Cabinet Manufacturing Corp.

842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dairy, Inc., or Timber Valley Dairy, Inc., or to cease doing busi- ness with Curly's Dairy, Inc., or Timber Valley Dairy, Inc. GENERAL TEAMSTERS LOCAL No. 324, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFERS, WARE- HOUSEMEN & HELPERS OF AMERICA, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 327 Logan Building, 500 Union Street, Seattle, Washington, Telephone No. Mutual 2-2300, Extension 553, if they have any ques- tion concerning this notice or compliance with its provisions. Cabinet Manufacturing Corporation and Chauffeurs, Teamsters, and Helpers Local Union 215, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica. Case No. 25-CA-1655. September 26, 1963 DECISION AND ORDER On May 8, 1963, Trial Examiner James A. Shaw issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Interme- diate Report. Thereafter, the Respondent and General Counsel filed exceptions to the Intermediate Report and supporting briefs. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman McCulloch and Members Fanning and Brown]. The Board has reviewed the rulings made by the Trial Examiner ands finds that no prejudicial error was committed.1 The rulings are I Respondent made the following contentions : ( 1) The Trial Examiner's credibility reso- lutions in favor of General Counsel's witnesses demonstrated his bias and prejudice against the Respondent ; ( 2) Harry Berns, counsel of record for the Union, became a pri- mary witness for the General Counsel but remained an advocate on behalf of both contrary to canon 19 of the Canons of Professional Ethics of the American and Indiana Bar Asso- ciations ; ( 3) the Trial Examiner improperly took cognizance of the Board 's recent deci- sion involving the Respondent Company, 140 NLRB 576, wherein it was found that Re- spondent refused to bargain in violation of Section 8(a) (5) and ( 1) of the Act. As to (1), we find , upon careful analysis of the entire record, that the Trial Examiner was not biased 144 NLRB No. 82. CABINET MANUFACTURING CORPORATION 843 hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclusions, and recommenda- tions with the following modifications.2 THE REMEDY As found by the Trial Examiner, the parties agreed on August 28, 1962, to all the terms of a contract including a termination clause .3 According to the uncontradicted testimony of John Mofield, assistant business representative of the Union, "it was the understanding that we [the parties] were negotiating for a year," and that in accordance with the practice of the Union and companies in negotiations the blank dates in the termination clause as quoted in the Intermediate Report were to be filled in when the contract was concluded or signed. We shall therefore order the Respondent, if it is requested to do so, to sign the above-specified contract tendered to it by the Union on Sep- tember 13, 1962, minus the retroactivity clause in subsection 2 of article XX, to be effective for 1 year from the date of execution there- of, with the automatic renewal provisions set forth in said contract. If no such request is made, we shall order the Respondent, upon re- quest, to bargain collectively with the Union as the exclusive repre- sentative of the employees in the appropriate unit, and, if an under- standing is reached, to embody such understanding in a signed contract. and prejudiced as his credibility findings resulted from a fair appraisal of the evidence as a whole and the demeanor of the witnesses . See N L .R.B. v. Pittsburgh S S. Company, 337 U.S. 656. As to ( 2), there is no indication that the Trial Examiner in evaluating Berns' testimony did not take into account his interest in this proceeding. Moreover, canon 19 states that it is not improper for an attorney to testify on behalf of his client where, as here, it is essential to the ends of justice. As to ( 3), we find no merit in Respondent's contention that the Board may not take official notice of its earlier decision until the court of appeals grants enforcement thereof. In any event , we, like the Trial Examiner, rely solely on the evidence adduced in the instant case in concluding that the Respondent's conduct in refusing to sign the agreement reached by the parties on August 28, 1962, con- stituted an unlawful refusal to bargain. 2 The General Counsel excepts to the Trial Examiner's failure to find as a fact that the Union represented a majority of the employees in the appropriate unit. In view of the certification of the Union on July 24, 1961, Case No. 25-RC-1515, and the fact that Respondent at no time challenged the Union 's status as the employees' representative, we find that the Union has at all times since its certification been the exclusive representa- tive of the employees in the appropriate unit. Without necessarily adopting the Trial Examiner 's interpretation of the termination clause proposed by the Respondent on October 10, 1962, as "meaningless" and a "sham," we agree with the Trial Examiner that Respondent 's interjection of a new termination clause after the parties agreed to the terms of the contract on August 28, 1962, demon- strated Respondent's bad faith in violation of Section 8(a) (5) and ( 1) of the Act. 8 As stated in the Intermediate Report, the agreement reached on August 28 was em- bodied in a draft by the Union and sent to the Respondent on September 13, 1962 As the Union in an effort to have the agreement signed on October 1, 1962, waived the retro- activity clause in article XX, subsection 2, the Trial Examiner recommended that this pro- vision be omitted from the agreement to be signed. We agree. 844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Cabinet Manu- facturing Corporation, Evansville, Indiana, its officers, agents, succes- sors, and assigns, shall : 1. Cease and desist from : (a) Refusing, if requested to do so by Chauffeurs, Teamsters, and Helpers Local Union 215, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, to sign the agree- ment reached with the above-named Union on August 28, 1962, and drafted by the Union on September 13, 1962, excluding the retro- activity clause in article XX, subsection 2, to be effective for 1 year from the date of its signing, with the automatic renewal clauses set forth therein. (b) If no such request is made, refusing on request to bargain col- lectively with the Union as the exclusive bargaining representative of its employees in the appropriate unit described below : All production and maintenance employees at its plant in Evansville, Indiana, exclusive of office clericals, plant clericals, foremen, guards, professional employees, and supervisors as de- fined in the Act. (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization, to join or assist labor organizations, to bargain collec- tively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action which will effectuate the policies of the Act : (a) Upon the request of the above-named Union, sign forthwith the agreement reached with the Union on August 28, 1962, and em- bodied in the draft tendered to it by the Union on September 13, 1962, excluding the retroactivity clause in article XX, subsection 2, to be effective for 1 year from the date of execution thereof, with the auto- matic renewal clauses set forth therein. (b) If no such request is made, then, upon request, bargain collec- tively with the Union as the exclusive representative of the employees in the appropriate unit and, if an understanding is reached, embody such understanding in a signed agreement. (c) Post at its Evansville, Indiana, plant, copies of the attached notice marked "Appendix." 4 Copies of said notice, to be furnished ' In the event that this Order is enforced by a decree of a United States Court of Appeals, the notice shall be amended by substituting for the words "A Decision and Order" the words "A Decree of the United States Court of Appeals, Enforcing an Order." CABINET MANUFACTURING CORPORATION 845 by the Regional Director for the Twenty-fifth Region, Indianapolis, Indiana, shall, after being duly signed by a representative of the Re- spondent, be posted by it immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Twenty-fifth Region, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith.: APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL, if requested to do so by Chauffeurs, Teamsters, and Helpers Local Union 215, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, sign and execute forthwith the agreement reached with the Union on August 28, 1962, and embodied in the draft tendered to us on September 13, 1962, by the Union, excluding the retroactivity clause in article XX, subsection 2, to be effective for 1 year from the date of execution thereof, with the automatic renewal clauses set forth therein. IF NO SUCH REQUEST IS MADE, WE WILL, upon request, bargain collectively with the above-named Union for the unit described herein with respect to rates of pay, wages, hours of work, and the terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is : All production and maintenance employees at our plant in Evansville, Indiana, exclusive of office clericals, foremen, guards, professional employees, and supervisors as defined in the Act. WE WILL NOT, by refusing to bargain in good faith, or in any like or related manner, interfere with, restrain, or coerce our em- ployees in the exercise of their rights to self-organization, to form, join, or assist the above-named Union or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the pur- 846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. CABINET MANUFACTURING CORPORATION, Employer. Dated---------------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 614 ISTA Center, 150 West Market Street, Indianapolis, In- diana, Telephone No. Melrose 3-8921, if they have any question con- cerning this notice or compliance with its provisions. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon a charge filed October 3, 1962, by Chauffeurs, Teamsters, and Helpers Local Union 215 , International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, herein called the Union, the General Counsel of the Na- tional Labor Relations Board, herein respectively called the General Counsel 1 and the Board, through the General Counsel for the Twenty-fifth Region (Indianapolis, Indiana), issued a complaint dated December 3, 1962, against Cabinet Manufactur- ing Corporation, Evansville, Indiana, herein called Respondent, alleging that Re- spondent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (5) and Section 2(6) and (7) of the National Labor Relations Act, as amended from time to time, 61 Stat. 136, herein called the Act .2 Copies of the charge and complaint, together with notice of hearing thereon, were duly served upon Respondent and copies of the complaint and notice of hear- ing were duly served upon the Union. Thereafter the Respondent filed motions to "Extension of Time In Which To Answer General Counsel's Complaint" and to "Make More Definite and Certain." In due course, these motions were disposed of by the Regional Director on December 10, 1962, and Trial Examiner Laurence A. Knapp, on January 23, 1963. In the interim, the Respondent filed an answer to the complaint on January 3, 1963; and thereafter an amended answer on January 25, 1963, in which it admitted certain jurisdictional matters, but denied the commission of any of the alleged unfair labor practices.3 Pursuant to due notice, a hearing was held on February 5 and 6, 1963, at Evans- ville, Indiana, before Trial Examiner James A. Shaw. Each party was represented by counsel who actively participated in the hearing. Full and complete opportunity was afforded the parties to be heard , to examine and cross-examine witnesses, to present evidence pertinent to the issues , to argue orally at the conclusion of the tak- ing of the evidence, and to submit briefs .4 On or about March 20, 1963, briefs 1 This term specifically includes counsel for the General Counsel appearing at the hear- ing herein. z See infra for a more detailed analysis of the complaint 3As Indicated the Respondent filed certain motions before the case came on for hearing herein. As a result the exhibit file contains numerous documents , including in particular, briefs in support of the Respondent's position in its "Motion To Make More Definite and Certain." Consequently the "Formal Papers" consists of exhibits Nos. 1-A to 1-Z._ Since the documents in question are identified in exhibit No. 1-Z, "The Index," I deem further comments in this regard unnecessary. 4 At the completion of the taking of testimony at the hearing herein, counsel for the Respondent renewed his motion to dismiss the complaint, which had been previously denied by me at the close of the General Counsel 's case-in-chief. Ruling thereon was reserved. It is hereby denied for reasons set forth herein below. CABINET MANUFACTURING CORPORATION 847 were received from counsel for the General Counsel and the Respondent. They have been carefully considered. Counsel for the Respondent in his brief embodied a "Motion For Time To File Reply Brief" to the General Counsel's brief. I denied his request on April 11, 1963. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS OPERATIONS The complaint alleges, the answer admits, and I find, that: "The Respondent is, and has been at all times material herein, a corporation duly organized under, and existing by virtue of, the laws of State of Indiana; at all times material herein, the Respondent has maintained its sole office, plant, and place of business in Evansville, Indiana, and is, and has been at all times material herein, engaged at said plant and place of business in the manufacture, sale, and distribution of cabinets and furniture parts; 5 the Respondent during the past 12 months, which period is representative of all times material herein, in the course and conduct of its business operations, manufactured, sold, and shipped from its Evansville, Indiana, plant, products valued in excess of $50,000, to points outside the State of Indiana; the Respondent is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act." 6 II. THE LABOR ORGANIZATION INVOLVED Chauffeurs, Teamsters, and Helpers Local Union 215, International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, herein referred to at times as the Union, Local 215, or Teamsters, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background No proper understanding of the issues herein could be had without a summation of the events that preceded the filing of the charge herein by the Union on October 3, 1962. With that in mind let us first go back to the certification of the Union as the collective-bargaining representative in the unit found appropriate by the Board on July 24, 1961, in Case No. 25-RC-1999. Since the complaint alleges, and the answer concedes, that the foregoing unit is appropriate for the purposes of collective bargaining, I find that: "All production and maintenance employees of the Respond- ent at its Evansville, Indiana, plant, exclusive of office clerical employees, plant clerical employees, foremen, all guards, professional employees, and supervisors as defined in the Act constitute a unit appropriate for the purpose of collective bar- gaining within the meaning of Section 9(b) of the Act." In order to get a picture, so to speak, of what transpired after the Union was certified by the Board as the bargaining agent for the employees in the above- described appropriate unit, and the predicate for the charge against the Respondent by the Union with which we are concerned herein, one of necessity must take cognizance of a previous case involving the parties herein. I have reference to Case No. 25-CA-1515, which was heard by Trial Examiner Robert E. Mullin on May 28 and 29, 1962, in Evansville, Indiana. This complaint in that case, which was predicated on a charge filed by the Union, likewise involved alleged violations of Section 8(a)(5) and (1) of the Act. In due course, the Trial Examiner issued his Intermediate Report in the matter on September 17, 1962, in which he found that the Respondent had engaged in conduct violative of Section 8(a)(5) and (1) of the Act, which were affirmed by the Board in its Decision and Order on January 10, 1963, 140 NLRB 576. At this point I desire to point out to all concerned herein that though I take official notice of the Board's Decision and Order in the previous case, I am well aware of the fact that we are concerned herein with a separate and distinct cause of action. In the circumstances, I assure the parties that I will dispose G Such as ".piano cases" which are "finished" at its Evansville, Indiana, plant, and shipped to French Lick, Indiana, where they are used in the manufacture of the "Kimball" piano. 8 Quotes from the complaint. 848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the issues herein in the light of the record , considered as a whole, and let the chips fall where they may. Now as to the issues we are confronted with herein . The issues are best stated in paragraph 8 of the complaint, and for this reason I feel that it should be set forth below in its entirety: 8. Commencing on or about July 24, 1961, and at all times thereafter, the Respondent did refuse, and continues to refuse, to bargain collectively with the Union as the exclusive collective bargaining representative of all the employees in the unit described above in paragraph 5, in that (a) On or about July 12, August 14, August 15, August 21, August 28, 1962, the Respondent and the Union met in negotiations for the purpose of negotiating a collective bargaining agreement. (b) On or about August 28, 1962, the Respondent and the Union reached an agreement on a collective bargaining contract covering the employees in the appropriate bargaining unit described in paragraph 5 above. (c) On September 13, 1962, and continuously thereafter to the date hereof, including specifically and without limitation , on October 1, 10, 31, and No- vember 16, 1962, the Union has demanded that Respondent bargain with the Union and execute the contracts negotiated by the Respondent and the Union, as more fully described in paragraph 8 (b) hereof. (d) Since on or about September 13, 1962, and at all times thereafter, includ- ing specifically and without limitations, on October 1, 10, November 12, 1962, Respondent has refused, and continues to refuse, to sign a written agreement embodying rates of pay, wages, hours of employment, or other conditions of employment agreed upon between the Respondent and the Union, as more fully described in paragraph 8 (b) hereof. (e) Since on or about September 13, 1962, and at all times thereafter, in- cluding specifically and without limitation, on October 1, 10, November 12, 1962, Respondent has insisted and demanded, as a condition precedent to the execution of any collective bargaining agreement , that the Union agree to modifications in the collective bargaining agreement agreed upon between the Respondent and the Union, as more fully described in paragraph 8(b) hereof. (f) On October 1, 10, and November 12, 1962, Respondent attempted to withdraw its approval of certain provisions in the collective bargaining agree- ment agreed upon between the Respondent and the Union, as more fully de- scribed in paragraph 8(b) hereof. (g) Respondent engaged in the conduct alleged in paragraph 8(e) and 8(f) hereof in an effort to thwart the execution of the collective bargaining agree- ment agreed upon between the Respondent and the Union, as more fully de- scribed in paragraph 8(b) hereof. As indicated above the Respondent in its answer, "specifically" denied each and every allegation in the complaint. This brings us up to the determination of the issues that we are concerned with herein. Insofar as I am concerned, there is only one issue before me for determination. My conclusion in this regard will be dis- cussed in detail below. After long and careful consideration of the record adducd at the hearing herein and the briefs of the parties, I find that the sole issue is whether or not the Respond- ent refused to sign a written agreement with the Union after the parties had reached an agreement on the issues at the August 28, 1962, meeting. The negotiations between the parties, insofar as the issues herein are concerned started in July 1962. This is evidenced in the documentary evidence that was of- fered in evidence at the hearing, and admitted without objection from Respondent. Since these documents, which for the most part are copies or originals, of proposals submitted by the parties at their bargaining sessions, were referred to time and again in the testimony of the witnesses as, for example, "Number 8" or "Number 10," I feel that a description of the documents referred to should be shown. Consequently, a brief summary thereof follows below: General Counsel's Exhibit No. 3-Letter from John Mofield, Assistant Busi- ness Agent, Local 215 to the Respondent, dated July 18.7 General Counsel's Exhibit No. 4-The document referred to in General Counsel's Exhibit No. 3. General Counsel's Exhibit No. 5-Letter from Respondent to the Union- dated July 31, 1962,-relative to "wages." 7 See infra for letter. CABINET MANUFACTURING CORPORATION 849 THE JASPER CORPORATION Manufacturers of Quality Cabinets and Contract Furniture P.O. Box 360 , Telephone 235 Jasper , Indiana July 31, 1962 CHAUFFEURS, TEAMSTERS, AND HELPERS, Local Union 215, 216 N. Fulton Avenue, Evansville 10, Indiana. (Attention : Mr. John Mofield) DEAR MR. MOFIELD : Attached please find a comprehensive list of incentive rates for CMC. As we previously stated, several fundamental procedures were changed during our investigation, hence the delay. Actually, I hope we were permitted enough time for satisfactory findings. We are currently working on additional language to accompany this list of rates to make it a wage proposal . We will also forward our additional pro- posals as soon as we can get them completed. Thank you for your indulgence. Respectfully yours, THE JASPER CORPORATION, (S) Maurice R. Kuper, MAURICE R. KUPER, Vice President, Contract Division. MRK/dme cc: Mr. Ed Windes, U.S. Mediation & Conciliation Service. Art Nordhoff. T. L. Habig. General Counsel 's Exhibit No. 6-The wage proposals referred to in Gen- eral Counsel's Exhibit No. 5. General Counsel's Exhibit No. 7-"Company's proposal" for the following Articles in the Agreement under discussion , Holidays, Insurance, Vacations, and Wages. General Counsel's Exhibit No. 8-"Cabinet Manufacturing Company Sub- mits To The Union Bargaining Committee It's Proposal for A Contract As Follows," August 15, 1962. General Counsel's Exhibit No. 9-Letter from Union to the Respondent dated September 13, 1962. General Counsel's Exhibit No. 10-The document referred to the General Counsel's Exhibit No. 9. General Counsel's Exhibit No. 12-Respondent's proposed changes in the contract discussed and agreed upon at the August 28, 1962 meeting.8 Submitted to the Union Negotiations at the October 10, 1962 meeting. We are primarily concerned herein with the meetings between the parties from July to October 1962. Though the complaint alleges, and the record shows, that the parties met and negotiated on several occasions during the months of July and August 1962, I am convinced and find that the most important meetings were on August 14, 15, 21, and 28, 1962. Each in its turn will be discussed below. At this point I desire to point out that all of the meetings between the parties in- volved herein were held in the offices of Edward Windes, conciliator for the Federal Mediation and Conciliation Service, in Evansville , Indiana. Though he was re- ferred to time and again by the witnesses at the hearing herein, I will ignore all testi- mony that refers to statements allegedly made by him at the meetings between the purports. For obvious reasons, further comment in this regard is unnecessary. The first important meeting of the parties after the hearing in the prior case was held on or about July 12, 1962. At this meeting it was agreed that the Union would draw up a list of the items that they were in agreement on and submit it to the Company. On July 18, 1962, John Mofield, assistant business representative for the Union, drafted up the document referred to above as General Counsel 's Exhibit No. 4, and mailed it to Arthur G. Nordhoff, Esq., counsel for the Respondent at all times material herein . At the same time he sent the following letter to Nordhoff: 8 See infra for clarification of this description , and further discussion as regards this particular exhibit. 850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mr. ARTHUR C. NORDHOFF, Attorney-at-Law, 202 Kuebler Building, Jasper, Indiana. JULY 18, 1962. DEAR MR. NORDHOFF: The enclosed is a redraft of items agreed to during negotiations with Cabinet Manufacturing Corporation. We are also including Articles as numbered which are not agreed to and are so marked. In our last meeting held in the office of Mr. Edward F. Wmdes, it was agreed that the Union would make this draft of all items that have been agreed and that the Company would draft new Proposals on wages, vacations and Holiday pay, etc. There are other items including Union membership and check-off that will have to be worked out in our subsequent meeting. It would be appreciated if you will arrange to meet with us at the earliest date possible in order to complete contract negotations. With my very best wishes, please permit me to remain Very truly yours, JM: vs Encs. cc: Mr. Edward F. Windes. JOHN MOFIELD, Assistant Business Representative. Mofield, in drafting the Union's proposal, referred to above, used the Union's standard form contract, from which he had drafted contracts with other employers over the years as a "guideline ." Of particular importance insofar as the issues herein are concerned is article XXIV, "Termination," of which more below. Further ex- amination of the Union's proposal (exhibit No . 4) shows that the parties at this stage of their negotiations , which incidentally had been in "progress" for almost a year, or since September 1, 1961 , were as follows: 9 Preamble. Article I. Article II. Article IV. Article V. Article VI. Article VII. Article VIII. Article IX. Article X. Article XI. Article XII. Article XIII. Article XIV. Article XIX. Article XX. Article XXI. Article XXIII. Article XXIV. Witnesseth Recognition Section 1, New Employees Right of Entry Hours of Employment Seniority Grievances and Arbitration 10 Management Rights Strikes and Lockouts Discharge and Suspension Leaves of Absence Pregnancy Leave Funeral Leave Stewards Health, Safety and Sanitation Pay Period Compensation Separability and Savings Clause Termination [Emphasis supplied.] The following items, according to Mofield 's "draft," were not agreed upon: Article II. Union Membership Article III. Section 2, Re New Employees Article XV. Holidays Article XVI. Insurance Article XVII. Check-Off Article XVIII. Paid Vacations Article XXII. Wages After Mofield submitted the above -described document on July 18, 1962, to the Respondent, the following important incidents occurred . On August 1 and 9, 1962, 9 From the General Counsel's brief. 10 Not to be confused with grievances which were pending at times material herein, of which more below. CABINET MANUFACTURING CORPORATION 851 the Respondent submitted to the Union proposals on wages, holidays, insurance, and vacations. Thereafter the parties met on August 14, 1962. At this meeting they discussed, inter alia, the Respondent's incentive and wage proposals. In addi- tion there was discussion regarding the "attitude of the employees" in the unit. According to the record, the employees by this time were thoroughly disgusted with the "bickering" between the parties, and understandingly so because it must be remembered that it had been over a year since the Union was certified by the Board as their collective-bargaining representative. In addition they had been through one unfair labor practice proceeding, and the predicate for another was in the making. In such a state of affairs their unrest is understandable, at least to me. That the representatives of the Union were well aware of the prevailing "atmosphere," is evidenced by the fact that at the August 14, 1962, meeting, they advised the repre- sentatives of the Respondent that a strike vote was to be taken among the employees on the next day, August 15, 1962. At this point the parties adjourned the meeting and agreed to meet the next day before the strike vote was taken. This brings us up to the meeting of August 15, 1962, which I, for reasons set forth below, consider of major importance. My reasoning in this regard is predicated on the fact that at this meeting the Respondent presented to the ". . . Union Bargaining Committee Its Proposal for a Contract as Follows:-" 11 As indicated above this proposal was admitted into evidence as General Counsel's Exhibit No. 8, and is referred to repeatedly throughout the record by counsel for the parties and the witnesses, par- ticularly Mofield and Berns, as "No. 8." At this point it should be pointed out that the General Counsel stated to the record that the testimony elicited from the wit- nesses and the documentary evidence, up to and including the testimony regarding the meeting of August 15, 1962, was primarily for background purposes; and that the issues herein, generally speaking, start with the testimony of the witness Mofield about the meeting of August 28, 1962.12 The General Counsel's position in this regard is borne out by the testimony of the witnesses, and is in accordance with the allegations of paragraph 8 of the complamt.13 Even so, the meeting of August 15, 1962, is of major importance in my ultimate disposal of the issues for reasons which will be apparent below. The importance of the Company's proposal, that is "No. 8," that was presented to the union negotiators, is well illustrated in the first paragraph thereof which is set forth herein below, in toto: "August 15, 1962" As a counter-proposal in the negotiations for the contract of this Company, the Company proposes that it will accept the provisions agreed to as set forth in the last proposal made by the Union and submitted on July 25, 1962, by the union bargaining committee. With reference to all items in dispute the Company will further agree as follows:-14 The following were present at the August 15, 1962 meeting: For the Union For the Respondent John Mofield, assistant business Arthur C. Nordhofj, Esq. representative Local 215 Maurice Kuper, vice president Mike Martin and Charles Bahu, consultants from the Uphol- sterers Union Ellen Zirkelbach and Larry Thurby, members of Local 215 committee The meeting was likewise held in the offices of Edward Windes, conciliator for the Federal Mediation and Conciliation Service, who presided at the meeting the same as he had in the past throughout the negotiations of the parties. 11 Quotes from General Counsel's Exhibit No. 8. 12 See page 66 of the transcript of the record adduced at the hearing herein 13 See supra. 14 The importance of the "Preamble" of "Exhibit 8" will be apparent below, especially as to the termination clause that was set forth in Mofield's proposal mailed to the Respondent on July 18, 1962, General Counsel's Exhibit No. 4, and presumably considered by it at the time it drafted the "proposal" we are now concerned with. My conclusion in this regard is predicated upon the language used by the Respondent in Exhibit No. 8, and the further fact that it does not mention the termination clause as ". . . being In dispute." 727-083-64-vol. 144-55 852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD That the negotiators for the Union were most anxious to reach an agreement between the parties is well illustrated in the following excerpt from Mofield's testimony: Q. . Did you make a statement at the opening of the meeting? A. I did. Q. What did you say? A. I said we would go to extremes to reach an agreement, if we could reach a fair agreement that both sides could live with, that the Union wanted very badly to wind these negotiations up, and try to come up with something that both sides ° could live with. At this point I direct the attention of all concerned herein that Thomas L. Habig, executive vice president of the Respondent, was not present at this meeting of August 15, 1962. The importance of this observation will likewise be apparent below in the section of this report concerned with the meeting of October 1, 1962. Suffice it to say at this point that Habig was considered by other negotiators for the Re- spondent as the "Captain of the Team," and his absence from the meeting in question which was held on the "eve of a strike threat," so to speak, is difficult to fathom in light of the Respondent's contention regarding the importance of his absence at the meeting of October 1, 1962, of which more below. The parties discussed at great length the five proposals contained in "Exhibit No. 8," namely, grievances and arbitration, holidays, insurance, vacations, and wages. Insofar as I am concerned, the parties sat down and negotiated back and forth on the above items and reached an agreement on such items as the Respondent's wage offer as set forth in paragraph 1 of "Exhibit No. 8," holidays and vacations, except as to a minor issue. Among the Union's proposals that were not settled at the meeting were the following, major medical plan, of which more later, agency shop, and checkoff. There was also discussion back and forth about the "incentive" wage plan of the Respondent, and of the major proposals of the Respondent, which is found in section (2) of V of its proposal of August 15, 1962,15 which reads as follows. After thirty (30) day probationary period, all employees are placed under the Company's incentive system. (Note: A schedule of these rates as previously submitted at the negotiation meeting held on August 14, 1962, with an increase of 5% across the Board on all incentive rates to be effective the week of August 20, 1962, if the terms of this paragraph are accepted by the employees.) [Em- phasis supplied.] The importance of the foregoing will be apparent below in that section of this report dealing with the meeting of October 1, 1962. Suffice it to say at this point that this section of the Respondent's proposal raised the issue as to "Retroactivity" of the wage increase at the October 1, 1962, meeting; and was an important issue at that meeting. Though no final agreement was reached by the parties on several of the Respond- ent's proposals in "Exhibit No. 8," it was submitted to the membership of Local 215, for consideration at a meeting held on the evening of August 15, 1962. What tran- spired at the meeting is best told in Arden's letter to the Respondent dated August 16, 1962, which follows herein below: CHAUFFEURS, TEAMSTERS, AND HELPERS LOCAL UNION 215 Affiliated With International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America Office Telephones 216 N. FULTON AVENUE, HArrison 5-5169 EVANSVILLE 10, INDIANA, HArrison 5-5160 August 16, 1962. CABINET MANUFACTURING CORP., 416 N. Seventh Ave., Evansville, Indiana. GENTLEMEN: Please be advised that your employees voted by an overwhelm- ing majority in a secret ballot to reject your offer of August 15, 1962. By a similar vote members of Teamsters Local #215 voted to inform you that if an acceptable collective bargaining agreement is not agreed upon and ratified by the majority of your employees by Tuesday, August 21st, 1962, this Local Union cannot guarantee that your employees will continue to work. 15 General Counsel's Exhibit No. 8. CABINET MANUFACTURING CORPORATION 853 However, we feel that our problems can be resolved by further negotiation and request that you name the time and place that we can meet for this purpose. Yours very truly, (S) C. K. Arden, C. K. ARDEN, President & Business Representative. CKA/w certified mail return rec. req. We now come to the meeting of August 21 , 1962. This meeting, like the previous ones, was held in the offices of Edward Windes , conciliator for the Federal Media- tion and Conciliation Service. The Union was represented by Harry Berns, research director of the Indiana Conference of Teamsters, Glenn Wilkinson, a business agent for Local 215, Charles Bahu, an agent for the Upholsterers Union, and the same two committee members that attended the previous meeting, Ellen Zirkelbach and Larry Thurby. The Respondent's representatives were Nordhoff, Kuper, and Habig. According to the credible testimony of Berns, Windes, at the onset of the meeting, passed around a typewritten copy of items that he ". . . said were the issues remain- ing between the parties ." 16 Berns further testified that the parties agreed on the following items in Respondent 's proposal of August 15, 1962, holidays, vacations, and all of the Respondent's proposals as to wages, except "Item 9 of Paragraph 9 of Item V." One of the preamble issues discussed at this meeting was item V, sub- section (9), of the Respondent's proposal of August 15, 1962, as pointed out above, subsection (9) provided-"Rates of pay and incentive rates, as set forth in this contract . shall not be subject to the arbitration procedure set forth in the con- tract." Though nothing definite was reached as to this particular item until the meet- ing on August 28, 1962, I feel that I should mention it at this stage of the re- port, because it was discussed at considerable length at the meetings on August 28 and October 1 and 10, 1962, of which more later. Of further importance is the fact that the "Termination Clause" as set forth in the Union's proposal of July 18, 1962, was not discussed by the parties. The importance of my observation in this regard will likewise be apparent below in my disposal of what occurred at the October meet- ings between the parties. The parties were in agreement regarding a contract at the end of the August 21, 1962, meeting except as to the following issues, item I, pertaining to "-Article VII" of the Union's proposal of July 19, 1962 (General Counsel's Exhibit No. 4), the "major medical plan" that the Respondent had installed in April 1962, agency shop, checkoff, and the wages of the "non-incentive employees." This brings us up to the meeting of August 28, 1962, which as indicated above is without question the most important meeting between the parties insofar as the issues herein are concerned.17 10 Quotes from Bern's credible testimony . Berns further testified that he had tried to get a copy of the document that Windes passed around to the parties at the onset of the hearing on August 21 , 1962, but was unable to do so, because Windes was in the course of moving his office at the time he made the request, and his papers were packed away in boxes. 17 At this point I desire to point out to all concerned that all of the foregoing was offered by the General Counsel for background purposes and that the primary issues that we are concerned with herein start with the meeting of August 28, 1962 With this in mind , I assure the parties that my findings regarding the pertinent facts will be made in the light of (my observation of the conduct and deportment at the hearing of all the persons who testified herein, and after a very careful scrutiny of the entire record, all of which has been carefully read and reread several times , and being mindful of the contentions of the parties, in their briefs, with respect to the credibility problems here involved, of the fact that in many instances testimony was given regarding what was said and agreed upon at meetings held (months before the opening of the hearing herein on February 5, 1962 , and the further fact that very strong feelings have been "generated" by the circum- stances of this case ( including a previous Board hearing), coupled with the fact that it would unnecessarily protract this report to summarize all the testimony , oral and docu- mentary ( which is at least an inch and a half thick ), or to spell out fully the confusion, mechanical and otherwise, in the record , and inconsistencies therein, the following is a composite picture of all the factual issues involved and the conclusion based thereon. The parties may be assured that in reaching all resolutions , findings, and conclusions herein, the record as a whole has been carefully considered ; relevant cases have been studied , and each contention advanced has been weighed , even though not specifically discussed. 854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The August 28, 1962, meeting like the previous meetings was held in the office of Windes, the Federal mediator. The following were present at the meeting for the Union, Mofield, Berns, Bahu, from the Upholsterer's Union, and Larry Thurby and Mrs. Ellen Zirkelbach from the employees' committee; and for the Respondent, Nordhoff, Kuper, and Habig. According to the record the parties discussed the issues back and forth, and, as in the previous meeting, used the Respondent's pro- posals, as set forth in "Exhibit No. 8." Quite frankly, insofar as I am concerned, the parties engaged in what is generally considered real bargaining at the meeting in question. According to the testimony of Berns and Mofield the parties reached an agreement on all items that were in dispute. After considerable discussion back and forth the Union abandoned its request for the agency shop, checkoff, recommend clause, and the "major medical rider." In addition the Union agreed to accept the Respondent's proposals about the language in subsection "9 of V" of "No. 8." 18 At the close of the meeting it was agreed that Mofield would prepare a draft of the "Contract" the parties agreed upon. After the parties had reached the agreement referred to above, an incident occurred that has perturbed me no end. I have refer- ence to a conversation that Berns had with Habig about the "major-medical" and certain grievances that had been filed about two employees. According to the record all that Berns did was to suggest to Habig that he think over the Respondent's refusal to include the "major-medical" in the agreement between the parties from a human and charitable viewpoint and to be a bit compassionate toward the employees, espe- cially since the plan was in effect in all of the other plants of the Jasper Corpora- tion, the parent Company of the Respondent herein, to which Habig replied that "he would think it over." Though the record is somewhat confused as to just what the Respondent did regarding Berns' suggestion, there is evidence to the effect that it rejected Berns' suggestion that it be a bit compassionate toward employees in this respect and notified a member of the Union's negotiating team to that effect. In any event the Union went along with the Respondent's position regarding "major- medical" and did not include it in the agreement drafted by Mofield on September 13, 1962, which was mailed to the Respondent on or about September 15, 1962.19 Berns further testified, in substance, that he mentioned the grievances regarding two employees to the representatives of the Respondent at about the same time he brought up the "major-medical" with Habig, and at that time he assured them that the Union would not let the disposition of the grievances "stand-in-the-way," so to speak, with signing the agreement reached between the parties. In addition he told them that the Union would drop the grievance as to the male employee, because it had been misinformed as to his difficulties with the Respondent. As to the female involved who at the time was pregnant, he urged them to take another look at her case, and be a bit compassionate about her grievance. At this point I desire to point out that the question about the "Termination Clause" in the original proposal of the Union on July 18, 1962, was neither mentioned nor discussed at the meeting on August 28, 1962. As to the Respondent's August 5 proposal, "Exhibit No. 8," (which was the "guide" line at the August 28th meeting) regarding the 5-percent wage increase retroactive to August 20, 1962, this question will be discussed and disposed of below. Suffice it to say at this point that from what I glean from the testimony of Mofield and Berns, this issue was not discussed at the August 28, 1962, meeting and did not become a matter of dispute until the October 1, 1962, meeting of which more later. The position of the Union at the close of the August 28, 1962, meeting is best summed up in the following excerpt from Berns' testimony: Now, at the end of that meeting, and as Mr. Mofield stated, there was no question but what we had arrived at an agreement. And we told the Company that we were going to put this thing to a meeting of the people, and we hoped that after this meeting the people would show up to work, and they would know that we got an agreement, we was successful; and we were going to do everything in our power to recommend it. Now, at the time, as the meeting was breaking up, I believe I talked to Mr. Habig and asked him to take a second look at the Company's decision on the major medical rider. I told him, "We have a contract; we're not going to hold up on it." But these people feel-inevitably the feeling is going to be that they are discriminated against, in this plant, because this plant of all of the plants owned by this holding corporation is the only plant in which the major medical rider is being taken away. And up to this point they have enjoyed it. So they're going to feel some hostility. 18 For clarification of quotes see supra. 19 See General Counsel's Exhibit No. 10. CABINET MANUFACTURING CORPORATION 855 I asked him, therefore, to take-to think about it and he said he would The arrangement was that Mr. Kuper, I believe, was going to call the Union- I'm not too sure whether he was to call Bahu, or whoever it was-and let us know, and let the Union know what the Company's decision was to be. But I emphasize that there was the point made that we had an agreement, we were asking for this consideration by the Company, and what they did, we were going to go by. And that was the end of that meeting. After that we had a meeting with the employees, which we had considerable heat, and got ratification. TRIAL EXAMINER: Got what? The WITNESS: Got ratification. TRIAL EXAMINER: They accepted? The WITNESS: After considerable delay, yes, sir. By Mr. LIEBMAN: Q. When was this ratification meeting held? A. I believe it was two nights later. Q. Were you present at this meeting? A. Yes, I was. Q. Did you speak at the meeting? A. Quite a bit. As indicated in the foregoing excerpt from Berns' testimony the employees ratified the agreement reached by the parties at a meeting held on August 30, 1962. As indicated above Mofield drafted up the agreement that the parties had reached at the August 28, 1962, meeting and mailed it to Kuper. His accompanying letter follows below: 20 Mr. MAURICE R. KUPER, Vice President, Contract Division, the Jasper Corp., Cabinet Manufacturing Company, 416 N. Seventh Avenue, Evansville, Indiana SEPT. 13, 1962. DEAR MR. KUPER: Enclosed is a copy of the contract that we have agreed upon-according to the best of my understanding. We desire to meet with you at the earliest date possible in order that we may sign the contracts. Please advise me when you can meet with us. With my best wishes please permit me to remain Yours very truly, JM/rw cc: Mr. Arthur C. Nordhoff. Mr. Edward Windes. (S) John Mofield, JOHN MOFIELD, Assistant Business Representative. That the Respondent received the agreement drafted by Mofield is evidenced by the following letter from its counsel, Arthur C. Nordhoff, which likewise is set forth herein below: Arthur C. Nordhoff Clemence A. Nordhoff LAW OFFICES OF NORDHOFF & NORDHOFF 202-203 Kuebler Bldg., Jasper, Indiana Telephone 10 Re: CMC Contract Mr. JOHN MOFIELD, Teamsters Local 215-216 North Fulton Avenue, Evansville, Indiana. SEPTEMBER 17, 1962. DEAR JOHN: This is to acknowledge receipt of the copy of the contract on Saturday. 20 It is to be noticed that a copy of the letter was mailed to Edward Windes, the Federal mediator. 856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I called Mr. Kuper this morning, and we have made arrangements to review the contract as submitted. As soon as,this review is made, we will contact you. Very truly yours, NORDHOFF & NORDHOFF, (S) Arthur C. Nordhoff, ARTHUR C. NORDHOFF. ACN: jk cc- Mr. Tom Habig. Mr. Maurice Kuper. Let us now look at the Respondent's version as to what transpired at the meeting of August 28, 1962. The only witness offered by the Respondent in support of its defense-in-chief was Maurice Kuper, one of its vice presidents, whom the record shows was on its negotiating "team" at all times material herein, and was present at all of the meetings between the parties with which we are concerned in this proceeding. Kuper's testimony regarding what transpired at the meetings between the parties has, quite frankly, perturbed me no end. Let us look at his testimony on direct examination about what transpired at the August 28, 1962, meeting. Q. Now, at the August 28th meeting what was the discussion, if any, with respect to the major medical provisions, or the proposals? A. The Union left the meeting with the impression, leaving us-telling us that they would not sign the contract without major medical. Q. And what was the Union's position in that regard other than the fact that they would not sign it without major medical? A. They simply said they had to have the major medical because it was something that the people were presently enjoying. TRIAL EXAMINER: In other words, you already had a medical plan. The WITNESS: It had been in existence at the time of negotiations, yes. TRIAL EXAMINER: All right. By Mr. HAHN: Q. Now, was there discussion at that time with respect to the agency shop provision? A. The Union said that they had to have a modified agency shop. Q. And was there a conclusion reached in that regard at the meeting? A. No. Q. Was there any agreement with respect to the agency shop provision at that meeting? A. Definitely not. Q. Was there any agreement on the major medical provision at that meeting? A. No. Q. What was the discussion, if any, with respect to the checkoff? A. The Union claimed that they had to have checkoff. Q. Was there any agreement on the checkoff at that meeting? A. Definitely not. Q. Was there a discussion with respect to grievances at that meeting? A. Yes. The Union said that two grievances had to be settled. One was a Muehlbeier, we had to hire him back; and one was a Lois Hibner, who they claimed we would have to pay $200.00 to and hire her back. Q. Was that problem resolved at that meeting? A. It definitely was not. Q. Has it been resolved to this date? A. No. Q. Are those grievances outstanding to your knowledge at the present time? A. To the best of my knowledge, I imagine they're still outstanding. Q. What was the-What provisions, if any, were made for future meetings at that time? A. There was no provision made for another meeting. When the foregoing excerpt from Kuper's testimony is considered in the light of the plain language of the Union's draft of the "Agreement" dated September 13, 1962, which was mailed to Kuper, himself, by Mofield, on September 13, 1962, and received by him in due course as is evidenced by the letter from Nordhoff to Mofield dated September 17, 1962, then even a cursory examination by a naivete in such matters of the plain language in the agreement drafted by Mofield (Gen- eral Counsel's Exhibit No. 10) would reveal the falsity of Kuper's testimony in this regard. While the record shows that he changed his testimony about certain of the items that the Union originally requested, such as the agency shop and the CABINET MANUFACTURING CORPORATION 857 like on cross -examination, nevertheless , after long and careful consideration, I accept Mofield's and Berns ' account of what transpired at the August 28, 1962, meeting, and discredit that of Kuper. Both Mofield and Berns impressed me as honest and forthright witnesses , Kuper for reasons pointed out above, and for the further reason that he was evasive and reluctant at times when queried on cross- examination , did not so impress me. In the circumstances I find that the parties herein reached an agreement upon all items discussed and bargained upon at the August 28 , 1962, meeting; and that the agreement reached is embodied in the con- tract submitted to the Respondent on September 13, 1962, by Mofield, General Counsel's Exhibit No. 10. The parties next met on October 1, 1962 Like the previous meetings it too was held in the offices of Edward Windes, the Federal conciliator . The Union was represented by Mofield and Clifford K. Arden, the president of Local 215. The Respondent's representatives were Nordhoff and Kuper . Habig, who ordinarily participated in the hearings , as the "Captain of the Team" for the Respondent, was ill and unable to attend this meeting ?' The importance of this observation will be apparent below. It is also to be noted that Arden, president of Local 215, was present. This was the first and only meeting, insofar as the record herein is con- cerned, that he attended during the months that the parties had been negotiating for a contract The record shows that Arden attended the meeting for the primary purpose of signing the August 28 , 1962, agreement with the Respondent , which the employees in the appropriate unit had ratified on August 30, 1962. As indicated above, under the Union's rules and regulations only he, as president of the local, could sign an agreement on behalf of the local and the International Union. The meeting of October 1, 1962, was important for several reasons. In the first place what transpired at the onset of the meeting well illustrates the difficulties that the negotiators for the Union were faced with at all times material herein, in their efforts to secure an amicable solution to the issues we are faced with herein. The record clearly shows that the union negotiators , Arden and Mofield, went to the meeting with ,the impression that the parties were in full agreement regarding a contract . In addition the employees in the appropriate unit had approved and ratified the agreement reached by the parties at the August 28, 1962, meeting. That Arden and Mofield were dismayed at what transpired shortly after the meet- ing got under way is best told in the following excerpt from Mofield 's testimony which is fully credited: Q. Now, can you tell us what was discussed at this meeting, please? A. Yes. We went into the meeting , and Mr. Nordhoff and Mr. Kuper didn't want to discuss anything . They said there was nothing that could be discussed because Mr. Habig wasn't present in the meeting. And at that time Mr. Arden sort of hit the ceiling on the thing because Mr. Nordhoff being the leading counsel, Mr. Kuper conducting negotiations all through the contract , and he couldn't understand at that moment in that meeting only that they couldn't discuss the contract. And then their excuse at the time was Mr. Habig had a couple of areas in the contract that he wanted to discuss, and one was retroactivity. Wt couldn't get him to tell us what the other area was. [Emphasis supplied ] The Respondent's position on retroactivity was, in the final analysis , to the effect that it didn't want to g:i back to August 20, 1962, the date set forth in its "August 15, 1962 Proposal" (Exhibit No. 8), as the effective date of its 5-percent wage increase for .the reason that it was only a temporary gesture to avert a strike that was in the offing at the time it made the offer . When the issue was brought up by Nordhoff and Kuper at the meeting in question, Arden told them in no uncertain language that he on behalf of the Union would "-waive the retroactivity , and let's sign the agreement right now . And I presented it to him at that time again ." 22 As in- dicated, Arden at this point again handed the agreement drafted by Mofield on September 13, 1962 , to the Respondent's negotiators , Kuper and Nordhoff, and requested them to sign it, which they refused to do. One of the reasons they ad- vanced for their position in this regard was that Habig was ill , and that there was another issue which they refused to discuss or disclose at the time on account of Habig's absence. At this point I direct attention to the fact that at the meetings of August 21 and 28, the Respondent's proposal of August 15, 1962 (Exhibit No. 8), was used by the 21 Kupein the course of his testimony at the hearing herein referred to Habig as the "Captain of the Team " 22 Quotes from Arden 's credible testimony. 858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD parties as a "guide line," so to speak, in arriving at the "Agreement" which was reached at the end of the August 28, 1962, meeting. Moreover, at no time during the meetings of either August 21 or 28, was the retroactivity of the 5-percent wage increase to August 20, 1962, ever mentioned by the negotiators for the Respondent. In the circumstances Mofield's inclusion of this clause in his draft of September 13, 1962, is understandable. To be sure Kuper testified at considerable length at the hearing herein about the motive behind the Respondent' s inclusion of the retroactive provision in its proposal of August 15, 1962, and its reasons for "withdrawing" it after August 20, 1962, the effective date set forth therein. From his testimony in this regard, I am con- vinced and find that he had read the Union's proposal of September 13, 1962 (Gen- eral Counsel's Exhibit No. 10), and consequently was familiar with its contents. In such circumstances it is difficult to fathom the objective of his testimony on direct examination regarding the Union's position on such issues as the agency shop, checkoff, recommend, and the major medical plan, none of which are men- tioned or referred to in any way, shape, or form in Mofield's draft of Septem- ber 13, 1962. In such circumstances no conscientious trier of the facts could give credence to his testimony regarding the issues we are concerned with herein, for the simple reason that each and every issue that he referred to in the above excerpt from his testimony, had not only been abandoned by the Union at the meetings in which he personally participated, but are not even mentioned in the Union's proposal of September 13, 1962. In the circumstances, I credit the testi- mony of Mofield and Arden about what transpired at the meeting on October 3, 1962. Nothing of importance was accomplished at the meeting of October 1, 1962, insofar as the issues herein are concerned except the Union's abandonment of the retroactivity clause in the Respondent's wage offer of a 5-percent increase to its employees. Even so, the meeting of October 1, 1962, was of importance insofar as the issues herein are concerned because what transpired thereat was the motivating factor for the filing of the charge by the Union on October 3, 1962, upon which the com- plaint herein is predicated. The parties met again on October 10, 1962. Insofar as I am concerned this meeting like the previous meeting on October 3, 1962, was beset by another incident that illustrates the overall approach of the Respondent in its efforts to nullify the effect of the Board's certification of the Union as the collective-bargaining repre- sentative of its employees in the appropriate unit. This meeting like the previous meetings was held in the office of Edward Windes, conciliator for the Federal Mediation Service. Mofield and one, Don Marks, from the Upholsterers Union, represented the Union, and Habig, Kuper and Nordhoff for the Respondent. The record clearly shows that Habig acted as spokesman for the Respondent. Habig at the onset of the meeting presented to the union negotiators a new proposal re- garding two matters, one of which had never been discussed at any of the previous meetings between the parties, namely, article XXII, termination, of which more later. The other proposal dealt with article XX, wages. Insofar as the latter is concerned, I am convinced and find, upon the record as a whole, that this proposal of the Respondent was nothing more than a bit of folderol and presented primarily to confuse the issues and to delay the execution of the agreement reached by the parties on August 28, 1962. His finding in this regard is predicated on the testimony of Mofield to the effect that it concerned matters that had already been disposed of at previous meetings . In any event, I see no necessity to dwell at length on the proposal in question for the reason that he considers it of unimportance in his ultimate disposal of the issues herein. The proposal about the "Termination Clause" is another matter and will be discussed and disposed of below. Let us first take a look at it, for the simple reason that it is to say the least most befuddling, so to speak, when considered in the light of what had transpired at previous meetings between the parties. ARTICLE XXII. TERMINATION THE TERM OF THIS AGREEMENT shall commence on the ------ day of __________, 1962, and shall terminate on the ------ day of __________, 1963, and shall extend from year to year thereafter, unless: A. Either party elects to terminate or modify this agreement at the termina- tion thereof or at the termination of any extension thereof, in either of which events said party shall notify the other in writing of that intention not less than sixty (60) days prior to such termination date; or B. The Company elects at any time during the initial term thereof or at any time during any extended term thereof, in its sole discretion to cease operations at its Evansville, Indiana, plant, or at any other plant occupied by the Company CABINET MANUFACTURING CORPORATION 859 in which, event the Company shall notify the Union in writing not less than fifteen (15) days prior to the cessation of its operations, and thereupon this agreement shall cease and determine. The Company's exercise of its right and prerogative to elect to terminate its operations in the manner herein provided shall not in any event be subject to the grievance procedure nor to arbitration. IN WITNESS WHEREOF, the Parties hereto have hereunto affixed their hands and seals this ------ day of ----------, 1962. CABINET MANUFACTURING CHAUFFEURS, TEAMSTERS, WAREHOUSE- CORPORATION, MEN AND HELPER'S LOCAL UNION No. By -----------------------. 215, EVANSVILLE, INDIANA, AFFILIATED WITH THE INTERNATIONAL BROTHER- HOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, By --------------------------------- The "Termination Clause" in the Union's proposal of July 18, 1962 (General Counsel's Exhibit No. 4) is the same as set forth in the "Agreement" between the parties drafted by Mofield after the August 28, 1962, meeting and mailed to the Respondent on September 13, 1962 (General Counsel's Exhibit No. 10). It is inserted herein below by me for the benefit of all concerned so that a picture of this pestiferous issue may be had by a comparison of the termination clauses in the "Proposals" we are concerned with herein. ARTICLE XXII. Termination THIS AGREEMENT shall be in full force and effect from ----------, 1962, to and including ---------- 196 , and shall continue in full force and effect from year to year thereafter unless written notice of desire to change or modify this Agreement is severed by either party upon the other at least sixty (60) days prior to the annual date of expiration, and shall remain in full force and effect until superseded by a new Agreement. IN WITNESS WHEREOF, the Parties hereto hereunto affixed their hands and seals this ------ day of ---------- 1962. CABINET MANUFACTURING CHAUFFEURS, TEAMSTERS, WAREHOUSE- CORPORATION, MEN AND HELPERS LOCAL UNION No. By -----------------------. 215, EVANSVILLE, INDIANA, AFFILIATED WITH THE INTERNATIONAL BROTHER- HOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, By --------------------------------- According to Mofield's credible testimony the termination clause in the Union's contract proposal is the same that had been before the parties at all times material herein. Insofar as the record herein is concerned it had never been an issue at any of the meetings between the parties either before August 28, 1962, or thereafter, until Habig came up with it "out of the blue," so to speak, at the October 10, 1962, meeting. The proposal of the Respondent in this regard was to protect it in the event that it was forced to change its "cases" or "cabinets" to meet unanticipated com- petition that would require a change in its wage pattern to meet competition: In other words, if it was forced to meet or undersell its competitors prices, it could do so without delay by reducing the wages of its employees without consulting or bar- gaining with the Union, by the simple devise of canceling the contract forthwith whenever it chose to do so. In other words a contract with such a clause was mean- ingless-not even a gesture, but a "sham" on its face. In such circumstances no responsible labor organization (within the meaning of the Act) would agree to subject its "principal," that is, the employees in an appropriate unit, to such a condition of employment in a contract with their employer. In all of the circumstances discussed and described above regarding the October 10, 1962, meeting, I am convinced and find that the Respondent presented the pro- posals referred to above for the sole purpose of delaying the execution of an agree- ment with the Union, which was in line with its past conduct in this regard toward the efforts of the certified bargaining agent for its employees in the appropriate unit to reach an agreement that the parties "could live with," so to speak,23 and thus =3 Quotes from the record. 860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD attain or at least approach the stated purpose of the Act, "industrial peace," for not only those involved herein, but in the "public interest" as well. In passing, I desire to point out that while I have carefully considered the cogent reasoning in the well-drafted brief of counsel for the Respondent, I cannot in the final analysis thereof accept his position when considered in the light of the record as a whole for reasons which have been discussed and disposed of above. Concluding and Overall Findings In the final analysis we are concerned with but one issue in this proceeding to wit: Did the Respondent herein engage in conduct violative of Section 8(a) (5) and (1) of the Act by refusing to sign a contract with the Union that the parties had agreed upon at a meeting on August 28, 1962? I have found above that the negotiators for the Respondent , Habig, Kuper, and Nordhoff, had agreed to the terms of a contract with the Union at a meeting with the negotiators for the Union , Berns, Mofield, and the employee representatives, in the offices of Edward Windes, Federal conciliator , on August 28, 1962, and thereafter refuse to sign said agreement at a meeting between the parties on October 1, 1962. Upon these facts, I find that the Respondent herein engaged in conduct violative of Section 8 (a) (5) and ( I) of the Act. For reasons which I deem irrelevant to the issue herein, I see no necessity to cite cases ad infinitum in support of my conclusions and findings in this regard for the simple reason that the Supreme Court of the United States answered the question several years ago (January 6, 1941 ) in the case of H. J. Heinz Company v. N.L.R.B., 311 U.S. 514, in which it held inter alia as follows: Before the enactment of the National Labor Relations Act it had been the settled practice of the administrative agencies dealing with labor relations to treat the signing of a written contract embodying a wage and hour agreement as the final step in the bargaining process. Congress , in enacting the National Labor Relations Act, had before it the record of this experience , H. Rept. 1147, 74th Cong., 1st sess., p. 5, and see also pp . 3, 7, 15-18, 20-22, 24; S. Rept. 573, 74th Cong., 1st sess., pp. 2, 8, 9, 13, 15, 17. The House Committee recommended the legislation as "an amplification and clarification of the prin- ciples enacted into law by the Railway Labor Act and by § 7(a) of the Na- tional Industrial Recovery Act." H. Rept. 1147, supra, p. 3 and stated, page 7, that §§ 7 and 8 of the Act guaranteeing collective bargaining to employees was a reenactment of the like provision of § 7(a ) of the National Industrial Recovery Act, [48 Stat. 198] see Consolidated Edison Co. v. Labor Board, 305 U.S. 197, 236 [59 S. Ct. 206, 219, 83 L. Ed. 126]; Labor Board v. Sands Mfg. Co., 306 U.S. 332, 342 [59 S. Ct. 508, 513, 83 L. Ed. 682]. We think that Congress , in thus incorporating in the new legislation the collective bargaining requirement of the earlier statutes including as a part of it, the signed agreement long recognized under the earlier acts as the final step in the bargaining process. It is true that the National Labor Relations Act, while requiring the employer to bargain collectively, does not compel him to enter into an agreement . But it does not follow , as petitioner, argues, that, having reached an agreement , he can refuse to sign it, because he has never agreed to sign one . He may never have agreed to bargain but the statute requires him to do so. To that extent his freedom is restricted in order to secure the legislative objective of collective bargaining as the means of curtail- ing labor disputes affecting interstate commerce . The freedom of the em- ployer to refuse to make an agreement relates to its terms in matters of sub- stance and not, once it is reached, to its expression in a signed contract, the absence of which, as experience has shown, tends to frustrate the end sought by the requirement for collective bargaining. A business man who entered into negotiations with another for an agreement having numerous provisions, with the reservation that he would not reduce it to writing or sign it , could hardly be thought to have bargained in good faith. This is even more so in the case of an employer who, by his refusal to honor, with his signature, the agree- ment which he has made with a labor organization , discredits the organization, impairs the bargaining process and tends to frustrate the aim of the statute to secure industrial peace through collective bargaining. Petitioner's refusal to sign was a refusal to bargain collectively and an unfair labor practice defined by § 8(5). The Board's order requiring petitioner at the request of the Union to sign a written contract embodying agreed terms CABINET MANUFACTURING CORPORATION 861 is authorized by § 10(c). This is the conclusion which has been reached by five of the six courts of appeals which have passed upon the question. Affirmed. [Footnotes in quoted text not included] [Emphasis supplied.] As indicated above, I am convinced and find that the reasoning of the Supreme Court of the United States is applicable to the facts regarding the meetings between the parties, particularly the meeting of August 28, 1962. In the circumstances I further find that the policies of the Act can best be attained by reducing the agree- ment reached on August 28, 1962, including a further concession as to the abandon- ment of the previously agreed upon retroactivity of the 5-percent wage increase, made at the meeting between the parties at the meeting on October 1, 1962, by President Arden of Local 215, as an inducement to enhance the settlement of the issues be- tween the parties, be likewise included in said written agreement in the mode and manner described and set forth below in that section of this report entitled "The Remedy." IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The conduct of Respondent set forth in section III, above, occurring in connec- tion with the operations described in section I, above, has an intimate and substan- tial relation to trade, traffic, and commerce between the several States, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices it will be recommended that the Respondent be ordered to cease and desist there- from and to take certain affirmative action designed to effectuate the policies of the Act. By refusing to reduce to writing the agreement reached with Local 215 on August 28, 1962, and by refusing thus to sign the agreement reached with Local 215 on October 1, 1962. Considered together with the concession of President C. K. Arden of Local 215, to waive the retroactivity clause in article XX, subsection 2, of the Union's draft dated September 13, 1962, on that date the Respondent failed fully to perform its duty to bargain in good faith as required by the Act. It will therefore be recommended that, upon request of Local 215, the Respondent reduce to writing and sign the agreement of August 28, 1962, including the concession as to retroactivity made by President C. K. Arden of Local 215, at the October 1, 1962, meeting. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees at the Respondent's plant in Evans- ville, Indiana, exclusive of office clerical, plant clericals, foremen, guards, profes- sional employees, and supervisors as defined in the Act, constitute a unit appropri- ate for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 4. At all times since July 26, 1961, the Union has been the exclusive representa- tive, for the purposes of collective bargaining within the meaning of Section 9(a) of the Act, of all the employees in the aforesaid unit. 5. On August 28, 1962, the Respondent agreed with Local 215 to the terms and content of a collective-bargaining agreement. 6. By failing to reduce the terms of the August 28. 1962, meeting to writing and by refusing to sign the agreement of August 28, 1962. the Respondent has failed to bargain in good faith with the Union, and has thereby violated Section 8(a)(5) of the Act. 7. By refusing to bargain in good faith the Respondent has interfered with, re- strained. and coerced its employees in the exercise of the rights guaranteed them in Section 7 of the Act, and has thereby violated Section 8(a)(1) of the Act. 8 The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommended order omitted from publication 1