Independent Stave Co, Inc.

INDEPENDENT STAVE COMPANY, INC. 431 APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify you that: WE WILL NOT interrogate our employees as to their union activities, or the union activities of their fellow employees. WE WILL NOT make statements to our employees that might reasonably be construed to mean that the union activities of our employees are or were under surveillance by us. WE WILL NOT ask our employees to find some excuse for discharging some other employee because of the latter's union activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Cleaning and Laundry Workers Union, Local 457, Amalgamated Clothing Workers of America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choos- ing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. All our employees are free to become or remain, or to refrain from becoming or remaining, members of Cleaning and Laundry Workers Union, Local 457, Amaly°-a- mated Clothing Workers of America, AFL-CIO, or any other labor organization Cy TANNER D/B/A TANNER'S CLEANERS, 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, Sixth Floor. 707 North Calvert Street, Baltimore, Maryland, Telephone No. 752-8460, Extension 2100, if they have any question concerning this notice or compliance with its provisions Independent Stave Company, Inc. and Coopers International Union of North America, AFL-CIO and Local 42 of Coopers International Union of North America, AFL-CIO. Case No. 17-CA-2278. August 25, 1964 DECISION AND ORDER On May 8, 1964, Trial Examiner George J. Bott issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices violative of Section 8(a) (5) and (1) of the Act and recommending that it cease and desist therefrom and take certain affirmative action as set forth in the attached Decision. Thereafter,.the General Counsel and Respond- ent filed exceptions to the Trial Examiner's Decision and supporting briefs. Pursuant' to the provisi ohs .of Section 3(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 Mem- bers Fanning and Jen'kins].' % i i. 148 NLRB No. 49. 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds no prejudicial error was committed. The rul- ings are hereby affirmed. The Board has considered the Trial Ex- aminer's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner with the additions noted herein. TTTE REMEDY Having found that Respondent has engaged in certain unfair labor practices violative of Section 8(a) (5) and (1) of the Act, we shall order that it cease and desist therefrom and that it take certain af- firmative action designed to effectuate the policies of the Act. In ad- dition to the Order recommended by the Trial Examiner, we shall order Respondent to cease and desist from performing or giving effect to its agreement of July 18, 1963, with Local 42, provided, however, that nothing in this Order shall be construed to require Respondent to vary or abandon any existing term or condition of employment. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the Board hereby adopts as its Order, the Order recom- mended by the Trial Examiner and orders that Respondent, its of- ficers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order as well as the additional action set forth below in a new paragraph lettered 1(b) . The present paragraph 1(b) in the Trial Examiner's Recommended Order shall be relettered 1(c) . The Respondent shall post the revised notice at- tached hereto as Appendix A. (b) Performing or giving effect to its agreement of July 18, 1963, with Local 42 of Coopers International Union of North America, AFL-CIO; provided, however, that nothing herein shall require the Respondent to vary or abandon any wage, hour, seniority, or other substantive feature of its relations with its employees which the Respondent has established in the perform- ance of this agreement or to prejudice the assertion by the em- ployees of any rights acquired thereunder. APPENDIX A 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 bargain collectively in good faith with Coopers Inter- national Union of North America, AFL-CIO, as the exclusive rep- INDEPENDENT STAVE COMPANY,* INC. 433 resentative of all employees in the bargaining unit described below with respect to rates of pay, hours of employment, and other con-_ ditions of employment, and, if an understanding is 'reached, we will embody such understanding in a signed contract. The bar- gaining unit is: All plant employees handling cooperage, excluding all, green mill employees, office clerical employees, professional employees, watchmen, guards, and supervisors as defined in the Act. ZEE WILL NOT perform or give effect to our agreement of July 18, 1963, with Local 42 of Coopers International Union of North America, AFL-CIO ; provided, however, that nothing herein shall require us to vary or abandon any wage, hour, seniority, or other substantive feature of our relations with our employees which we have established in the performance of this agreement, or to prej- udice the assertion by employees of any rights they acquired thereunder. WAVE WILL NOT in any like or related manner interfere with, re- strain, or coerce employees in the exercise of rights guaranteed them in Section 7 of the Act, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Sec- tion 8(a) (3) of the Act as modified by the Labor-Management Reporting and Disclosure Act of 1959. INDEPENDENT STAVE COMPANY, INC., 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, 1200 Rialto Building, 906 Grand Avenue, Kansas City, Mis- souri, Telephone No. Baltimore 1-7000, Extension 731, if they have any question concerning this notice or compliance with its provisions. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge of unfair labor practices filed on August 23, 1963, by Coopers International Union of North America, AFL-CIO, herein sometimes called the Union, against Independent Stave Company, Inc., herein called Respondent or Com- pany, the General Counsel of the National Labor Relations Board issued a com- plaint and notice of hearing dated October 11, 1963, alleging that Respondent had engaged in unfair labor practices in violation of Section 8(a)(1) and (5) of the 760-577-65-vol. 148-29 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD National Labor Relations Act, herein called the Act. Respondent filed an answer admitting certain allegations of the complaint but denying the commission of any unfair labor practices. Pursuant to notice a hearing was held before Trial Examiner George J. Bott at Lebanon, Missouri, on November 14, 1963. The General Coun- sel, Respondent, and the Charging Party were represented at the hearing., Sub- sequent to the hearing the General Counsel and the Union filed briefs and the Re- spondent filed proposed findings of fact and conclusions of law. All of these have been considered and the proposed findings and conclusions are disposed of in accord with my findings and conclusions herein. Upon the entire record and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS Respondent is a corporation with its principal place of business in Lebanon, Missouri, where it is engaged in the manufacture of barrels . In the course and con- duct of its business, Respondent annually ships goods and products valued in ex- ces of $50,000 to customers outside of Missouri , and annually purchases goods and materials valued in excess of $50,000 from sources outside Missouri. Respondent concedes, and I find, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. H. THE LABOR ORGANIZATION INVOLVED The Union and its Local 42 are labor organizations within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The refusal to bargain collectively with the Union 1. The facts The Union was certified by the Board on September 15, 1955, as the. representative of all of Respondent's plant employees handling cooperage, excluding all green mill employees, office clerical employees, professional and technical employees, watch- men, guards, and supervisors as defined in the Act. There has been no subsequent certification of any other labor organization, and ever since the certification the Union has been the duly certified collective-bargaining representative of all employ- ees in the unit. At all times since its certification in 1955, the Union has negotiated with Respondent about wages, hours, and working conditions bf employees in the unit, and Local 42 of the Union (herein referred to as Local 42) has participated in the negotiations. On June 26, 1963, Respondent met with Local 42 officers and George Calvert, fourth vice president of the International Union, to negotiate a new contract. Calvert testified, and I credit his testimony, that during the June 26 meeting at which he was the principal spokesman for the employees, the parties went through the pro- posals which the Union had presented to the Company. These proposals had been prepared and agreed upon previously by Calvert and Local 42. No agreement was reached at the June 26 meeting. A second bargaining session was held on July 11, at which time Calvert and Souders, attorney for the Union, were principal spokesmen for the employees in the negotiations. Local 42 officers also attended this meeting as they had the June 26 meeting, but James Boswell, president of Respondent who was present at the first meeting did not attend. The Company was represented by Robert Don- nelly, its attorney. The Union's proposals were again reviewed, but no agreement was reached. At the conclusion of the July 11 bargaining conference, Souders, union attorney, asked to meet the next morning to keep negotiations going toward a conclusion. Attorney Donnelly said it would be necessary for him to consult Boswell, company president, about the money items in the proposals and have their actual cost com- puted: He said therefore he could not meet the next day to discuss anything in- volving money and, if the group insisted on meeting on such items, he would have to refuse. He added, however, that he could meet for 2 hours the next morning 'Local 42 did not enter an appearance, but Dean Rhoten and Emory•Savage, president and recording secretary of the Local, and Ray Thompson, shop steward, testified INDEPENDENT STAVE COMPANY, INC. 435 to discuss nonmonetary clauses, such as seniority and the like . It was agreed to meet as suggested with the understanding that only nonmonetary items would be discussed. Sometime before the scheduled meeting of July 12 , Local 42's bargaining commit- tee met with Calvert and told him that the committee wanted to negotiate something less in wage increases than had been proposed to the Company in the earlier meet- ings. The local committee's proposal which it wanted to submit to the Company had been previously submitted to the International Union's executive board and rejected. Calvert was then sent to assist the Local in negotiations and in drawing a new set of proposals. After consulting with the Union's president by telephone, Calvert told the committee that he would not assist them in negotiations and would not attend the meeting that morning. He asked the committee to so inform the Company.- The July 12 meeting with Respondent was attended only by officers of Local 42. Dean Rhoten, president of the Local and an employee of the Company, seems to have been the principal spokesman for the group. Rhoten testified that he told the Company's representatives that Calvert would not attend the meeting and the local group was representing Local 42. Emory Savage, recording secretary of the Local, testified without contradiction that Respondent 's president, James Boswell, asked where Calvert was and that Rhoten said there had been a disagreement be- tween the Local and the International and he would not attend. According to Savage, Rhoten added that the Company was not dealing with the International but with the Local, and Boswell responded that such an arrangement was "fine with him. " During the July 12 meeting, Respondent made what it described as a "final offer" to the officers of Local 42. This offer covered monetary as well as nonmonetary items. The parties negotiated all day and again on Saturday morning, the 13th. On Monday, July 15, Respondent, by letter, gave Local 42 until July 18 to accept or reject its "final offer," which it stated became "void" if not accepted before then. Attached to the letter was a copy of the offer. Respondent did not send a copy of the letter or the offer to the International Union. On July 16, the Union sent a telegram to Respondent 's president, James Boswell, Respondent's counsel, Robert Donnelly, and Local 42's president, Dean Rhoten, advising that under the International 's constitution "no collective bargaining agree- ment between Independent Stave and Local 42 can be entered into binding and effec- tive until the terms are first approved by majority of International Executive Board." After Rhoten received his copy of the Union's telegram, he discussed it with Com- pany Attorney Donnelly. He testified that Donnelly "suggested that we go ahead,and sign the contract because George Calvert had walked out, [he] thought it would be legal for us to sign a contract . . . because Calvert had walked out of the negotia- tions." On July 18, 1963, Rhoten and other officers of Local 42 signed a labor contract with Respondent. The contract had a space for Vice President Calvert's signature, but he never executed the document. When ,the contract had been executed, Respondent asked the local officers to present it to the International Union. Rhoten presented the agreement to Calvert and Ernest Higdon, first vice president of the Union, on July 21 or 22, and this was the first time that union officials were made aware that the contract had been executed. Calvert refused to sign the agreement, stating that it was unacceptable to him, but that he would forward it to the International Union, which he did. The executive board of the Umon voted to reject the agreement negotiated by the officers of Local 42 and, on August 1, 1963, James Doyle, president of the Union, notified the Respondent to that effect. In his letter to the Company, Doyle, on behalf of the Union, asked that the "Company meet with its representatives for the purpose of resumption of negotiations for a collective bargaining agreement covering" the Respondent's employees. Respondent's president, James Boswell, directed Attorney Donnelly to reply to the Union's request for bargaining, and Donnelly did so by mail on August 6. In his letter Attorney Donnelly stated that Union Representative Calvert had refused to be present at the July 12 bargaining session and that the Company had negotiated with "those present" upon their demand. Donnelly concluded by stating that "The Com- pany considers the actions of Mr. Calvert outlined above a refusal to bargain, and, therefore, an unfair labor practice. Under the circumstances, we regard your demand that bargaining sessions be resumed as completely unreasonable." The letter was the only company response to the Union's demand. I find that Respondent by this letter refused to meet with the Union as requested. 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Vice President Calvert also testified, and I credit him, that he and Union Attorney Souders went to the Company's office, on August 7 in an attempt to arrange a meeting with President Boswell. The Company's receptionist told the visitors that Boswell could not see them that morning. The men inquired if Boswell would see them that afternoon, and were told that Boswell was busy that afternoon. They then asked if they could come back the following morning, but were told that "Mr. Boswell will not see you at all." 2 I find on the basis of this evidence that Respondent refused to meet with the Union as requested. On or about August 5, 1963, the Union advised Dean Rhoten, president of Local 42, by telegram, that the Local was placed under trusteeship, effective immediately, and that Vice President Calvert had been appointed trustee to administer the affairs of Local 42. There is no dispute about the unit in the case, and Respondent does not question the majority status of the Union. 2. Analysis and conclusions General Counsel contends that Respondent, by its conduct in meeting with Local 42, signing a contract with it, and thereafter refusing to negotiate with the Union upon request, violated Section 8(a) (1) and (5) of the Act. Respondent argues, on the other hand, that the International Union's constitution establishes the right of Local 42 to enter into agreements; that officers of Local 42 were acting within the scope of their authority when they negotiated the July 18, 1963, agreement and that the Union is bound by its terms; that Respondent, having negotiated and signed an agree- ment with the duly authorized agent of the Union, could not, therefore, have refused to bargain in violation of Section 8(a) (1) and (5) of the Act. In considering the legal effect of Respondent's action in continuing negotiations with Local 42 and executing a contract with it, in the circumstance herein, it must first be kept in mind that the International Union, not the Local, is the statutory rep- resentative of the employees in the unit. As a general proposition of law, it is Respondent's duty to bargain solely with the statutory representative and no other groups.3 The statutory representative, of course, may by actual delegation of authority to others, or by a course of conduct amounting to acquiescence or ratification, bind itself by the acts of its agents acting within the scope or apparent scope of their authority.4 The Union never clearly delegated to Local 42 the right to bind it by contract without its approval. Section 85 of the International Union's constitution, upon which Respondent relies, gives local unions the right to negotiate agreements, but also clearly states that such authority is "subject to the approval of the general executive board . . " In addition, the Union's constitution establishes and protects the rights of its members among themselves and vis-a-vis the Union and is a purely internal union matter. The Respondent cannot raise it as a defense to a refusal-to- bargain charge, particularly where the Union is the statutory bargaining agent.5 With respect to the Local's apparent authority, the record in the case is somewhat uncertain. There is evidence that the Union did not sign the 1957 agreement, and Dean Rhoten, president of the Local, testified that he negotiated the 1960 agreement. He added, however, that an International representative was present at the negotia- tions. It also appears, in addition, That International representatives are normally present and are principal spokesmen at bargaining particularly with respect to wages a Boswell testified that he did not mean to convey the impression by Attorney Donnelly's August 6 letter that the Company "would refuse to bargain " However, the refusal in the -letter is clear. Boswell also testified that the first knowledge he had of Calvert's and -Souder's visit to his plant was when charges were filed against the Respondent and that he did not tell his receptionist he would not meet with the men. The receptionist was not called and no explanation was made of Respondent's failure to do so. As stated, Z credit iCalvert's account. a Medo Photo Supply Corporation v. N.L R B., 321 U.S. 678 ; Quaker State Oil Refining ,Corporation v. N L.R.B., 270 F. 2d 40, 46 (CA. 3). * Sheet Metal Workers Union, Local No. 65, AFL-CIO ( Inland Steel Products Com- pany), 120 NLRB 1678; International Union, AFL-CIO (Maremont Automotive Prod- ucts, Inc ), 134 NLRB 1337; Operating Engineers Local Union No. 8, AFL-CIO (California Association of Employers), 123 NLRB 922, 929; Sunset Line and Twinee Company, 79 NLRB 1487. ' Quaker State Oil Refining Corporation, supra, footnote 3; see North Country Motors, .Ltd., 146 NLRB 82. INDEPENDENT STAVE COMPANY; INC. 437 and other cost items, and that the contracts contain a line for the International Union representatives' signature. As a matter of fact, the very contract in question has space for Calvert's signature, and Rhoten presented the agreement to him for execution at the Company's request. I do not think that the record shows apparent authority in Local 42 to bind the Union as statutory representative of the employees, nor do I think that Respondent in good faith believed that it could bind the Union with- out the approval of the International representative who had been assigned to conduct the bargaining, or the approval of the International executive board. I find it un- necessary to decide this question, however, for I find that whatever authority, real or apparent, Local 42 and its officers had was revoked to Respondent's knowledge before execution of the 1963 labor contract. As set forth in more detail above, Respondent was first alerted to Local 42's lack of authority when Dean Rhoten told company negotiators, at the July 12 meeting, that the Local was in disagreement with the International Union and that Vice President Calvert, who had been present and led earlier negotiations, would not attend. That same day, Respondent hurriedly made its "final offer" on wages to the Local, giving it only until July 18 to accept or reject it even though it was understood at the earlier meeting that wages would not be discussed on July 12. . On July 16 Respondent was succinctly but unequivocably advised by telegram from the Union that it could enter into no contract with the Local Union without first having approval of the Union. Nevertheless, Attorney Donnelly, Respondent's counsel, with knowledge of the telegram, undertook to interpret the Union's con- stitution and to advise Local 42 that it would be proper for the Local and Respondent to enter into an agreement. I find that, in the circumstances, the Union effectively disavowed any apparent authority the Local may have had to negotiate and sign an agreement .6 Having rejected the purported agreement by executive board action, the Union, by President Doyle's letter of August 1, 1963, reasserted its statutory right and asked Respondent to meet and negotiate. By letter of August 6, Respondent refused. On August 7, Company President Boswell refused to meet with the Union's vice president, Calvert, and Souders, its attorney. I find, and conclude, that by executing an agree- ment with the officers of Local 42 and by refusing to meet with the Union as found, Respondent refused to bargain with the Union in violation of Section 8 (a) (1) and (5). of the Act as alleged? IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with its operations set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free' flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, it will be recommended that Respondent be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. It will be recommended that Respondent be ordered to bargain collectively, upon re- quest, with the Union as the exclusive representative of the employees in the ap- propriate unit and, if an understanding is reached, embody such understanding in a signed agreement. Unon the basis of the above findings of fact and upon the entire record in the case I make the following: CONCLUSIONS OF LAw 1. Independent Stave Company, Inc., 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 plant employees handling cooperage, excluding all green mill employees. office clerical employees, professional employees, watchmen. guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. °John L Clem,mey Company, Inc, 118 NLRB 599 7 Supra, footnote 6. 438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. At all times since September 15, 1955, the Union has been , and now is, the ex- clusive representative of the employees in the unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on July 18, August 6, and August 7, 1963, and all times thereafter, to bargain collectively with the Union as the exclusive representative of its employees in the appropriate unit, Respondent has engaged in and is now engaging in unfair labor practices within the meaning of Section 8(a) (5) and (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, it is recommended that Independent Stave Company, Inc., Lebanon, Missouri, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with the Union as the exclusive bargaining representative of its employees constituting the unit herein found to be appropriate for the purposes of collective bargaining. (b) In any like or related manner interfering with, restraining, or coercing em- ployees in the exercise of rights guaranteed in Section 7 of the Act, except to the ex- tent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Upon request bargain collectively with the Union as the exclusive representa- tive of employees in the aforesaid appropriate unit, and if an understanding is reached embody such understanding in a signed agreement. (b) Post at its plant in Lebanon, Missouri, copies of the notice marked "Appendix." 8 [Board's Appendix substituted for Trial Examiner's Appendix.] Copies of said notice, to be furnished by the Regional Director for Region 17, shall, after being duly signed by an authorized representative of Respondent, be posted by Respondent immediately upon receipt thereof and maintained by it for a period of 60 consecutive days thereafter in conspicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by Respondent to in- sure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 17, in writing, within 20 days from the receipt of this Decision and Recommended Order,9 what steps it has taken to comply herewith. 8In the event that this Recommended Order be adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order." 'In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." Capital Bakers, Inc. and Local 464, American Bakery & Con- fectionery Workers International Union , AFL-CIO. Case No. 4-CA-3233. August 25, 1964 DECISION AND ORDER On May 27, 1964, Trial Examiner Leo F. Lightner issued his De- •cision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices, and 148 NLRB No. 51.