North Country Motors, Ltd.

NORTH COUNTRY MOTORS, LTD. 671 3. By operating an exclusive hiring system for the exclusive benefit of Local #84 members by placing only members' names on the register for referral and by clear- ing nonmembers and nonunion employees for employment only after all members were employed, by attempting to cause The Edward R. Hart Company to terminate the employment of Randall E. and John R. Lutz on January 2, 1963, in violation of Section 8(a) (3) of the Act, by refusing to refer John R . and Randall E. Lutz to work for The Edward R. Hart Company when requested to do so on or about November 5, 1962, because their brother had filed a charge against a sister local union, and by threatening John R . and Randall E. Lutz with continued loss of em- ployment in the Akron area unless they left their jobs with The Edward R. Hart Company because they were not members of Local # 84, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b) (1) (A) and (2) of the Act. 4. 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.] North Country Motors, Ltd. and Local 259, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW, AFL-CIO). Case No. 2-CA--8725. April 6, 1964 'DECISION AND ORDER On February 27, 1963, Trial Examiner Wellington A. Gillis issued his Intermediate Report in the above-entitled proceeding, recom- mending that the complaint be dismissed in its entirety, as set forth in the attached Intermediate Report. Thereafter, the General Coun- sel and the Charging Party filed exceptions to the Intermediate Re- port and supporting briefs, and the Respondent filed a brief in support of the Intermediate Report. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions, the briefs, and the entire record in the case, and finds merit in the Charging Party's and General Counsel's exceptions. Accordingly, the Board adopts the Trial Ex- aminer's findings only to the extent consistent with the following, but not his conclusions or recommendations. The facts may be briefly summarized. On or about November 16, 1960, 'a majority of the Respondent's employees in the appropriate bargaining unit' designated the Union as their bargaining agent. Subsequently, in a Decision and Order issued on October 27, 1961, in Case No. 2-CA-7696 (133 NLRB 1479) the Board found that the Respondent had engaged in various unfair labor practices, i All service shop employees , inclusive of mechanics , mechanics' helpers , partsmen, porters, and exclusive of salesmen , guards, watchmen , clerical employees , and all super- visory employees as defined in Section 2(11) of the Act. 146 NLRB No. 82. 744-670-65-vol. 146-44 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD including a violation of Section 8(a) (5) and, inter alia, ordered the Respondent to bargain collectively with the Union and embody any understanding reached in a signed agreement. Subsequently, in December 1961, the Respondent and the Union started negotiations. In late February 1962, the parties reached a tentative agreement. At that time, the Union's business agent, Diamond, informed the Respondent that the agreement was subject to ratification by the employees. After Respondent objected to this procedure, Diamond insisted that the procedure was required by the Union and Respondent finally agreed to wait andhear what Diamond had to say "based on the ratification." Diamond thereafter made two efforts to secure ratification, but the contract was rejected by the employees on both occasions, each time by a vote of 8 to 1. In March 1962, the Respondent, apparently in response to a de- mand by the Union that it execute the contract, informed the Union it would not do so until the agreement had been ratified by the employees. The parties subsequently entered into further negotiations and on April 20 again reached full agreement, which was reduced to writing but not then signed. It was to be effective for 1 year from December 1, 1961, to November 30, 1962, and from year to year thereafter subject to 60 days' notice. The written agreement, reached on April 20, made no express reference to any requirement of employee ratification. At the close of the meeting that day, however, Diamond assured the Respondent's officials that "this would be ratified by the members because this is what they told me they wanted." Later that day Diamond visited the shop and informed the em- ployees that there would be a ratification meeting on April 23 at the Union's office in New York City where on occasion prior meetings of members had been held. Only one employee, Phil Reshen, at- tended the meeting on April 23, and no vote was taken. Diamond rescheduled the meeting for a week later, April 30. He notified each of the employees by registered mail to that effect, urging them to attend to "act upon the last offer" of the Respondent. The meeting on April 30, like the earlier one, was held at the New York office of the Union. Again Reshen was the only employee who attended. After waiting a considerable length of time for others to arrive, Diamond discussed the agreement with Reshen, who then voted for acceptance of the agreement. On May 3 and again on May 25, the Union advised the Respondent, by letter, that the contract had been ratified and requested execution of the agreement reached on April 20. The Respondent refused to execute the contract, giving as its reason that it did not believe the contract had been properly ratified in that it had not been approved by,a majority of the employees in the unit. NORTH COUNTRY MOTORS, LTD. 673 On these facts the Trial Examiner concluded that the Respondent had not violated Section 8(a) (5) of the Act, as alleged in the com- plaint, by refusing on and after May 3, 1962, to execute the written collective-bargaining agreement. He found that the Union, having agreed to ratification, was estopped from insisting upon execution of the contract without proper ratification. As viewed by the Trial Examiner, the Union, "while technically complying with the letter of the Union's By-Laws" by the one-vote ratification,' was actually attempting "to circumvent the intent of its agreement with the Re- spondent" by relying on the vote it had conducted as satisfying the ratification prerequisite for a binding agreement. We do not agree. There is no probative evidence in the record that the Union had agreed that Respondent could condition execution of an agreement upon ratification of any sort, let alone by a majority or even a representative employee group. At the time Diamond in- sisted upon the necessity of ratification, he simply informed the Re- spondent's bargaining representatives that "this was the procedure which . . , our union called for." Further, it does not appear that the Union, either at that time or at any subsequent bargaining ses- sion, proposed doing more than was required by its constitution and bylaws. Thus, if there were any agreement on the part of the Union with respect to employee ratification, it could have extended no fur- ther than an undertaking on its part to comply with its internal union procedures and requirements relating to ratification. In addition, on the evidence before us we are unable to agree with the Trial Examiner that the Union failed to meet the requirement of ratification as a condition precedent to a binding agreement, assuming that it had undertaken to do so. Unlike the Trial Examiner, we find no substantial basis in the record for lightly brushing aside the Union's ratification action as merely a "technical compliance with the require- ments of the Union's by-laws." We are satisfied that-Diamond, the Union's representative, did all that was required under the Union's 2Article x(b) and (c) of the bylaws of Local 259 provides as follows: (b) After negotiations have been concluded with the employer, the proposed con- tract shall be submitted to the vote of the employees of the employer at a special meeting called for such purpose on due notice. (c) After approval by a majority vote of those present and voting at the meeting, the contract shall be referred to the Regional Director by the Local Union Article 19 , section 3 , of the constitution of the International Union provides in pertinent part: After negotiations have been concluded with the employer , the proposed contract or supplement shall be submitted to the vote of the Local Union membership . . . at a meeting called especially for such purpose ; should the proposed contract or supple- ment be approved by a majority vote of the Local Union or unit members present at the meeting , it shall be referred to the Regional Director for his recommendation to the International Executive Board for its approval or rejection. There is no provision in the constitution or bylaws as to the procedure to be followed in the event of a failure to ratify. 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bylaws, and more, to assure that the unit members had adequate notice of the ratification meeting and an opportunity to approve or disap- prove the contract which had been negotiated. Nor is there anything else in the record to suggest that the Union conducted the ratification vote other than in strict conformity with the applicable provisions of its bylaws. Moreover, we cannot agree with the suggestion of the Trial Examiner that the one-vote ratification was in conflict with the policies of the Act. The Act imposes no obligation upon a bargain- ing agent to obtain employee ratification of a contract it negotiates in their behalf. In a case such as this the requirement for ratification could only have been one which the Union itself assumed. It was thus for the Union, not for the Respondent, to construe the meaning of the Union's internal regulations relating to ratification. Whether the one-vote ratification in the circumstances here present was enough to satisfy the Union's bylaw requirement for "approval by a majority vote of those present and voting at the meeting" was a matter for the Union to decide, and not for the Respondent to challenge once assured by the Union that the latter's ratification requirements had been met. Accordingly, we find that the Respondent, by refusing on and after May 3, 1962, to execute the written agreement embodying the rates of pay, wages, hours of employment, and other conditions of em- ployment, as theretofore agreed upon between the aforesaid parties on April 20, 1962, failed to bargain collectively, as required in Section 8 (d) of the Act, with the Union as the representative of its employees in the appropriate unit, and thereby violated Section 8 (a) (5) and (1) of the Act. THE EFFECT OF TIIE UNFAIR LABOR PRACTICE UPON COMMERCE The conduct of the Respondent set forth above, which has been found to constitute unfair labor practices, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tends to lead to labor disputes hindering and obstructing commerce and the free flow of commerce. THE REMEDY Having found that the Respondent engaged in certain unfair labor practices, we shall order that it cease and desist therefrom and take certain affirmative action which we find necessary to effectuate the policies of the Act. We have found that the Respondent unlawfully refused to sign the contract to which it and the Respondent had agreed on April 20, 1962. The contract, as agreed to, contains an unlawful union-security clause. NORTH COUNTRY MOTORS, LTD. 675 We shall, therefore, order the Respondent, if the Union so requests, to sign the agreed-upon contract, but without the illegal union-security clause, effective until the next automatic renewal date, as set out in such contract, and we shall further order the Respondent, if so re- quested by the Union, to bargain with respect to a legal union-security clause. We shall further order that, if no such requests are made, the Respondent shall, upon request, bargain collectively with the Union as the exclusive bargaining representative of the employees in the appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement.' CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section2(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 service shop employees of the Respondent, inclusive of me- chanics, mechanics' helpers, partsmen, porters, and exclusive of sales- men, guards, watchmen, clerical employees, and all supervisors as defined in Section 2(11) of the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times material herein, the Union has been, and now is, the exclusive bargaining representative of the employees in the aforesaid unit within the meaning of Section 9 (a) of the Act. 5. By failing and refusing on or after May 3, 1962, to execute the written agreement with the Union embodying the wages, hours, and other terms and conditions of employment, as agreed upon on April 20, 1962, the Respondent has refused, and is refusing, to bargain collec- tively with the Union and thereby has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Sec- tion 8 (a) (5) of the Act. 6. By the conduct referred to in paragraph 5 above, the Respond- ent has also interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, its employees in the exercise of their rights guaranteed in Section 7 of the Act, and has thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) 'of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Warrensburg Board & Paper Corporation, 143 NLRB 398; WATE, Inc 132 NLRB 1338 676 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD ORDER Upon the entire record in the case, and pursuant to'Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent , 'North Country Motors, Ltd., its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively in good faith with Local 259, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW, AFL-CIO),' by refusing, upon request, to sign the collective-bargaining agreement embodying, except for the illegal union-security clause, wages , hours, and other terms and conditions of employment on which the Respondent and the Union had reached agreement on April 20, 1962. (b) In any like or related manner interfering with the efforts of said Union to bargain collectively on behalf of the employees in the appropriate unit. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) If requested by Local 259, International Union, United Auto- mobile, Aerospace and Agricultural Implement Workers of America (UAW, AFL-CIO), execute the contract embodying , except for the unlawful union-security provision, the wages, hours, and other terms and conditions of employment to which the Respondent and the Union had agreed on April 20, 1962, the aforesaid contract to be effective from December 1, 1961 , to the next renewal date as provided therein following signature ; and bargain with respect to a lawful union- security provision if so requested by the Union. (b) If no request is made as provided in paragraph 2(a) hereof, upon request, bargain collectively with Local 259, International Union, United Automobile , Aerospace and Agricultural Implement Workers of America (UAW, AFL-CIO), as the exclusive representa- tive of its employees in the appropriate unit described above with re- spect to wages, hours, and other terms and conditions of employment, and embody any understanding which may be reached in a signed agreement. (c) Post at its service shop copies of the attached notice marked "Appendix." 4 Copies of said notice, to be furnished by the Regional Director for the Second Region, shall , after being duly signed by a representative of the Respondent, be posted by the Respondent im- mediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places & 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." NORTH COUNTRY MOTORS, LTD. 677 where notices to its employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director foi the' Second Region, in writ- ing, within 10 days from the date of this Order, what steps the Re- spondent has taken to comply herewith. MEMBER LEEDOM took no part in the consideration of the above Decision and Order. APPENDIX NOTICE To ALL SERVICE SHOP EMPLOYEES OF NORTH COUNTRY MOTORS, LTD. Pursuant 'to a Decision and Order of the National Labor Rela- tions Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT refuse to bargain collectively in good faith with Local 259, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW, AFL- CIO), as the exclusive representative of our employees in the appropriate unit described below, by refusing to sign, if so requested by the Union, the written collective-bargaining agree- ment embodying, except for the illegal union-security clause, the wages, hours, and other terms and conditions of employment to which we agreed on or about April 20, 1962. WE WILL NOT in any like or related manner, interfere with the efforts of said Union to bargain collectively on behalf of the employees in the appropriate unit described below. WE WILL, if requested, by Local 259, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW, AFL-CIO), execute the contract on which we reached agreement with the said Union on or about April 20, 1962, without the unlawful union-security provision, to be effective from December 1, 1961, to the next renewal date provided therein, and bargain with respect to a lawful union- security provision, if so requested by the Union. WE WILL, if no request is made to sign the contract previously reached, bargain collectively, if requested, with Local 259, Inter- national Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW, AFL-CIO), as the ex- clusive representative of our employees in the approprite unit described below, with respect to all conditions of employment, and embody any understanding which may be reached in a signed agreement. 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The appropriate bargaining unit is : All our service shop employees, inclusive of mechanics, mechanics' helpers, partsmen, porters, and exclusive of sales- men, guards, watchmen, clerical employees, and all super- visors as defined in Section 2 (11) of the Act. NORTH CourrrRY MoToRs, LTD., 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, Fifth Floor, Squibb Building, 745 Fifth Avenue, New York, New York, Telephone No. 751-5500, if they have any questions con- cerning this notice or compliance with its provisions. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon a charge filed on July 2, 1962, by Local 259, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW, AFL-CIO), hereinafter referred to as the Union,' the General Counsel for the National Labor Relations Board issued a complaint on October 24, 1962, against North Country Motors, Ltd., hereinafter referred to as the Company or the Respond- ent, alleging that the Respondent, since on or about May 3, 1962, has refused to execute a written collective-bargaining contract, the terms of which had been agreed upon by the Union and the Company, in violation of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended ( 61 Stat. 136), hereinafter referred to as the Act. The Respondent thereafter filed a timely answer to the complaint denying the commission of any unfair labor practices. Thereafter, pursuant to notice, a hearing was held in New York, New York, before Trial Examiner Wellington A. Gillis, at which all parties were represented by counsel. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence pertinent to the issues, and to submit argument. Timely briefs were subsequently filed by the General Counsel and the Respondent. Upon the entire record in this case,2 and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT The Respondent, a New York corporation, maintaining its principal office and place of business at Great Neck, New York, is engaged in the sale, distribution, and servicing of new and used imported automobiles and related products . During the 12-month period immediately preceding the issuance of the complaint , the Respond- ent sold and distributed automobiles, automobile parts and accessories , and related products valued in excess of $500,000. During the same period, the Respondent purchased and caused to be transported and delivered to its New York place of business directly from points outside the State of New York, products valued in excess of $50,000. The parties agree, and I find, that the Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. I The name of the Union appears as amended at the hearing. 2 At the start of the hearing, a written stipulation entered into by all parties was re- ceived in evidence and made a part of the record , by which agreement paragraphs 1 through 10 of the complaint , as well as the authenticity of material correspondence between the parties, were admitted. NORTH COUNTRY MOTORS, LTD. II. THE LABOR ORGANIZATION INVOLVED 679 The parties agree, and I find, that Local 259, International Union, United Auto- mobile, Aerospace and Agricultural Implement Workers of America (UAW, AFL- CIO), is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The Issue The facts disclose, and it is not otherwise asserted, that at all times material to the refusal-to-bargain allegations a complete collective-bargaining contract had been reached and fully agreed upon by the Respondent and the union representatives. Accordingly, the matters in dispute revolve about the issue of: A. Whether, under the circumstances, the Respondent may insist upon employee ratification before executing an agreed-upon collective bargaining contract. B. Whether, assuming an affirmative determination of the above issue, the con- tract was in fact ratified by the Respondent's employees. The Facts On or about November 16, 1960, a majority of the Respondent's service shop em- ployees designated the Union as its collective-bargaining representative. Subsequent to the filing of unfair labor practice charges, which culminated in the Board's Deci- sion and Order on October 27, 1961, in Case No. 2-CA-7696,3 wherein the Re- spondent was found, inter alia, to have refused to bargain in good faith with the Union, the Respondent and the Union, commencing in December 1961, engaged in collective-bargaining negotiations. After a 2-month period of good faith and apparently amicable negotiating between the union representatives and the Com- pany,4 the parties, toward the latter part of February 1962,5 reached full agreement on all terms of a contract,,at which time Diamond apprised the company negotiating officials that "the tentative agreement that was reached was subject to ratification of the employees." 6 After Kulok registered his objections to sending the contract to the employees for their approval, Diamond told him that this procedure was required by the Union and reiterated his stand that "it would have to be ratified by the men." 7 The company officials then agreed to the ratification requirement and, while Kulok and Parauda, pursuant to Diamond's request, awaited the employee vote, Diamond held a meeting of the employees in the shop. After Diamond apprised the employees of the contract provisions, the nine unit employees, by an 8-to-1 vote, refused to ratify the agreement, which result was immediately communicated to the Respond- ent's officials. $ North Country Motors, Ltd., 133 NLRB 1479 *All contract negotiations were conducted by Ralph Diamond and Charles Reddeck, first vice president and recording secretary, respectively, of Local 259, neither of whom is an employee of the Employer, and Lawrence Kulok and Joseph R. Parauda, vice president and legal counsel , respectively, for the Company. s Unless otherwise noted, all dates refer to 1962. $ Other than where otherwise hereinafter indicated, quoted testimony is that of Diamond, the only witness called by the General Counsel 7 That Diamond's position with respect to employee ratification was sound is reflected in the following pertinent parts of certain provisions contained in the Union's regulatory document Thus, article 19, section 3, of the constitution of the International Union provides in part: After negotiations have been concluded with the employer, the proposed contract or supplement shall be submitted to the vote of the Local Union membership . . . at a meeting called especially for such purpose; should the proposed contract or supple- ment be approved by a majority vote of the Local Union or unit members present at the meeting, it shall be referred to the Regional Director for his recommendation to the International Executive Board for Its approval or rejection. Article X(b) 'and (c) of the' bylaws of Local 259 reads as follows * (b) After negotiations have been concluded with the employer, the proposed con- tract shall be submitted to the vote of the employees of the employer at a special meeting called for such purpose on due notice (c) After approval by a majority vote of'those present and voting at the meeting, the contract shall be referred to the Regional Director by the Local Union - 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A week or two later, Diamond, in a second attempt to secure employee ratifica- tion, called another meeting of the employees to be held at a nearby restaurant, at which meeting another vote was taken on the same contract without any changes, and at which the employees again voted 8 to I against its acceptance. After the negative vote was held, the employees made suggestions to Diamond concerning what additional terms would be necessary before an agreement would be acceptable. By letter dated March 23, 1962, the Respondent advised the Union that, as the em- ployees had on two occasions rejected the agreement negotiated by the Union and the Company, until such time as the employees ratified the latest agreement nego- tiated by the parties, the Company felt that it was under no obligation to sign a contract with the Union. According to Diamond, another bargaining session between the Union and the Company was thereafter scheduled for April 20, at which, after additional improve- ments offered by the Respondent were agreed upon, the parties once again reached full agreement on the terms of a bargaining contract, subject to ratification by the employees.e At the conclusion of this meeting, Diamond assured the company officials that "this would be ratified by the members because this is what they told me they wanted." Subsequent to the close of the meeting with the Respondent, Diamond visited the employees in the shop requesting their presence at a meeting the following Monday at the union office in New York City. At the Monday meet- ing, held on April 23, only one employee attended, namely one Phil Reshen, and no vote was taken. Diamond, on April 26, 1962, then notified all employees by regis- tered mail of a rescheduled meeting to be held on the following Monday, April 30, at the New York headquarters of the Union, urging each to attend to "act upon the last offer" made by the Company. At that meeting, again only Phil Reshen was present, and, after waiting for a considerable length of time, Diamond discussed the contract provisions with Reshen, at the conclusion of which Reshen "accepted the terms of the agreement." Thereafter, based upon this action by employee Reshen, Diamond by letters dated May 3 and 23, 1962, advised the Company that the contract had been ratified and requested the Respondent to forward to him 10 copies of the agreement for execution by the Union. By letter dated June 5, 1962, the Company acknowledged receipt of Diamond's letters and stated that, upon its information the contract had never been ratified by a majority of the service shop employees, that the employees had rejected the agreement by an 8-to-l vote, and that, accordingly, the Company could not comply with the Union's request for copies of the contract. Conclusions The complaint alleges and the General Counsel contends that, since May 3, 1962, by refusing to execute an agreement, the terms of which had been agreed upon, the Respondent refused to bargain in good faith within the meaning of Section 8(a) (5) of the Act.9 In support of its position, the General Counsel asserts'that (a) the Respondent cannot insist upon employee ratification of the contract as a condition precedent to its signing the agreement, (b) assuming a determination to the contrary, the contract was in fact accorded proper employee ratifiaation, and (c) in any event, once the Respondent received notification from the Union that 8 The 1-year contract, which recognizes the Union as the bargaining representative for the Respondent's "service shop employees inclusive of mechanics, mechanics helpers, parts- men, porters," contains a November 30, 1962, expiration date, with an automatic 60-day annual renewal clause Although in no way adverted to by the parties, a perusal of the contract provisions reflect the presence of a union-security clause, in part unlawful under the doctrine of Chun King Sales, Inc., 126 NLRB 851, 853, by uroviding that "All em- ployees employed by the Employer subject to this agieement shall be and remain members of the Union in good standing, as a term and condition of employment." [Emphasis sup- plied I The Chun King rationale, to the extent applicable here, is still adhered to by the Board, notwithstanding a partial overruling of that decision in New York State Electric & Gas Corporation, 135 NLRB 357. As this clause fails to provide a 30-day period after the execution of the contract for old employees to become members of the Union, and does not avail itself of the distinction drawn by the Board in Television and Radio Broad- casting Studio Employees, Local 804 (Radio and Television Division of Triangle Publica- tions, Inc, et at ), 135 NLRB 632, 634-635, it does not satisfy the requirements of a valid union-security clause prescribed by the proviso to Section 8(a) (3) of the Act. e The General Counsel does not contend that the Respondent's refusal to execute a con- tract at any time prior to May 3 (when the Union notified the Respondent that the con- tract had been ratified) constitutes a refusal to bargain. NORTH COUNTRY MOTORS, LTD. 681 the contract had been ratified, it was not within the province of the Respondent to question the propriety of the vote, such constituting an internal union matter and of no concern to the Respondent. In defense of the refusal-to-bargain allegations, the Respondent contends that (a) because the union representatives, and not the Respondent, conditioned the Union's acceptance of the agreement upon employee ratification, such constituting a condi- tion precedent, the Respondent is entitled to insist upon the condition being fulfilled before it is required to execute the contract, and (b) in view of the refusal of the employees to ratify the contract on two prior occasions, the fact that the employees, with one exception, refused to attend a third meeting called specifically for the purpose of conducting another ratification vote, reflects their continued disapproval of the terms of the contract, and, in effect, constitutes a rejection of the contract. As to the primary issue presented for resolution, it would appear that, under all of the circumstances, the Union here is estopped to assert that employee ratification of the contract is unnecessary and that the Respondent may not insist upon it as a condition precedent to its execution of the agreement. Thus, as contended by the Respondent and admitted by the Union, at no time during the course of bargaining negotiations did the Respondent raise the point calling for employee ratification of any agreement reached, but rather, as Diamond testified, it was he, on behalf of the Union, who, after concluding negotiations on the first agreement, apprised the Respondent of the Union's requirement that "the tentative agreement that was ratified was subject to ratification of the employees," and insisted, over Respondent's initial objections, that it would have to be ratified by the employees, with which request the Respondent finally acceded.10 The facts further disclose that it was not until the Union had attempted on two occasions, without success, to obtain the necessary ratification at meetings held locally and attended by all of the unit employees, that the Respondent insisted that the Union abide by that which it had exacted from the Respondent, namely, the agreement that employee ratification be accomplished before the tentative contract ripen into one binding upon the parties. That the Union continued to recognize the necessity of obtaining employee ratification is apparent from the fact that after the employees refused to ratify and the Union and the Respondent bargained further and again reached accord on contract terms on April 20, the Union scheduled two additional meetings for the sole purpose of securing ratification by Respondent's employees. Thus, unlike that involved in cases cited by the General Counsel in support of its position, where refusal-to-bargain violations by an employer, were predicated upon the employer's insistence, during bargaining negotiations and prior to reaching agreement on 'the terms of a contract, upon employee ratification of the agreement, either through an understanding of the parties or by including a provision in the contract to that effect,ti the facts here reveal that: (a) the Respondent at no time during the bargaining insisted upon employee ratification and that such an agreement played no part in the contract negotiations, (b) the union representatives, after the contract terms had been fully agreed upon, raised the requirement and insisted that the Respondent agree that employee ratification be made a condition precedent, and (c) pursuant to such agreement, the Respondent thereafter merely insisted upon the fulfillment of the condition imposed by the Union, as required by its bylaws.12 Accordingly, as the legal principles and Board rationale of such cases clearly are not applicable to the facts dispositive of the issue here, I find the General Counsel's position untenable and conclude, under the circumstances, that the Respondent's refusal to execute the tentative contract until such time as the employees ratified its terms does not constitute a refusal to bargain in good faith. Having found that the Respondent was entitled to insist upon employee action ratifying the contract, the final question for determination is whether the contract was in fact ratified by Respondent's employees. While the record does not reflect specifically what contract terms of the earlier agreement had not been satisfactory to the employees or the extent to which further concessions by the Company would have met with their approval, an inference to be drawn from the facts is that the employees were made aware, at least generally, of the most recent concessionary contract changes agreed to by the Company on April 20, that the changes were 10 In fact, there is no indication that at that time, the Respondent was not prepared and willing to sign the contract, the terms of which had been reached by the negotiating parties. n N L R.B. v Wooster Division of Borg Warner Corporation , 365 U S. 342; Union Manufacturing Company, Inc., 27 NLRB 1300: Allis-Chalmers Manufacturing Company, 106 NLRB 939: and Darlington Veneer Company, Inc, 113 NLRB 1101 12 See The Fort Industry Company, 77 NLRB 1287, 1300 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 'not such as to meet with the approval of the employees or to change their previous rejection of the contract, and that, for this reason, with the exception of Reshen, the employees did not attend either of the two meetings in New York City. In this regard, three of the nine unit employees testified in this proceeding. Vincent Zacke testified that, based upon talk around the shop, including several informal meetings of the employees, he felt that "they have gotten nowhere and everything was basically the same," and that he did not attend the April 30 meeting in New York City "basically because the contracts that we were discussing were all the same and I had no ... I didn't want any of it...." Frank Hirth testified that Diamond had told the employees in the shop of some changes having been made after the first vote, that he had told Diamond that he was not interested in the terms Diamond had secured from the Company, and that he did not attend the April 30 meeting because he did not see any sense in going to the meeting and again voting against ratifying the contract. Oswald Lauwers testified that he did not attend the April 30 meeting because he "figured it was turned down" and did not want to spend the money traveling to New York City. A further inference to be drawn from the facts is that the Union, and more specifically, Diamond, was aware that the employees generally did not want the con- tract, for, were it otherwise, Diamond (a) either before or at any time after the April 23 employee meeting at which only one employee attended, could readily have scheduled the second ratification meeting for the shop or nearby restaurant, as he had done in the past, rather than putting the employees to the inconvenience of traveling all the way into New York City for such meeting; and (b) even after the second failure to get more than one employee to attend a ratification meeting at the Union's New York City headquarters, could have scheduled another meeting close by the employee's work to secure the favorable ratification vote, thus avoiding the necessity of filing unfair practice charges and proceeding with time-consuming Board litigation. Thus, we are confronted with the situation of determining the effect of an affirmative ratification "vote" by one employee at a meeting where the remaining eight unit employees, all of whom had previously rejected earlier contract terms, deliberately refused to attend. The Union's reliance on Reshen's "vote" as valid ratification action by the employees, while technically complying with the letter of the Union's bylaws, constitutes, in my opinion, an attempt to circumvent the intent of its, agreement with the. Respondent, and to accomplish that which it was unable to do lawfully. Apart from the requirement of the Union's bylaws, it is my opinion that the Respondent , tinder its agreement imposed by the Union, is entitled to a representative vote of its employees.13 A procedure whereby one employee merely agrees to accept the terms of a contract is hardly a "vote of the employees," as contemplated by the parties at the time that it was agreed that employee ratification was necessary before a contract would become binding.14 Under all the circumstances, to sanction this action,as an effective ratification procedure is to foist upon the Re- spondent's employees a contract, an unlawful one at that, which the employees do not want. Such is hardly consistent with Board's mandate to effectuate the policies of the Act.15 For the above reasons, and based upon the record as a whole, I find that the con- tract was not ratified by the Respondent's employees in a manner contemplated by the parties, and that, as the condition precedent to a binding contract had not been fulfilled, the Respondent was under no obligation to execute a contract with the Union. Accordingly, I find and conclude that the General Counsel has failed to prove by a preponderance of the evidence that the Respondent refused to bargain in good faith with the Union within the meaning of Section 8(a) (5) of the Act. is Analogizing this to an election to determine union representation under Board auspices, it is fair to say that, under these circumstances, the Board would hold such a vote to be not representative, and would refuse to accord such vote that which the Union here asserts. 14 Nor do I find merit to the General Counsel's assertion that it was not within the province of the Respondent to question the propriety of the vote. Based upon the agree- ment of the parties that employee ratification was necessary to a binding contract, the Respondent. having been apprised of the prior rejections of the earlier contract, was entitled to some indication, other than the mere statement by Diamond, that the condition precedent had been fulfilled 15 Certainly, in a hypothetical reversal of the instant refusal-to-bargain situation, a union charged by an employer with a refusal to execute a contract would have a valid de- fense based upon the fact that only one of nine unit employees voted for ratification. HARVEY PROBBER, INC. 683 Upon the basis of the foregoing findings of fact, and upon the entire record in this case, I make ;the following: CONCLUSIONS OF LAW 1. North Country Motors, Ltd., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 259, International Union, United Automobile, Aerospace and Agri- cultural Implement Workers of America (UAW, AFL-CIO), is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent has not engaged in any unfair labor practices as alleged in the complaint. RECOMMENDED ORDER It is hereby recommended that the complaint be dismissed in its entirety. Harvey Probber, Inc. and United Furniture Workers of America, AFL-CIO. Case No. 1-C.A-41392. April 6, 1964 DECISION AND ORDER On November 7, 1963, Trial Examiner James V. Constantine issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Decision. Thereafter, the Respondent filed exceptions to the Decision and a supporting brief. Pursuant to the provisions of Section 00(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Fanning and Jenkins]. 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 Decision, the exceptions and the brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER The Board adopts as its Order the Recommended Order 1 of the Trial Examiner.' I The Recommended Order Is hereby amended by substituting for the first paragraph therein the following paragraph: 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 Respondent, Harvey Probber , Inc., its officers , agents , successors, and assigns, shall: 2 Amend the notice to all employees by changing the first sentence below the signature line to read : "This notice must remain posted for 60 consecutive days from the date of posting . . . 146 NLRB No. 84.