clause in question reads as follows: There is hereby excluded from the job duties, course of employment or work of employees covered by this agreement any work whatsoever in connection with the handling or performing any service whatsoever on goods, products or mate- rials coming from or going to the premises of an employer where there is any controversy with a Union. I consider myself bound by the decision of the Board in 129 NLRB 321 and there- fore regard article 16 of the renewed agreement as inoperative, but find all other pro- visions of the agreement in question here, including the union-security clause, to be valid and effective. In 129 NLRB 321, the Board said that it would not recognize a saving clause of the type here involved as curing the contract-bar defect. The bar exists, says the Board, because of the inclusion within the agreement of the "hot cargo" clause. The Board bases its decision principally on Pilgrim Furniture Com- pany,-Inc., 128 NLRB 910, and The Humko Co., Inc., 121 NLRB 1414.11 Local 210 of the Teamsters and its predecessor, Local 8, Industrial, Production and Novelty Workers, has represented the employees in the bargaining unit since 1953, when Local 8 was certified by the Board. The merger of Local 8 with Local 210 is not asserted, nor can it be found, to in any way change the bargaining relationship between the representative of the employees in the unit and the employer. Accord- ing to the testimony of Representative Easley of Local 22 of the Grain Millers, he -was approached by employees as early as February 1960, concerning the possi- bility of Local 22 becoming the representative of these employees. At no time until the filing of the representation petition by Local 22 in June 1960, was the employer ever notified or provided with knowledge of the interest of the employees in Local 22. Local 22 did nothing to assert a contract bar; the employees did nothing after they had helped negotiate the terms and conditions of a new agreement in May, except, they alleged, they told General Manager Miskind a day or two before May 30 that they no longer wished to be represented by Local 210. The Board has long held that in the absence of unusual or special circumstances, a Board certification of a bargaining representative must be honored for a reasonable period. Ray Brooks v. N.L.R.B., 348 U.S. 96, 104. See also The Baker and Taylor Co. 109 NLRB 245, 248. City Cab Company, Inc., 128 NLRB 493, seems to be controlling here when it is considered that on the effective date of the Landrum-Griffin Amendments, the 1959- 60 contract did not contain a "hot cargo" clause. There the Board held, in dismissing an unfair labor practice complaint, that: Those rules provide a 60-day insulated period immediately preceding and including the expiration date of an existing contract during which the parties may negotiate and execute a new or amended agreement without the intrusion of a rival petition; And further, providing, That only a petition timely filed be- fore the insulated period, is effective to suspend operation of the insulated pe- riod. . Were we to hold, as the-General Counsel contends, that the Respond- ent's dealings with District 50 at that time violated Section 8(a)(2), we would in effect be holding as a practical matter that a claim unsupported by a timely petition could forestall operation of the insulated period-a result clearly at variance with the expressed intention of the Board's contract bar rules. We believe it is unwarranted. . We conclude that where there exists a contract which under the Board's con- tract-bar rules has an insulated period, the Midwest Piping doctrine [63 NLRB, 1060, 1070] is inapplicable to conduct occurring during that period unless there is on file at the beginning of that period a petition which raises a real question concerning representation. "Pilgrim, supra, and American Feed Company, 129 NLRB 321, were representation cases. In Pilgrim, the employees in the appropriate unit at the time of the Board's de- ,cision were covered by a contract between the employer and the Carpenters Union, entered into July 1959 to expire May 1, 1961 The petitioner, Furniture Workers Union, filed its petition on February 5, 1960 The Board said, citing DeLuxe Metal Furniture Company, 121 NLRB 995, 999, that: "Clearly, if the contract is valid for contract bar purposes, the petition was not timely and must be dismissed " In neither Pilgrim nor American Feed Company was an unfair labor practice question raised 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD See also Robertson Brothers Department Store, Inc., 97 NLRB 258, 260; compare Burke Oldsmobile Inc., 128 NLRB 79 enfd. 288 F. 2d 14 (C.A. 2).12 Here, we are not told why the employees no longer wished to be represented by Local 210, as they alleged. Could it be, that after they had negotiated provisions for a renewed contract favorable to themselves, they felt that they might possibly do better with a new union? For a period of 7 or 8 years the employees within this bargaining unit apparently were satisfied with representation as afforded by Local 210. In the absence of proof of bad faith, fraud, or doubledealing, I can find nothing wrong with the removal of article 16 of the 1959-60 contract by action initiated by the Respondent Local 210 in October 1959. When the agreement was executed in February 1959, it was proper and permissible and not illegal to enter into a collective- bargaining agreement containing such a clause. Local 1976, United Brotherhood of Carpenters, etc. (Fuller Paint & Glass Co.) v. N.L.R.B., 357 U.S. 93. The Landrum- Griffin Act afforded a grace period between its approval and effective dates for parties to collective agreements containing the so-called "hot cargo" clauses to review them and bring them into compliance with the law. Here, it appears that Local 210, with the agreement of the Company, the other party to the agreement, during the grace .period, did do what the Congress hoped or intended would be done-change the provision to conform to the new law or delete such provision. No stronger action could be taken by the parties than to adopt the language they did to nullify article 16; to make it "unenforceable and void with the same force and effect as if we had physi- cally deleted said Article 16 and it had never appeared in said contract." Thus, article 16 of the original agreement was rendered null and void by the parties notwithstand- ing the fact, if it be a fact, as urged by counsel for the General Counsel, that the employees in the bargaining unit were not individually notified of the change. If this be a proven fact (and I am not satisfied with the proof offered at the hearing), article 16 was unenforceable after November 13, 1959.13 I consider the 1959-60 contract to have been in full force and effect except for article 16 at all times until modified by the parties on May 20, 1960. I believe and find that the 1959-60 agreement was .valid and in full force and effect through May 20, 1960. That agreement by its terms was to expire June 8, 1960. Therefore, the 60-day period from April 9 to June 8 must be found to be an insulated period during which Local 210 and the Com- -pany were free to bargain concerning the terms and conditions of a new or renewal agreement. Deluxe Metal Furniture Company, 121 NLRB 995, 999-1001. Notwithstanding the infirmity of the new article 16 contained in the 1960-62 agreement, I find that agreement to be effective and in full force and effect as to all other of its provisions after the execution of the memorandum of agreement on May 20, 1960. - Union-Security and Deduction of Dues Provisions of the 1959-60 and 1960-62 Agreements and the Effect Thereof The agreement of February 3, 1959, contained the following union-security pro- visions as article 3 thereof: a. It shall be a condition of employment that all employees of the Employer covered by this agreement, who are members of the Union in good standing on the execution date of this agreement, shall remain members in good standing and those who are not members on the execution date of this agreement shall, on or after the thirtieth (30th) day following the execution date of this agreement, become and remain members in good standing in the Union. It shall also be a condition of employment that all employees covered by this agreement and hired on or after its execution date shall, on or after the thirtieth (30th) day follow- ing the beginning of such employment, become and remain members in good standing of the Union. It seems to be the General Counsel's contention that Section 8(e) of the Act makes the execution of the 1959 contract and its article 16 an unfair labor practice. This argu- ment cannot hold, because article 16 could only become an illegal clause upon the effective date of Section 8(e), that is, November 13, 1959, on which day article 16 had been abro- gated by the parties. 13 Contrary to what the General Counsel argues, the Board did not pass upon this question in 129 NLRB 321, but there considered only the new article 16 adopted by the parties on May 20, 1960. The General Counsel argues further that as far as the em- ployees were concerned, there was no change in the contract. I reject this argument, simply because it implies that "the employees' were not in any respect bound by the action of their representative, but that their individual views were paramount to collective action. _ AMERICAN FEED COMPANY 493' b. The Employer shall discharge any employee covered by this agreement within one ( 1) week after receipt of written notice from the Union that said employee is not a member'in good standing of the Union as herein required. The document signed June 3, 1960 , contained identical provisions except at the end of paragraph "b" a final sentence was added, as follows: The term "member in good standing of the Union" shall be as defined and, construed in the Labor-Management Relations Act, as amended (Taft-Hartley law). - ' The agreement made February 3, 1959, contained a checkoff or deduction of- dues provision (article 18) : Deduction shall be made on account of membership dues and initiation fees in the Union, from the first paycheck of the employees after receipt of the written authorization and monthly thereafter from the first paycheck of the employee in each month. The written assignment shall not be irrevocable for a period of more than one (1 ) year, or upon the termination date of the applicable col- lective agreement, whichever occurs sooner . The deduction shall be remitted to the Union not later than the tenth ( 10th) day of the month following the de- duction . The Employer shall furnish the Union monthly with a record of those for whom deductions have been made and the amounts thereof. An identical article 18 is contained in the document signed on June 3, 1960. Dues were checked off by the Company through and for the month of June 1960. On or about June 23 , the employees having informed Miskind that they no longer wanted dues for Local 210 to be checked off from their pay, the dues checkoff was suspended and Miskind refunded $3 dues to each employee who had paid such for dues for the month of June. The Respondent Union concedes that the employees since the execution of the new agreement ( 1960-62) have not paid their dues and contends that they were in bad standing at the time the Respondent Union , through Director Gold, demanded their discharge by his letter of September 14, 1960. I find that the discharges of those employees named in the complaint on the dates of their respective discharges as shown were legal and in accordance with the pro- visions of the existing contract or agreement between the parties. On the day fol- lowing the issuance of the complaint herein , Local 210, by Director Gold, notified the Company of its withdrawal of any and all objections to the employing , reemploy- ing or continuing to employ certain named employees because they were or are not members in good standing in the Union . On December 1, 1960, the Company by General Manager Miskind, in writing, offered reinstatement to the seven employees named in the complaint as being discharged. CONCLUDING FINDINGS OF FACT 1. At all times material herein, Local 210 was and is the collective-bargaining representative of the employees of American Feed Company. 2. On May 20, 1960, American Feed Company and Local 210 entered into a valid written collective-bargaining agreement. 3. That at the time of the entering into of the May 20, 1960, contract, neither American Feed Company nor Local 210 had received any notice or notification what- soever that the employees no longer desired Local 210 to represent them. Whether or not the 1959 contract could enjoy the privilege of a 60-day insulated period be- - cause at the time of its execution in February 1959 it contained old article 16, never- theless the execution of the new contract on May 20, 1960, was legal and permissible. On May 20, 1960, Local 210 was still the bargaining representative. No other labor organization had as yet appeared on the scene and that Union's claim to recognition was not made until June 20. The employees did not attempt to advise their employer that Local 210 was no longer their representative until May 24-the day of the receipt of the telegram. 4. The February 1959 contract was legal, valid, and binding when made. 5. In October 1959, American Feed Company and Local 210 legally removed and declared unenforceable and void article 16 of the said agreement. 6. That after October 1959, there was no article 16 in the February 1959 contract. 7. That the 60-day period immediately preceding June 8, 1960, was the insulated period. 8. That prior to said insulated period, neither the employees nor a rival labor or- ganization advised either American Feed Company or Local 210 that they did not want Local 210 to continue to represent them or that a rival union made a claim to represent the employees. 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 9. The employees involved in the complaint were in bad standing for noncom- pliance with the lawful union-security provision of the contract. 10. The so-called hot cargo clause in the May 20 , 1960, memorandum of agree- ment does not affect the validity of the balance of the contract . Section 8 (e) merely directs that the contract "shall be to such extent unenforceable and void." The bal- ance of the contract, including the union-security clause, is not affected. See N.L.R.B. v. Rockaway News Supply Company, Inc., 345 U.S. 71, where the Supreme Court held that the Board , in an unfair labor practice case, had no sanction in law to disregard a separability clause in a contract. In Rockaway News, the Supreme Court ruled that the fact that a contract con- tained an invalid union -security clause, did not authorize the Board to disregard the contract entirely in determining the propriety of a discharge of an employee there- under, when the agreement contained a separability clause. The employee was dis- charged for breaching the clause in the contract that employees shall not refuse to cross a picket line of another union . The Supreme Court stated (345 U.S. at 79): The total obliteration of this contract is not in obedience to any command of the statute. It is contrary to commonlaw contract doctrine . It rests upon no de- cision of this or any other controlling judicial authority . We see no sound public policy served by it. Realistically, if the formal contract be stricken, the enterprise must go on-labor continues to do its work and is worthy of some hire. The relationship must be governed by some contractual terms. There is no reason apparent why terms should be implied by some outside authority to to take the place of legal terms collectively bargained . The employment con- tract should not be taken out of the hands of the parties themselves merely be- cause they have misunderstood the legal limits of their bargain , where the excess may be served and separately condemned as it can here. In the instant case not only does the contract contain a separability clause (article 25) but Section 8 (e) of the Act provides for a separability clause of its own. The hot cargo clause does not affect the validity of the union -security clause. CONCLUSIONS OF LAW 1. The Respondent Employer, American Feed Company, is and has been at all times material herein an employer engaged in comme :ce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Respondent Union, Merchandising and Distribution Employees Union Local 210, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, Ind., is and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. 3. The employees named in the complaint and alleged to be or to have been illegally discharged were properly and legally discharged pursuant to the lawful union-security provision contained in both the 1959-60 and 1960-62 agreements. 4. The Respondent Employer has not engaged in and is not engaging in unfair labor practices in violation of Section 8(a) (1), (2 ), and (3 ) of the Act, as alleged in the complaint. 5. The Respondent Union has not engaged in and is not engaging in unfair labor practices within the meaning of Section 8(b) (1) (A) and Section 8(b) (2) of the Act, as alleged in the complaint. 6. The consolidated complaint herein should be dismissed in its entirety. [Recommendations omitted from publication.) H. E. Fletcher Co. and United Stone and Allied Product Work- ers of America, AFL-CIO. Case No. 1-CA-3438. November W, 1961 DECISION AND ORDER On August 15, 1961, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor 134 NLRB No. 48.