Banner Yarn Dyeing Corp.

1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD driven trucks, and worked on machinery. Over a 3-month period, these workers have assisted in such fashion on only six occasions. During that same period, no warehouse employee did any work in the growing areas. Each phase of the Employer's operations is un- der separate supervision. Applying the criteria indicated in the Interpretive Bulletins of the Administrator of the Fair Labor Standards Act, especially those spelled out in Sections 780.154 and 780.157, above-quoted, we are satis- fied that the Employer's canning and warehouse operations are prac- tices which are not performed as an incident to or in conjunction with the Employer's farming operations? The processing of a farm product which requires such a sizable investment in machinery and involves heating and canning the product for purposes of preserva- tion and more flexible marketability is not, in our opinion, incidental to farming but is a separate industrial enterprise which only happens to be performed on a farm. We do not believe that Congress intended to exclude employees engaged in such operations from the protection of the Act. We therefore affirm the Regional Director's determina- tion that individuals engaged in various aspects of the canning and warehousing operations of the Employer are not "agricultural labor- ers" but are employees within the meaning of the Act.3 Accordingly, the case is hereby remanded to the Regional Director for the Fourth Region for the purpose of holding an election pursuant to his Decision and Direction of Election, except that the payroll pe- riod for determining eligibility shall be that immediately preceding the date below.' 2 See Maneja v Waialua Agricultural Co , 349 U . S. 254. 'As there are hand cutters who work side by side with machine cutters, and do both types of work interchangeably , we shall, as requested by the Petitioner In Its brief, amend the Regional Director 's unit description by inserting the words "or by hand " after the word "machine." 4 As it appears from the record that the Employer 's mushroom canning season is cur- rently in progress , it is unnecessary to pass upon Petitioner 's request that the election be postponed until after the start of the next season Banner Yarn Dyeing Corporation and William Neville and Local 30, 30A, 30B, 30C, International Union of Operating Engineers, AFL-CIO, Party in Interest. Case No. 2-CA-7791-1. Novem- ber 16, 1962 SUPPLEMENTAL DECISION AND ORDER On June 6, 1962, Trial Examiner Sidney Sherman issued his Inter- mediate Report in the above-entitled proceeding, finding that Re- spondent had not engaged in the alleged unfair labor practices and recommending that the amended complaint herein be dismissed in 139 NLRB No. 95. BANNER YARN DYEING CORPORATION 1019 its entirety, as set forth in the attached Intermediate Report. There- after, the General Counsel and Party in Interest filed exceptions to the Intermediate Report. The General Counsel also filed a supporting brief. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- termediate Report, the exceptions and brief, and the entire record In this case and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner.' [The Board dismissed the complaint.] 1 Contrary to the Trial Examiner's observation, the Board's decisions in Nassau and Suffolk Contractors' Association, 118 NLRB 174, and Anchorage Businessmen's A88ocia- tion, 124 NLRB 662, are not inconsistent. For a proper correlation of these decisions, see National Gypsum Company, 139 NLRB 916. INTERMEDIATE REPORT This case was heard at New York City on various dates between March 5 and 16, 1962, upon an amended complaint filed by the General Counsel and answers filed by the other parties. The issue litigated was whether the Respondent violated Section 8(a)(2) and (1) of the Act by permitting Ferguson, an alleged supervisor, to par- ticipate in union affairs.' The General Counsel and the Party in Interest filed briefs after the hearing. Upon the entire record 2 and my observation of the witnesses, I adopt the follow- ing findings and conclusions: I. THE BUSINESS OF THE RESPONDENT Respondent, a New York corporation with a principal office and place of business in New York City, is engaged in the manufacture, sale, and distribution of yam and related products. It annually manufactures and sells $500,000 worth of products, of which products valued in excess of $50,000 are annually sold and shipped by it from New York City to out-of-State points. I find that Respondent is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Local 30, 30A, 30B, and 30C,3 International Union of Operating Engineers, AFL-CIO, hereinafter called the Union , is a labor organization within the meaning of Section 2 (5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The evidence The amended complaint alleges that the Respondent violated Section 8(a)(2) and (1) of the Act in that since August 1, 1960, Respondent has "actively participated 1 The charge in this case was served upon Respondent on April 3, 1961. Thereafter this case was consolidated with a number of other cases Involving other employers as respond- ents and a consolidated complaint was issued. On June 6 , 1961 , Trial Examiner Whitte- more held a hearing on the consolidated complaint and denied a motion to sever the consolidated cases, but granted a motion to dismiss as to all the cases on the ground that the consolidated complaint did not state a cause of action. Upon review, the Board on January 15, 1962, reversed both the foregoing rulings, granting the motion to sever, and remanding the cases for separate hearings on the merits . Banner Yarn Dyeing Corpora- tion, 135 NLRB 298. 2 The transcript of testimony taken herein Is hereby corrected in the following respects: On page 101 , line 2, change "three" to "twenty-three"; on page 394 , strike lines 9 to 11 3 The various numerical designations refer to branches of the same local union 1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the administration and affairs of the Union by permitting" Ferguson, a supervisor in Respondent's employ, and other supervisors 4 "to attend and participate in meetings of the Union, to vote in elections conducted by the Union among its members, and to hold office in the Union, and to serve as members of its Executive Board." The amended complaint concedes, and I find, that Ferguson and the other alleged super- visors were within the bargaining unit. The Respondent contends, inter alia, that Ferguson is not a supervisor, and that, in any event, his participation in union affairs is not such as to warrant a finding that the Respondent has violated the Act. Supervisory Status Respondent has about 150 employees. The bulk of its production employees work in two departments-drying and dyeing. Ferguson works in the engineering and maintenance department, which is responsible for the operation of the boilers supplying heat and power to the plant and for the maintenance and repair of equip- ment throughout the plant. There are employed in this department, in addition to Ferguson, three licensed stationary engineers and five mechanics.5 The engineers work primarily in the boilerroom, while the mechanics work throughout the plant, wherever repairs are needed. These employees are divided into three shifts, with one engineer and one mechanic on each shift, except for the day shift to which two mechanics and two engineers, including Ferguson, are assigned. Ferguson is classified as chief engineer, and has been so classified for about 13 years. He is a licensed stationary engineer, is paid a weekly salary of $224.50 (for a 40-hour week), and receives an annual bonus in the form of Government bonds worth $750 at maturity. The other engineers are paid an hourly rate of $4.41, equal to $154.50 for 35 hours or $165 50 for 40 hours.6 The maintenance mechanics are paid $3.90 an hour, equal to $136.50 for 35 hours or $156 for 40 hours. There is thus a differential of about $60 a week between Ferguson and the next highest paid employee. There is, moreover, no evidence that any of these individuals other than Ferguson receives a bonus. At the opening of the hearing, Respondent's counsel entered into a stipulation with the General Counsel that if Respondent's vice president, Jack Weinberg, were present, he would testify, in accordance with his pretrial affidavit, that (1) Ferguson interviews and rejects applicants for jobs; (2) he directs the work of, and makes work assignments, to the three other engineers and the five mechanics; (3) he does no manual work but spends all his time in "supervision"; (4) he has the power to order an employee to "punch out" but has not done so in the past few years; (5) he has discharged several employees for incompetence, but not within the past 6 years; (6) he makes overtime assignments, and (7) he has the power to entertain and act on employee complaints regarding safety and other conditions of employment. The Union objected to the foregoing stipulation on the ground that it desired to cross-examine Jack Weinberg regarding the foregoing matters. To meet this objec- tion the General Counsel subpenaed Jack Weinberg, and the Union was afforded an opportunity to, and did, cross- examine him. Under cross-examination, Jack Weinberg contradicted his counsel's stipulation in the following respects : (1) He asserted that all job applicants were interviewed, and selections among them were made, by top management, and he minimized Ferguson's role in the hiring process, although admitting that he consulted with Ferguson about the quali- fications of any mechanic referred by the Union 'i and that he "more or less" based his decision regarding the applicant on Ferguson's evaluation of the man. (2) He testified that the engineers did not require any direction by Ferguson, and that, as to the mechanics, all Ferguson did was to relay to them requests from the witness that they repair a particular piece of equipment. Apart from this, Ferguson, according to the witness, had no more power or responsibility than any of the other engineers or mechanics. 4 No evidence was offered as to any alleged supervisors other than Ferguson Although the General Counsel was prepared to offer such evidence, he desisted when I pointed out that such evidence would be merely cumulative and would not affect any remedy that might be granted. 5 One of these mechanics is a relief man who substitutes for the other mechanics while they are on vacation. 6 Under the union contract, all hours over 35 are paid at time and one-half 1 Respondent hires all its engineers and mechanics through the Union BANNER YARN DYEING CORPORATION 1021 (3) The witness denied that Ferguson had any power to discharge employees, insisting that only the witness had that power. However, he did not deny that about 6 or 8 years ago he had discharged two employees who had been sent to him by Ferguson, one for drunkenness and the other for assaulting a fellow employee. As to the statement in his pretrial affidavit (incorporated in his counsel's stipulation) that Ferguson had the power to order employees to "punch out," the witness was unable to explain what he meant thereby, professing not to recall having been asked about this by the Board agent who interviewed him. (4) The witness in effect repudiated the statements in his pretrial affidavit (incor- porated in his counsel's stipulation) that Ferguson had the power to adjust employee complaints about working conditions and that he made overtime assignments. (5) The witness attributed Ferguson's higher rate of pay to his superior ex- perience and judgment. (6) The witness repudiated his pretrial statement (incorporated in his counsel's stipulation) that Ferguson did no manual work, asserting that Ferguson did do physical work, although only of the lighter variety. It is evident from the foregoing that apart from his concession as to his reliance on Ferguson's evaluation of job applicants, Jack Weinberg's oral testimony sub- stantially repudiated all the admissions in his "stipulated" testimony tending to establish that Ferguson was a supervisor. The question arises which testimony is to be credited. The stipulated testimony consisted of extracts from an affidavit given by Weinberg to a Board agent on February 24, 1961, several weeks after the filing of the charge herein. The testimony, insofar as it tended to establish Fergu- son's supervisory status, was contrary to Respondent's interest. The oral testi- mony by Weinberg, on the other hand, was obviously self-serving. Moreover, Weinberg's uneasy demeanor on the witness stand and the evasive, non-responsive, and inherently incredible 8 content of much of his oral testimony reflected seriously on the credibility of such testimony. Accordingly, I do not credit Weinberg's oral testimony, where it conflicts with his stipulated testimony, and find as follows: (1) That Ferguson had the power to order employees to "punch out," which phrase, in the jargon of labor relations, ordinarily connotes the power to impose a disciplinary discharge or layoff, and that this power has been exercised in a few instances, although not in recent years. (2) That Ferguson was authorized to interview job applicants and, at least in the case of mechanics, to make recommendations to management, which were given substantial weight .9 (3) That Ferguson has the power to adjust on behalf of management employee grievances relating to safety and other working conditions. As any one of the foregoing powers is sufficient to establish that Ferguson is a supervisor, I do not deem it necessary to evaluate Weinberg's testimony bearing on the further question whether Ferguson had the power to direct, or assign work to, other employees and, if so, whether, in so doing, he was required to use inde- pendent judgment. Ferguson testified regarding his supervisory status as follows: (1) While repudiating, after some equivocation, the statement in his pretrial affidavit that he interviewed job applicants and recommended whether they should be hired, Ferguson admitted that he checked the qualifications of applicants for jobs as mechanics before referring them to higher management. (2) Ferguson denied that he had any authority to discharge, but admitted that about 8 years ago he had recommended discharge of an employee for drunkenness, and that about 10 years ago he had reported 10 to management that one employee had assaulted another. In each instance the offending employee was discharged. (3) Ferguson admitted that he calls in replacements for absent employees. (4) Ferguson had some difficulty in explaining why he was paid more than the other engineers.li At one point he attributed this to the fact that, unlike the other s Thus, Weinberg claimed that some of the statements in his pretrial affidavit were based on his answers to questions put to him by the Board agent which Weinberg did not even understand. O This finding as to Ferguson 's recommendations would be warranted even if no re- liance were placed in Weinberg's stipulated testimony, as even his oral testimony indicates that such recommendations were effective. 1° Ferguson denied that he recommended discharge in this case, although his pretrial affidavit so states. As to the "drunkenness" incident, his testimony conforms to his affidavit. 11 At the hearing it was assumed that the differential was only $20 a week However, the differential is, in fact, as noted above, $60 a week not counting Ferguson's bonus 1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD engineers, he did maintenance work. However, this seems an unlikely explanation, in view of the fact that the maintenance mechanics were paid even less than the engineers. Finally, in response to a leading question by counsel, Ferguson attributed his higher pay to his greater experience. It strains credulity that an employer could pay one licensed stationary engineer $60 a week more than another because of a difference in experience or ability as an engineer, particularly where, as here, it is admitted that the duties of stationary engineers are so routine and predetermined as to require no direction of the engineers by others. It is even more difficult to believe that the Respondent would pay Ferguson almost $80 a week more than its mechanics solely because of his special ability as a mechanic. (5) Ferguson repudiated the statement in his pretrial affidavit to the effect that only 5 to 10 percent of his time is spent in manual labor , the balance in "supervision." However, the pretrial statement coincides substantially with the stipulated testimony of Jack Weinberg, which I have credited. (6) Although Ferguson's pretrial affidavit, like Weinberg's, admits that he ad- justs employee "complaints on safety and other" working conditions, the burden of Ferguson's testimony was that he did not handle any employee grievances, either on behalf of management or on behalf of the Union. (7) Ferguson in effect repudiated various statements in his affidavit relating to the extent of his direction of the work of other employees. To sum up, Ferguson's pretrial statement like Weinberg's, tended to establish that he was a supervisor, whereas his testimony was in the main to the contrary effect. Ferguson had an obvious personal interest in avoiding a finding that he was a supervisor.12 His testimony is marked by evasion , lapses of memory, and equivoca- tion. His explanation of his reasons for signing the repudiated pretrial affidavit were not convincing , nor was I favorably impressed by his demeanor on the stand. Accordingly, I do not credit his testimony insofar as inconsistent with his pretrial of ldavit .13 I do, however, credit his testimony that he interviews applicants for jobs as mechanics to determine their qualifications and that he calls in replacements for absent employees.14 There accordingly remains nothing in the record to rebut the credited testimony of Jack Weinberg which, as I have found, suffices to establish that Ferguson was a supervisor and on the basis of such testimony and the entire record I find that he was a supervisor.15 Ferguson's Participation in Union Affairs The Union has represented Respondent 's engineers (including Ferguson) and mechanics for a number of years and has executed a series of contracts with the Respondent, the most recent being a 2-year contract signed on August 31 , 1960. In all, the Union has about 600 contracts with various firms in New York City covering their engineers and mechanics , and has 3,400 members. Ferguson has been presi- dent of the Union for about 4 years and a member of its executive board for about 23 years.15 He has voted in all elections for union officers and presides at all general membership meetings. He has never actually participated in contract negotiations ,17 it being undisputed that such negotiations are conducted by the Union's business agents 18 or organizers, 12 Such a finding and the resulting remedial order would in effect require the Respondent to give Ferguson the alternative of resigning his union office or forfeiting his job as chief engineer 13 However, I do not give that affidavit any substantive weight, but have considered it only as bearing on Ferguson 's credibility. 14 As the two discharge incidents related above occurred more than 6 months before the service of the instant charge it is arguable that I am precluded by Section 10(b) of the Act from attaching any significance thereto . I do not deem it necessary to resolve this point, as I find sufficient evidence of Ferguson 's supervisory status, without relying on these incidents 18 Worley , a mechanic employed on a different shift from Ferguson 's, testified mainly concerning the extent of direction of his activities by Ferguson and others, and the extent of Ferguson ' s participation in the arrangement of vacation schedules As I do not rely on these matters in finding Ferguson a supervisor, it is not necessary to evaluate this testimony 1e The transcript erroneously reads "3 years " See footnote 2, Supra. 17 As for grievance meetings with higher management, the record shows only that he attended one such meeting about 8 years ago, but only as an observer on behalf of the Union, and that at such grievance meetings the Union is represented by the business agent or the business manager. is Also referred to in the record as "delegates" and "business representatives." BANNER YARN DYEING CORPORATION 1023 sometimes with the aid of the business manager, who supervises the work of such agents and organizers. However, as president of the Union, Ferguson's signature appears on all union contracts, including the current contract with the Respondent. Moreover, he is a member of the executive board,19 which under a provision of the Union's International constitution (article XXIII, subdivision ii, section (e)) has the authority to (although it does not in fact) negotiate contracts, subject to ap- proval of the interested members That provision reads in part: Proposed collective-bargaining agreements and modifications thereof may be negotiated for Local Unions by the Business Manager, by a committee, by the Local Executive Board or by .the Business Representative. However, such agree- ments and modifications thereof shall not be executed until they have been presented and read at the next membership meeting following the negotiation of the proposed agreement and have been approved by the membership affected. When such approval has been obtained, the agreement shall be signed by the Local Union's President. . . . [Emphasis supplied.] Article IV, section 2 of the Union's constitution defines the executive board's powers as follows: The Executive Board shall be the policy making and administrative tribunal of this Local Union. It shall have such powers as may from time to time be delegated to it by the actions of this Local Union, or conferred by the Constitution. All acts of the Executive Board shall be reviewable by this Lo- cal Union but shall be maintained in full force and effect, subject only to revoca- tion by Faction of the membership, if taken at the next subsequent membership [sic] following the adoption of the,actin que'tion. So far as the record shows, the only functions actually performed by the executive board consist in (1) authorizing expenditures of union funds for various purposes, including payment of expenses of business agents, subject to ratification by the membership, and (2) during the summer months, when there are no membership meetings, transacting such business as would normally be handled at such meetings, subject to ratification by the Union's members. The Union's International constitution (article XXIII, subdivision 2 section (a)) defines the powers of a president of a Local Union as follows: It shall be the duty of the president to preside at all meetings, enforce the Constitution, Laws, Rules, Ritual and Custom of the organization; to decide all questions of order subject to an appeal to the Local Union; to cast the decid- ing vote in case of -a tie; to sign all orders of the Treasurer for the disposition of funds sent to the General Office; to appoint all committees unless otherwise provided for . . . and to perform such other duties as appertain to his office or which may from time to time be delegated to him by action of the Local Union or other authorities in the organization. Also, as noted above, the International constitution requires the president of a lo- cal union to sign contracts with employers after they have been approved by the interested members of the local. The president and certain other officers are authorized moreover to fill a vacancy in any office by appointment for the unexpired term thereof. (Union's constitution, article II, section 9.) As already related, contract negotiations are conducted by the Union's business agents and organizers, sometimes with the aid of the business manager20 Organizers and business agents have heretofore been elected by the members, but, under a change in the Union's bylaws, to take effect in June 1962, they will be appointed by the business manager. The procedure followed in contract negotiations is as follows: First, a meeting is called of all members of the Union in a particular industry.21 The business agent assigned to that industry and the business manager conduct the meeting. The members formulate their contract demands. The business agent may attempt to dissuade the members from taking too extreme a position. After the de- mands have been agreed upon, the business agent (with or without the business 19 This Board consists of 6 officers , and of 15 individuals chosen by the membership of the Union. =The signature of the Union's business manager appears in its current contract with the Respondent. As for grievance negotiations , see footnote 17, supra. 21 The Union represents employees in a large variety of industries . The Respondent is classified as in the dyeing industry, which industry comprises 8 plants with 35 employees within the Union's jurisdiction 1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD manager) presents the demands to the employers in that industry. Any agreement reached in negotiations is submitted to the Union's members in that industry for their approval. If approved, the contract is duly executed by representatives of management and the Union, including the president of the Union. The execution of the contract is reported at the next general membership meeting, but only for informa- tional purposes. This was the procedure followed in negotiating the current contract with the Respondent. The business agent handling the negotiations was Treacy, who received some assistance from Donovan, the then business manager. B. Discussion The Nassau and Suffolk Rule In the Nassau and Suffolk case 22 the Board laid down two separate rules governing the participation by supervisors in union affairs. One applies to supervisors who are not within the bargaining unit represented by the union. As to such supervisors, the Board stated that such participation in union affairs as holding union office or voting in union elections constituted unlawful interference by their employer with the administration of the union.23 However, with respect to the supervisors (master mechanics) in the Nassau case who were within the bargaining unit, the Board granted them more latitude The Board intimated that they might vote in union elections and otherwise participate in union affairs without implicating their employer in an unfair labor practice, unless it was shown that the employer instigated or ratified their conduct or led the employees reasonably to believe that the supervisor was acting for and on behalf of manage- ment.24 The only other restriction imposed on such supervisors was that they might not participate in negotiations with their own employer.25 However, this distinction between supervisors within, and those without, the unit was apparently not followed in the Board's decision in Anchorage Businessmen's Association, 124 NLRB 662, enfd. 289 F 2d 619 (C.A. 9). There, although the supervisors were members of the bargaining unit, the Board stated that they might not vote in union elections or hold union office without rendering their employers guilty of unlawful interference with the administration of the Union. However, the only authority cited by the Board for this pronouncement is that part of the Nassau case which proscribes voting in the union elections by supervisors excluded from the bargaining unit. No reference is made to the more apposite contrary holding in Nassau with respect to supervisors within the unit, nor is any rationale given for the apparent departure from Nassau in the foregoing respect. Moreover, in the later case of Detroit Association of Plumbing Contractors, supra, where the Board held that supervisors not in the unit might not lawfully hold union office or vote in union elections (or represent the Union in contract negotiations ), the Board cited its finding in the Nassau case "that participation by supervisors , not in the bargaining unit, in the internal affairs of a union of rank-and-file employees constitutes unlawful interference with the administra- tion of the union" (p. 1383). [Emphasis supplied.] If in Anchorage the Board meant to obliterate the distinction drawn in Nassau between supervisors within, and those without, the unit, it is not clear why, in the Detroit Association case, the Board in- cluded the italicized phrase in the foregoing quoted language. Finally, in the second Geilich Tanning case,26 the Board, pursuant to a court remand, considered whether the Act was violated by the participation in union affairs of za Nassau and Suffolk Contractors' Association, 118 NLRB 174 21 Accord : Detroit Association of Plumbing Contractors, 126 NLRB 1381, enfd in part, 287 F . 2d 354 (CAD C.) ; Bottfield-Refractories Co, 127 NLRB 188, enfd . sub nom Employing Bricklayers' Association etc., 292 F. 2d 627 (C.A. 3) ; Employing Bricklayers' Association, 134 NLRB 1535 24 Nassau and Suffolk Contractors Association, supra, at p. 183, and see particularly paragraph 1(c) of the Board's remedial order in the Nassau case, which requires the Respondent employers to cease and desist from interfering with the administration of, or contributing support to , the union involved "by permitting executives and supervisors, other than master mechanics , to vote at union elections or otherwise participate in the internal administration" of the union . [ Emphasis supplied l It is clear from the fore- going that the Board in Nassau meant to sanction participation in union affairs by supervisors who, like the master mechanics in that case, were members of the bargaining unit. See Geilich Tanning Company, 122 NLRB 1119, 1131 za Nassau and Suffolk case, supra, at p. 187. This restriction applies a fortiori to super- visors excluded from the unit. Detroit Association of Plumbing Contractors, supra 28 Geilich Tanning Company, 128 NLRB 501. BANNER YARN DYEING CORPORATION 1025 supervisors excluded from the unit. Citing the Nassau and Suffolk case, the Board stated: In accord with prior decisions, we find that the participation in union activities by supervisors who are union members but who are not in the bargain- ing unit, is a violation of the Act. [Emphasis supplied.] [P. 502.] Upon consideration of all these factors, I am inclined to the view that any apparent deviation from Nassau in the Anchorage case was inadvertent, and that the Board in the Detroit Association case and second Geilich Tanning case regarded the dis- tinction drawn in Nassau between supervisors within, and those without, the unit as still valid.27 As I deem Nassau controlling here, I will attempt to evaluate the various facets of Ferguson's participation in union affairs in the light of the rule of that case. The amended complaint alleges that the Union has represented, and still repre- sents, a bargaining unit at Respondent's plant which includes, among others, the ` chief engineer"-namely, Ferguson. Moreover, it is undisputed that Respondent's current contract fixes the compensation of the chief engineer and that the Union represented Ferguson in processing a grievance. Notwithstanding the foregoing concession in the amended complaint and the evidence in the record, the General Counsel for the first time in his brief raises the question whether Ferguson is in fact covered by the Respondent's contract, in view of the fact that "supervisory employees" are in terms excluded from the coverage of that contract. However, apart from the tardiness of this contention, I find no merit therein for the reason that it overlooks the fact that the definition of the unit in the instant contract, while excluding "supervisory" employees, expressly includes the "chief engineer." More- over, even if I deemed the contract ambiguous, as the General Counsel suggests, I would be required to resolve the ambiguity in accord with the practice of the parties, which, as shown above, was to treat Ferguson as within the unit. Accordingly, I find that Ferguson was at all times here material a member of the bargaining unit, and that the rule of law applicable to his case is that prescribed in the Nassau case for supervisors within the bargaining unit . I turn next to the application of that rule to the various intraunion activities in which Ferguson engaged. 1. Voting in union elections: It has been found that Ferguson voted in all union elections. Under Nassau, since Ferguson was within the bargaining unit, such voting was proper unless instigated or ratified by Respondent or unless it led employees to believe that Ferguson, in so voting, was acting in the interest of management. Nothing in the record suggests that this was true here to any greater extent than in the Nassau case. Accordingly, I find no violation on the basis of Ferguson's voting in elections 28 27A possible rationale for the disparity between the Board 's position in Nassau and Anchorage may be in the difference between the industries involved . Nassau involved the construction industry , where membership by supervisors in rank-and -file unions is traditional , and the Board's opinion in Nassau stresses this fact Anchorage, however, involved retail drugstores , and there was no evidence of general practice in that industry in regard to supervisors' participation in union affairs There is similarly no such evi- dence here with regard to the yarn manufacturing or textile industry However, as Anchorage does not purport to distinguish Nassau on that ground but instead purports (albeit mistakenly) to follow Nassau, it would be sheer speculation to assume that the Board in fact meant to distinguish Nassau on the foregoing ground. 28 However, I find no merit in the Union's contention that Section 101(a )( 1) of Title I of the 1959 Act guarantees the right of supervisors to vote in union elections and hold union office. That section reads: Every member of a labor organization shall have equal rights and privileges within such organization to nominate candidates , to vote in elections . . to attend member- ship meetings , and to participate in the deliberations and voting upon the business of such meetings . . . . I do not construe the foregoing language as affecting, in any event, the right of super- visors to hold union office, but only as pertaining to their right to vote in union elections and to participate in actions taken at union meetings . Moreover, even as to these latter rights, it is clear from the language of Section 603(b) of the 1959 Act that Congress did not intend to accord such rights to supervisors in derogation of the provisions of the Act administered by the Board . Section 603(b ) reads: Nothing contained in title[s ] I . . . of this Act shall be construed . . . to confer any rights , privileges, immunities, or defenses upon employers , or to impair or 1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Holding union office: As already related, Ferguson was president of the Union and a member of its executive board. In the Nassau case it appeared that the master mechanics involved served on various union committees.29 The Board rejected the contention that this fact proved domination of the union by the re- spondent employers. While it is not clear that the Board specifically considered whether the respondents had thereby unlawfully interfered with the union's ad- ministration, the Board did state (at p. 183) that no finding of unlawful interference with the union's administration could be based on the "intraunion conduct" of the master mechanics, absent employer instigation etc., and the exemption noted above in favor of the master mechanics, in the Board's remedial order in Nassau, appears to be broad enough to permit their holding union office. Moreover, there is nothing in the Board's opinion or the remedial order to indicate that such permission is limited to relatively minor posts in the union, and does not extend to top executive and policy-making positions, such as Ferguson held. Accordingly, I find no viola- tion on the basis of Ferguson's serving as union president or as a member of its executive board, insofar as his functions did not involve or relate to negotiations with the Respondent. The propriety and extent of his involvement in such nego- tiations, by reason of his union office or otherwise, is a separate question, which will next be considered. 3. Participation in negotiations: In the Nassau case the Board found that some of the master mechanics had represented their union in contract negotiations with their own employers. As the master mechanics were supervisors, the Board held that, notwithstanding their inclusion in the unit, they were not privileged to deal on behalf of the union with their own employers, and that such dealing constituted unlawful interference by the employers with the administration of the union. How- ever, in the absence of any evidence that the employers were responsible for the union's selection of the master mechanics as its bargaining representatives, the Board predicated employer liability for the master mechanics' participation in bar- gaining solely on the ground that the employers "were under a duty . . . when confronted with a union negotiating committee which included their own agents, to protest the composition of the committee and to refuse to deal with it because it was tainted with an apparent employer interest." The Board concluded that by "failing to register such protest and by actually dealing with the committee as con- stituted, Respondents . . . acquiesced in such appointments, and to that extent, we find, interfered with the administration of the Union in violation of Section 8(a) (2) and (1) of the Act." 30 It thus appears that the foregoing rule envisages a situation where the employer actually confronts his supervisor across the bargaining table and fails to register any objection to dealing with him as the union's representative. The only matter involved here which is at all comparable to this situation is the fact that Ferguson's signature as union president appeared on the Respondent's current contract, a fact of which Respondent was admittedly aware. This, at first blush, would seem to constitute such open participation by Ferguson in negotiations as was condemned in the Nassau case. However, as already stated, the Union's International constitution directs that the presidents of the local unions shall sign all contracts negotiated with employers by such unions. I take this to mean that a local president has no discretion to refuse to sign a contract, and that his signature is required only for formal reasons. This view is confirmed by the fact that, at Treacy's request, Ferguson's facsimile signature was affixed to the current contract with the Respondent, not by Ferguson, himself, but by his secretary in his absence 31 Accordingly, I do not consider the fact that Ferguson (whether personally or other- otherwise affect the rights of any person under the National Labor Relations Act, as amended. See, moreover, Local 636 of the United Association of Journeymen and Apprentices etc v. N L.R B , 287 F 2d 354, 360 (C A.D C ) ire Nassau and Suffolk Contractors' Association, supra, at footnote 36. "Accord: Anchorage Businessmen's Association, supra 31 Treacy (the business agent who negotiated the contract in question) credibly so testi- fied. Ferguson's recollection was that he affixed the facsimile signature, himself, upon his return from abroad in October 1960 However, the effective date of the contract is September 1, 1960, and Ferguson testified that the contract was already in effect when he signed it. Accordingly, even if one accepts Ferguson's testimony that he personally signed the contract about a month after it was placed in effect, such testimony would merely confirm the view that Ferguson's signature was regarded as a mere formality. BANNER YARN DYEING CORPORATION 1027 wise) signed the current contract with Respondent as such participation by him in negotiations as is interdicted by the Nassau case. There remains for consideration the fact that (1) Ferguson had the power, albeit not exercised, to participate directly in negotiations with the Respondent, and (2) as a union officer, he controlled to some degree the tenure and compensation of those union representatives who actually conducted such negotiations. As to (1), it is true that under the provision of the Union's International constitu- tion, cited above, the 21-man executive board, of which Ferguson was a member, was authorized to negotiate directly with employers. However, as already noted, in the Nassau case the Board held the employer respondents responsible for participa- tion by their supervisors in negotiations as union representatives solely on the ground that, upon encountering at the bargaining table their own supervisors, bear- ing the taint of an "apparent employer interest," such respondents had failed to register any objection to dealing with the supervisors. No similar basis for employer responsibility appears here, as it is undisputed that, notwithstanding his power to do so, Ferguson never directly represented the Union in negotiations as a member of the executive board (or otherwise).32 (2) It is true that Ferguson, together with the other union officers, appointed an individual (Corrigan) to fill a vacancy in the office of business manager, and that, as an officer and as a member of the 21-man executive board, Ferguson recommended to the membership the election of Treacy as organizer.33 However, Corrigan did not participate in any negotiations with Respondent, his appointment having been made about a year after the latest contract with the Respondent was executed. While Treacy (together with Donovan, the ,then business manager 34) did represent the Union in negotiating the current contract with the Respondent, there is no evidence that Ferguson influenced Treacy in any way in the conduct of the negotiations, or that Respondent was even aware of the attenuated role that Ferguson played in the selec- tion of Treacy Under these circumstances, I do not believe that under the rule of the Nassau case Respondent was required, upon encountering Treacy at the bargain- ing table, to object to his representing the Union or to regard Treacy's as "tainted with an apparent employer interest." As I do not regard Ferguson's control over Treacy's tenure to warrant a violation finding, it follows a fortiori that I cannot base any such finding on the fact that the 21-man executive board, of which Ferguson was a member, had the power to affect Treacy's compensation by recommending the rejection of any claim Treacy might make for reimbursement of expenses. Moreover, there is not even any evidence that such a claim was ever made by Treacy. In sum, the record in my opinion affords no basis for finding that Ferguson's participation in union affairs was such as to constitute unlawful interference by the Respondent in the administation of the Union.35 33 Moreover , even apart from the holding in Nassau, one may well ask whether under any circumstances a provision in a union's constitution which authorizes unlawful conduct may, standing alone, convict a respondent of a violation of the Act Suppose such a pro- vision authorized the Union to employ violence on the picket line or to engage in juris- dictional strikes Would the Union violate the Act by reason of the mere existence of such a provision , absent any evidence of such violence or strikes9 The question suggests the answer 33 Ferguson also presided at the membership meeting in which Treacy was elected organizer. 34 So far as the record shows , Ferguson had no hand in Donovan 's selection , as he was elected by the members Donovan handled a grievance early in 1961 arising from the discharge of Ferguson ) by the Respondent, and procured his reinstatement So far as appears from the record, this was the only grievance discussed by the Union with Respondent's higher management during the past 8 years 35 As noted above ( see footnote 1), the Board in its decision herein of January 15, 1962, reversed the action of Trial Examiner Whittemore in dismissing the original complaint for failure to state a cause of action However, the original complaint , in essence, alleged merely that the Respondent had unlawfully interfered with the administration of the Union by permitting its supervisors to participate in union affairs , and made no reference to the fact that such supervsors were members of the bargaining unit, nor did such com- plaint disclose that, as I have found , such participation did not include negotiations with the Respondent. As already stated, under Board precedents , had Ferguson not been a member of the bargaining unit or had he engaged directly in negotiations with the Re- 672-010-63-vol 139-66 1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD RECOMMENDED ORDER Upon the basis of the foregoing findings of fact, and upon the entire record in this case, it is recommended that the amended complaint herein be dismissed. spondent on behalf of the Union, the Respondent would have been properly charged with a violation of the Act. The complaint was not so narrowly drawn as to preclude proof of either of these matters , and under well-established rules of pleading , in ruling on a motion to dismiss, the Board was entitled to construe the complaint most favorably to the General Counsel. As these considerations would suffice to explain the Board 's action in reinstating the complaint , it seems permissible to regard such action as not necessarily dispositive of the issues before me. The Duplan Corporation (Forsyth Division) and Brice C. Oakley The Duplan Corporation ( Forsyth Division ) and Textile Workers Union of America, AFL-CIO-CLC The Duplan Corporation ( Forsyth Division) and Textile Workers Union of America, AFL-CIO-CLC. Cases Nos. 11-CA-1886, 11-C,A-1922, and 11-RC-1611. November 16, 1962 DECISION AND ORDER On August 1, 1962, Trial Examiner Harold X. Summers issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent has engaged in and is engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, and recommending further that the elec- tion conducted on May 3, 1962, in Case No. 11-RC-1611 1 be set aside, and a new election held, as set forth in the attached Intermediate Report.2 He further found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that the complaint be dismissed with respect thereto. Thereafter, the Respondent filed exceptions to the Intermediate Re- port, but no supporting brief. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Fanning, and Brown]. 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- 1 Pursuant to a Decision and Direction of Election issued by the Regional Director for the Eleventh Region on April 6, 1962 ( not published in NLRB volumes). 2 On the basis of an investigation of objections to the election held May 3 , 1962, the Regional Director Issued a Supplemental Decision and Direction (Case No. 11-RC-1611) in which he determined that certain issues raised by the investigation could best be re- solved by a hearing. The Regional Director subsequently issued an amended order con- solidating the "C" cases herein with Case No. 11-RC-1611 for hearing and calling for a report to the Regional Director in Case No . 11-RC-1611 . On June 11, 1962, the Supple- mental Decision and Direction was further amended to the effect that the Trial Examiner's recommendations in the "R" ease should be directed to the Board. 139 NLRB No. 87.