L-U-C-E Manufacturing Co.

288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD L-U-C-E Manufacturing Company and Kansas City Luggage and Novelty Workers Union Local No. 66 affiliated with International Leather Goods , Plastics & Novelty Workers Union , AFL-CIO. Cases 17-CA-2702 and 17-CA-2702-2. June 12, 1967 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On August 3, 1966, Trial Examiner Alba B. Martin issued his Decision in the above-entitled proceeding, finding that the 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 Trial Examiner's Decision. He further found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint. Thereafter, the Respondent and the General Counsel filed exceptions to the Decision with supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. 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 Trial Examiner's Decision,' the exceptions and briefs, and the entire record in this case, and finds merit in certain of the Respondent's exceptions. On June 27, 1966, subsequent to the hearing herein, but before the issuance of the Trial Examiner's Decision, the Charging Party, the Local Union, filed a motion with the Trial Examiner for permission to withdraw the charges in this proceeding, stating that "the matters in dispute between the parties have been settled and a renewal agreement has been executed by authorized representatives of each party." The International Union, which participated in the hearing, participated in "the settlement and renewal agreement," and joined and consented to this request for the withdrawal of the charges. The General Counsel opposes the granting of the motion to withdraw. The Trial Examiner denied the Charging Party's motion in his Decision, and Respondent has excepted to this ruling of the Trial Examiner. The record shows that the Respondent and the Union (the Charging Party) have a bargaining relationship dating back to 1942. The matters in dispute between the parties in this proceeding have been settled, and a renewal agreement has been executed by authorized representatives of each party. The parties have thus renewed their harmonious relationship and have concluded another contract. The Board, having duly considered the matter, and in view of all the circumstances herein, concludes that the motion to withdraw the charge should be granted and the complaint herein dismissed. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. I After the issuance of the Trial Examiner's Decision, the Respondent on August 17, 1966, filed a motion to reopen the record, (1) to receive a copy of a May 13, 1966, Supplemental Agreement between the Respondent and the Kansas City Luggage & Novelty Workers Union, Local No 66 of the International Leather Goods, Plastics & Novelty Workers Union, and (2) to receive and consider evidence with respect to the Union's health and welfare fund and pension fund to show how they affected Respondent's duty to bargain with the Union On August 19, 1966, the General Counsel filed opposition to the Respondent's motion to reopen the record In view of our disposition of this case, we find it unnecessary to rule upon this motion 'T'RIAL EXAMINER'S DECISION STATEMENT OF THE CASE ALBA B. MARTIN, Trial Examiner: This consolidated proceeding, with all parties represented by counsel, was heard before me in Kansas City, Missouri, from January 27 to February 2, 1966, on complaint of the General Counsel and answer of L-U-C-E Manufacturing Company.' The issues litigated were whether Respondent violated Section 8(a)(5) and (1) of the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq., on June 5, 1965, by bypassing the Local Union, the certified exclusive bargaining agent , and bargaining directly with and on June 6 signing a contract with certain employees rather than the Local Union; by thereafter refusing to negotiate and discuss with the Union; and on September 1, 1965, by unilaterally putting into effect a health and welfare plan without negotiating it with the Local Union. After the hearing the General Counsel and Respondent filed briefs, which have been carefully considered. Several months after the hearing the Charging Party, the Local Union, filed a motion for leave to withdraw the charges, stating that "the matters in dispute between the parties have been settled and a renewal agreement has been executed by authorized representatives of each party." The International Union joined in this motion, and the General Counsel opposes it. This motion is hereby decided in accordance with the findings and conclusions herein. After the hearing the General Counsel filed a motion to correct the record in certain respects. As the suggested ' The Union filed the charge in Case 17-CA-2702 on June 7, 1965 , and filed the charge in Case 17-CA-2702-2 on September 30, 1965 165 NLRB No. 35 L-U-C-E MFG. CO. corrections appear correct to me, and as no party has objected, the motion is hereby granted. The motion has been placed in the original exhibit file as Trial Examiner's Exhibit 1. Upon the entire record and my observation of the witnesses, I hereby make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF RESPONDENT COMPANY Respondent, L-U-C-E Manufacturing Company (herein called Respondent, Respondent Company, L-U-C-E, and the Company), is a Missouri corporation engaged in the manufacture of luggage and related items at its plant at Kansas City, Missouri, its only facility here involved. Respondent annually receives from points outside the State of Missouri goods, products, and materials valued in excess of $50,000 and annually ships to points outside the State of Missouri goods, products, and materials valued in excess of $50,000. 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. II. THE LABOR ORGANIZATION INVOLVED Kansas City Luggage and Novelty Workers Union Local No. 66 (herein called the Local Union and the Union), affiliated with International Leather Goods , Plastics & Novelty Workers Union, AFL-CIO (herein called the International Union and the International), is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Bargaining History Prior to Bypassing the Union on June 5-6,1965 The Local Union was certified by the Board in 1942 (42 NLRB 207) as the exclusive bargaining representative for all production and maintenance employees at Respondent's Kansas City plant, excluding supervisory and clerical employees and janitors. There has been no subsequent certification of any other labor organization, and ever since the certification the Local Union has been the duly certified collective-bargaining representative of all employees in the unit. Since the certification, the Local Union and Respondent have had a continuing collective- bargaining relationship which has produced some 15 contracts governing their relationship from 1942 until December 31,1964. The Local Union is affiliated with the International Union named in the caption and is subject to the rules of the International's constitution. Members of the Local in their obligation of membership obligate themselves to obey the rules and regulations of the Local Union and the ' Under "Contract Uniformity" the International constitution provided for the formulation of a comprehensive policy on contract uniformity either by "Convention Mandate" or by the general executive board 'of the International The constitution provided that the general executive board would implement this policy through the general officers and that local unions should submit their contract demands to the International for approval based upon the International's contract uniformity policy The constitution granted the general executive board through the International president in consultation with and approval of the general officers, authority to grant modification and temporary relief from enforcement of industry contract uniformity policy to any local union "which may make such justified request upon 289 constitution of the International. In the negotiations leading up to the 15 contracts the Local Union was represented by its business representative and by a negotiating committee . Usually the Local was assisted by one or more representatives of the International Union . Under the constitution of the International Union , to insure contract uniformity local unions were to submit their contract proposals and their negotiating contracts to the International for approval.2 Every contract between the Local and the Company except the disputed one of June 6, 1965, and possibly except two earlier ones ,' was signed on behalf of the Union by its business agent (business manager, business representative).' In addition all of the contracts between January 1943, and May 1959, with the exceptions noted in the footnote, were signed on behalf of the Local by its president and secretary-treasurer. The contract of December 18, 1959, was executed for the Local by its vice president , business representative , and at least two members of the negotiating committee . The contract of December 30, 1960 , was executed by the business representative and at least three members of the negotiating committee . The contract of December 28, 1962, was signed by the business representative and at least two members of the negotiating committee . The last contract, executed December 20, 1963, was signed by the business representative and at least three members of the negotiating committee . I conclude from the above and upon the preponderance of the evidence that up until the disputed June 6, 1965, contract , both Respondent and the Local have considered the signature of the Local's business representative as necessary to the consummation of a written agreement between them. The Local customarily consulted its members in the L- U-C-E plant in the formulation of contract demands, and for approval of negotiated contracts ; but there was no evidence that the Local ever delegated its authority to bargain for the L-U-C-E employees , back to the employees themselves or some of them or to all or some of the negotiating committee. During the 1964-1965 negotiations for a new contract to succeed the one which expired the last day of 1964, the parties met some 11 times from November 24, 1964, to May 18, 1965. No contract was achieved . The Union was represented by its business agent and a negotiating committee of three L-U-C-E employees : Louise Vann (who was also shop chairman at the L-U-C-E plant and was elected vice president of the Local in April 1965), Iva Mitchell , and Martha Wyse. A representative of the International Union was frequently present . Respondent was represented by two lawyers, Myron K . Ellison and John K. Bestor, who for many years had conducted Respondent's negotiations and handled its relations with the Union. reaching a stalemate in collective bargaining process " The International constitution provided that each local union shall submit to the International president and the general officers each negotiated contract for approval, and that approval would be granted when the contract negotiated was in conformity with the foregoing provisions ' Who signed the December 1952 contract was not shown on the exhibit copy Who signed the December 1954 contract was not shown on the exhibit copy, but there were lines for the signatures of the Local's president, secretary-treasurer, and business representative ' See footnote 3, above 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD During the 1964-1965 L-U-C-E negotiations strikes occurred and were settled at the plants of Gateway Luggage Manufacturing Company, Inc., and Neevel Luggage Manufacturing Company, Respondent 's principal competitors in the Kansas City area . As the Local also represented the employees at Gateway and Neevel, what was happening at those two firms had an impact on the bargaining at L-U-C-E. Respondent took the position that the wage rates at L-U-C-E must not be more than those at Gateway and Neevel, and reminded the union negotiators that L-U-C-E was already paying 5 cents an hour more than Neevel . Once at least , there was discussion as to whether there should be joint bargaining for all three companies . The contracts which resulted from the Gateway and Neevel settlements , provided for 40 hours' pay for 37- 1/2 hours' work conditioned upon the Union's winning the same concession from L-U-C-E. The situation at Scranton , Pennsylvania , also had an impact upon the 1969-1965 negotiations at Kansas City. Respondent was owned by Mrs. A. P. Luce, its president. Her son was president of another corporation , named L-U- C-E Luggage, Inc., whose plant was in Scranton, That company was heavily in debt to Mrs. A. P. Luce. The same attorneys represented both corporations and represented Respondent before me. The Scranton employees were represented by another local of the International. The Scranton employees went on strike June 2, 1965, after the old contract expired May 31, 1965. Early in the Kansas City L-U-C-E negotiations, in January and February 1965, the parties discussed the possibility of adopting in Kansas City the entire existing Scranton contract , including the Union' s health and welfare plan . Several times during the Kansas City negotiations , Raymond Dooley , vice president of the International , and other International officers suggested joint negotiations for the Kansas City and Scranton plants, and suggested the possibility of a strike at Kansas City. Arrangements between Respondent 's attorney , Ellison, and the president of the International for a "summit" meeting in New York to avoid work stoppages at both plants were all but consummated when the Scranton strike began; and Respondent's attorney refused to go to New York. In a meeting of Kansas City L-U-C-E members on March 3, 1965, when Dooley was talking to the employees along the lines of "no contract-no work ," the employees voted not to strike and to continue the negotiations . Dooley informed Respondent's negotiators of this employee sentiment. The different points of view between the International officers and at least some Kansas City L-U-C-E employees related at least in part to the so-called "Convention Mandates." For several years the International officers had been advocating two International convention mandates : the Union's health and welfare plan, and 40 hours' pay for 37-1/2 hours' work. In the 1962-1963 negotiations the Local's negotiators asked for the 37.1/2• hour work plan, but not for the health and welfare plan, although at a meeting L-U-C-E members voted against asking for either. The members of the negotiating committee , Pansy Burns, Iva Mitchell, and Martha Wyse, were against the 37-1/2-hour work plan. The resulting contract included neither . For some time the International did not approve the contract and the International president did not sign it. The Local's executive board retaliated by withholding the per capita payments it owed the International. Finally an International representative brought in the contract signed by the International president and explained that the International's objection to it was its ommission of the two mandated clauses. The Local's business agent was expelled from the Union at the end of 1963. At the opening session of the 1964-1965 negotiations, the Local's spokesman, its business representative, Carl Haley, withdrew from its written demands the 37-1/2-hour week and the health and welfare plan explaining that they were convention mandates, but that the Kansas City L-U- C-E employees did not want them. Other testimony indicated that the L-U-C-E employees believed that if they pursued the 37-1/2-hour demand they would end up with 37-1/2 hours of pay for 37-1/2 hours of work, and they did not want that. As for the International's health and welfare plan, the Local's spokesman indicated they preferred another health and welfare plan, which they proposed. At the third negotiation session, on December 11, 1964, International Vice President Dooley entered the negotiations and in substance reinstated the Union's health and welfare plan and the 37-1/2-hour-week plan as union demands in the negotiations. They were discussed off and on in the negotiations after that On April 26, 1965, after the L-U-C-E negotiations had been in progress for some 4 months, the Local's incumbent business manager, Carl Haley, was defeated for reelection by Carlos Medina in what was described in the International's newspaper as a close election. Haley's defeat may or may not have resulted in some degree from a divided opinion within the Local as to Haley's position in the L-U-C-E negotiations concerning the two convention mandated issues. At the last negotiation session, prior to the June 5 and 6 bypassing of the Local Union, on May 18, the Union pressed for wages and working conditions consistent with those achieved in the Gateway and Neevel 3-year contracts, each of which included an immediate 7-1/2- cent-an-hour raise the first year, the International's health and welfare plan the second year, and 40 hours' pay for 37- 1/2 hours' work the third year. Respondent's attorneys presented a written package proposal of 10 items, which included an immediate 4-cent-hour raise, the Company's rather than the International's health and welfare plan, and no clause providing for 37-1/2 hours' work at 40 hours' pay. The Union rejected the Company's proposals because of disagreement with the wage structure, the bonus proposal, the Company's health and welfare plan, and the disposition of a pending arbitration case. According to the credited testimony of Carlos Medina, the union spokesman said the Union would recommend the company proposals to the L-U-C-E employees only if they were changed to provide an immediate 7-1/2-cent-raise and the Union's health and welfare plan. The Company's attorneys rejected these changes. The Company's attorneys then stated they would like to have the L-U-C-E employees have an opportunity to vote on the Company's proposals, and pressed the union representatives to state when a "ratification" meeting would be held. The Union's spokesman said the Union knew its obligations and did not need Respondent to tell it how to conduct its business. Nevertheless the parties discussed whether such a "ratification" meeting would be held that week. Then there was further discussion about the cost of the Company's health and welfare plan, and discussion of the problems involved in the Union's health and welfare plan, according to the credited testimony of Bestor, On this note the meeting adjourned. Upon the evidence set forth in this L-U-C-E MFG. CO. paragraph and the preponderance of the evidence in the entire record, I conclude that the June 18 meeting adjourned with no meeting of the minds and no impasse in the bargaining. The following day, one of Respondent's attorneys met Business Agent Medina at an arbitration meeting and asked him if he had yet arranged a meeting with the L-U- C-E employees. The Union's monthly meeting in May was held on May 24, but as only five or six L-U-C-E employees attended, the L-U-C-E proposals were not presented or discussed. Medina arranged for a meeting on June 3 to present and explain the Company's package proposals. At the urging of Iva Mitchell and Martha Wyse, two members of the negotiating committee, he was able to arrange to have it advanced to June 2. This meeting turned out to be a fiasco because the Union, pursuant to its bylaws and a notice to L-U-C-E employees, undertook to restrict the meeting to members in good standing whose dues were paid up. (Dues had not been checked off since the expiration of the prior contract at the end of 1964.) This meant that a number of L-U-C-E employees were turned away at the door, even though Supervisor Jule Cunningham handed money at the entrance to some of them to pay their dues. Also, some Neevel and Gateway employees were present, and some L-U-C-E employees did not like that. Chaos reigned, the International representative who was trying to get the meeting to order was unable to do so, someone called the police, and the meeting was abandoned. On June 3, 1965, the Union passed out to L-U-C-E employees in front of the L-U-C-E plant a handbill reading as follows: June 3, 1965 NO CONTRACT...... NO WORK! TO ALL L-U-C-E MANUFACTURING COMPANY EMPLOYEES Gateway and Neevel Luggage contracts have been signed and settled successfully. These contracts call for 7-1/2 cents per hour increase in wages, Health & Welfare and pension retirement coverage, 37 1/2 hour work week with 40 hours pay. Your employers have not at any conference offered as much. They continue to submit tricky offers and an insurance coverage that is vague. Obviously they are not bargaining in good faith. The Company depends upon a small minority of stooges to keep your shop divided. The time has come when this minority must be prevented from you gaining a fair and just settlement similar to the settlements of Gateway and Neevel, or even better. The Scranton shop of L-U-C-E is on strike as of Wednesday, June 2nd, for improved wages and working conditions, etc. Your fight is theirs and their fight is yours. Your International Union is supporting the Scranton Local 41 strike and will also support the L- U-C-E workers of Kansas City. Exercise your rights as good trade unionists and Americans-No contract ... No Work ! For some years employees had been trying without avail to get supervisors out of the Local because they lessened the effectiveness of the Union The only two supervisors with whom we are here concerned were Mary Archer and Jule Cunningham 291 Fight for a living wage and a good union contract and union protection. Sincerely and Fraternally, K C LUGGAGE & NOVELTY WORKERS UNION LOCAL NO. 66 Anna Kellerman President Louise Vann Vice-President Daisy Allsworth Secretary-Treasurer Carlos Medina Business Manager B. Bypassing the Union and Dealing Directly With Employees 1. The facts On Saturday morning, July 5 (the plant was working that day), a leadwoman, Pansy Burns, circulated for signatures a petition asking for an immediate meeting to learn what the Company had offered and to vote on it and saying that if they could not get a meeting they wanted to "dispose of" the officers of the Local and get new officers who would give them meetings. Without seeking permission and on company time without being docked for it, Burns left her job without reprimand and spent about 1-1/2 hours circulating the petition. She was assisted by other leadwomen who had their employees stop work, read the petition and, in some cases at least, converse with Burns. Burns circulated the petition on all four production floors where the approximately 247 employees in the appropriate unit at work that day worked. The leadwomen had been covered by the expired contract, and had been members of the Local. They, or most of them including Pansy Burns, had been in arrears in their union dues since the cessation of the checkoff with the expiration of the last contract, and under the constitution of the International (article XIII, sec. 6), were in a state of automatic suspension from membership. That Respondent knew and approved what Burns and the other leadwomen were doing follows from the fact that simultaneously that morning Jane Luce telephoned Respondent's attorney, Bestor, and told him the employees were circulating a petition. Further, it is inconceivable that Supervisor Mary Archer, who was over Burns and in charge of her floor, did not miss her for 1-1/2 hours and did not know what she was doing. Particularly is this so since a few days before, on May 26, Archer had herself participated with two members of the Union's negotiating committee (Wyse and Mitchell) in trying to get an early union meeting; and since Archer attended the meeting of employees that Saturday afternoon, June 5. Supervisor Archer was herself a suspended member of the Local because her dues were in arrears.' Lunchtime consisted of one-hour free time beginning at 11:30 a.m. At lunchtime on June 5, Pansy Burns and two members of the negotiating committee, Iva Mitchell and Martha Wyse, were absent from the plant for about 1-1/2 hours while they drove to the home of the president of the Local and back to try to get a union meeting set for that afternoon. They left about 11:30 and returned just a few minutes before the meeting held that afternoon at 1:30. Although Supervisor Jule Cunningham knew where and why they went, they were not docked for the time beyond the one-hour lunchtime that they were away. Cunningham On June 17, 1965, after the June 5-6 events, the Local wrote Cunningham that "because of your supervisory status you are ineligible for membership in our Union and we are hereby terminating your membership " 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD knew because Mitchell had asked Cunningham's permission for the three of them to go to see the president of the Local, Anna Kellerman, to see if she would hold a meeting. The three asked the president of the Local, Anna Kellerman, to call a special union meeting for L-U-C-E employees, which the Local's bylaws permitted the president to do upon written petition by seven members in good standing. Kellerman credibly testified that in her 24 years as a member of the Local she did not recall any occasion when a meeting had been called on the spur of the moment. She explained that because of a funeral she could not be present at a meeting that afternoon; she did not object to their holding a meeting, although the Local's rules provided that-the president or vice president "shall" preside over all meetings of the Local. According to Kellerman's credible and credited testimony, Kellerman offered to call Business Manager Carlos Medina for them and they told her not to, saying that they wanted "no part of Carlos." The three left Kellerman without any arrangements for the meeting having been made. Burns, Mitchell, and Wyse returned to the plant, immediately asked and received permission of Jane Luce to hold a meeting in the company cafeteria to see if the employees would accept the Company's proposed contract. Burns gave the petition to Jane Luce and told her to read it. Jane Luce was the daughter of Mrs. A. P. Luce, president of Respondent. Jane Luce, a woman in her 40's, was looked upon by the employees as an important member of management from whom they received orders. According to Respondent's attorney who has done business with her since about 1952, Jane's duties "are kind of what she makes them." The entire record proved, and I conclude, that Jane Luce was an agent of Respondent. Then, at 1:30, shortly after the return from Kellerman's house, the meeting was held on company time in the company cafeteria. The leadwomen on the various production lines told employees to turn off their machines and go to a meeting in the cafeteria. Although most of the employees working that day attended the meeting, Louise Vann, the vice president of the Local, shop chairman at the L-U-C-E plant, and member of the negotiating committee, was not invited to attend and did not attend. Supervisors Archer and Cunningham attended the meeting. The meeting was attended by employees who were delinquent in their dues to the Union and under the Union's bylaws automatically suspended. Some of the employees present were new employees who had not yet joined the Union. No officer of the Local was invited or attended. The president did not call the meeting. The president or vice president of the Local did not preside, which the bylaws of the Local provided they should do if this was a meeting of the Local. Wyse, Mitchell, and Burns were up front. Wyse opened the meeting by stating the meeting was about the Company's proposal. Pansy Burns, a former officer of the Union and former member of the negotiating committee, but then holding no office or function with the Union, rapidly and in a soft voice read off the Company's 1-page package proposal. Wyse asked if there were any questions. The only question raised was whether this was a legal meeting. Burns replied that it was. There was no discussion of the proposals. A standing vote was taken and the proposals were approved by a large margin. Someone asked if the contract had to be signed by the business manager to be legal. Burns replied in the negative. The group approved a resolution to the effect that the Local's executive board was not to interfere with the contract. After the meeting, which lasted about 15 minutes, the employees returned to their work. Burns then informed Jane Luce that the employees had accepted the Company's proposal and asked her what was to be done next. Jane Luce telephoned one of the Company's attorneys, Bestor, told him that "the employees" (not the Union or the employees who were members of the Union) had "ratified" the company proposal, that they wanted to know if a contract could be drawn up, and that they were concerned about the possibility of pickets at the plant the following Monday, June 7. The Company's attorney drafted a contract that afternoon, as though it were a contract between the Company and the Local, although he knew from recent bargaining history and the May 18 meeting that the leadership of neither the Local, who spoke for the Local in negotiations, nor the International, approved this May 18 package proposal. The document he prepared was executed the following morning, Sunday, June 6. It was signed for the Company by Mrs. A. P. Luce; and, purporting to act for the Local, by Iva Mitchell and Martha Wyse of the Local's negotiating committee, Germaine Glaze, one of eight members of the Local's executive board, and by Pansy Burns, who had no office or function with the Local. Burns signed at the suggestion of Attorney Bestor, since she had participated in getting it "ratified." Louise Vann, the third member of the Local's negotiating committee, was not asked to sign the contract, nor was Medina, the business agent, nor were any officers of the Local, including the president and secretary- treasurer, who for many years had signed the contracts for the Local. Sunday afternoon, helped in drafting by Attorney Bestor and presumably Jane Luce, Respondent sent the Local's business agent, Carlos Medina, a telegram reading as follows: We understand that you propose to place pickets at our plant Monday, June 7. This is to advise you that at a meeting of the members of your Union employed by L-U-C-E the Company's offer of May 18 was ratified by a vote of 200 in favor of the proposal, 5 against. Following the ratification a contract was executed by Mrs. Luce for the Company and by a majority of the negotiating committee and all members of the executive board for the Union.6 Further we understand that the L-U-C-E employees at this meeting passed a resolution directing you not to attempt to strike or picket this plant. Any strike or picketing action by the Union during the term of our contract with Local No. 66 will violate that contract and will force us to seek our remedies in court against you and Local No. 66. Sunday afternoon Respondent also sent the Local's president a telegram to the same effect. On Saturday afternoon Pansy Burns telephoned the president of the International Union in New York City, and told him that "we have a contract" and in substance "a meeting" had ratified it; that she was calling him to s Attorney Bestor credibly testified that the telegram as composed said "a" member of the executive board instead of "all members " L-U-C-E MFG. CO. 293 prevent pickets from picketing the place on Monday morning. The president of the International said only that he would contact the Local. A union handbill over Medina's signature was written after his receipt of the above telegram and it was distributed to L-U-C-E employees on Monday, June 7. This handbill claimed the June 5 meeting was not a bona fide union meeting, not called under union rules and regulations, and not binding on anyone. It referred to it as a captive meeting on company property under company auspices. On June 21, Respondent forwarded to the Union dues checked off pursuant to the June 5 "contract." Respondent's covering letter indicated Respondent knew the Union contended the "contract" was not valid The Union returned the check with a June 28 covering letter reading as follows: This is to advise you that your letter of June 21, 1965, has been received and is being treated as the self-serving document it is. Your so-called "contract" is a nullity and if the remittance of check-off is conditioned upon recognizing an invalid instrument then, of course, I have no choice but to return your check to you. Your letter is merely further evidence of the unfair labor practices you have been engaged in. Since this letter, Respondent has regularly forwarded checks for checked-off dues money to the Union and the Union has regularly returned them to Respondent. At all times between the filing of the original charge on June 7, 1965, and the hearing some 7 months later, the Union always contended the resulting "contract" was not a contract with it and was an unfair labor practice. The Union brought charges against Wyse and Glaze for signing the "contract" and bypassing the Union. They were expelled from the Local for failing to appear before a committee. 2. Analysis, Respondent's defenses, and conclusions On June 5 and 6, 1965, the Local Union was the exclusive bargaining agent of the employees in the certified appropriate unit. Until those days, Respondent had been negotiating with the Union's official representatives: its business agents, its three-member negotiating committee, and representatives of the International Union. On June 5 and 6, Respondent took advantage of divided sentiment within the Local and within the negotiating committee concerning local support for the International's convention mandates, which presumably had been adopted as bargaining goals at one or more countrywide conventions. Respondent assisted those employees who were against the convention mandates by knowingly permitting them to circulate and have employees sign a petition on company time and property, by permitting them to hold a meeting of company employees on company time and property, and by permitting three employees to be absent for 1-1/2 hours on company time to arrange for the meeting. As Respondent's attorneys knew, Pansy Burns, who took the strongest initiative to bring the meeting about, then held no office or position in the Local and was not acting for the Local. She spent about 2-3/4 hours of company time on June 5 soliciting signatures on the petition, visiting Kellerman's house, and at the meeting. The June 5 meeting was clearly not a meeting of the Local, as Respondent well knew. It was not called or presided over by the Local's president. President Kellerman's alleged remark, to the three who visited her, "you kids go ahead and have your little meeting, you have to live with it," did not make the meeting a union meeting. It was not called as a meeting of the Local, or even of L- U-C-E employees who were members of the Local. It was called for all L-U-C-E employees, including those who had never joined the Local and those who were automatically suspended but in arrears in their dues. If the meeting had been called as a meeting of the Local or as a meeting of the L-U-C-E employees who were members in good standing of the Local surely Louise Vann, a L-U-C-E employee and shop chairman, vice president, and a member of the negotiating committee of the Local, would have been informed the meeting was going to occur. She was not informed. Nor was any other officer of the Local, nor the business agent, Medina, told of the meeting or invited to it. Several witnesses testified that Burns read the proposals in a soft voice and too rapidly and that they did not understand what she read. There was no explanation of the meaning of the company proposals, no discussion of their merits, and no real opportunity for free expression of employee sentiment. It was a captive meeting with a captive audience acting like captives. Under the circumstances, as an accurate expression of employee sentiment on the negotiation issues, the vote was meaningless. The contract of June 6 was a contract with four employees in violation of Respondent' s legal obligation to bargain and contract with only the exclusive bargaining agent, the Union.' It was not a contract with the Union because there was no meeting of the minds at the bargaining table between the Respondent and the Union. The negotiation session of May 18, the last session before execution of the June 6 contract, did not end with a meeting of the minds, and Respondent knew from the entire course of the negotiations that no agreement had been reached. So that On June 5 there was nothing to ratify. As the contract was not a contract with the exclusive bargaining agent, it was a contract with four employees who represented nobody, and was legally a nullity. Additional evidence that the June 6 contract was not a contract with the Local was the fact that there was no line on it for the signature of the Local's business agent, whose signatures had appeared on every previous contract. This time the employee promoters of the contract wanted "no part of" the business agent obviously in favor of the convention mandates who only 6 weeks before had defeated in what was described as a close election the incumbent business agent who had withdrawn the convention mandates at the first bargaining session. Additional evidence that Respondent knew its June 6 contract was not with the Local is the fact that Respondent found it necessary to send telegrams to the Local's president and business agent telling them the contract had been "ratified." If the contract had really been with the Local, surely the Company could have assumed that the Local 's agents who negotiated it would Medo Photo Supply Corporation v N.L.R B, 321 U S. 678, National Licorice Co., 104 F 2d 655 (C.A 2); The Arundet Quaker State Oil Refining Corporation v N L R B , 270 F 2d 40, Corporation , 59 NLRB 505 46 (C.A. 3). Cf J I Case Co v N .L R B , 321 U S . 332, N L.R.B v 299-352 0-70-20 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD inform such important local officials as the president and business agent about it. That Respondent intended to bypass the Local's authority as exclusive bargaining agent and force the Local to accept the Company's proposals which did not include the convention mandates is further shown by the facts that when immediately the Union protested Respondent's actions in the June 7 handbill, the filing and serving upon Respondent of the charge on June 7, and the Local's June 28 letter to Respondent, the latter made no move to undo its unlawful actions of June 5 and 6. The General Counsel urged as additional proof that Respondent bypassed the Local on July 5 and 6, the alleged fact that the leadwomen, Pansy Burns and others, were supervisors and were therefore working in the interest of Respondent. Upon the entire record I find it is not necessary to resolve this question in order to resolve this proceeding The record contained some, though not necessarily conclusive, indication that they were supervisors within the meaning of the Act. On the other hand, it would not necessarily follow that, even so, they were working solely in the interest of Respondent on July 5 and 6, since for many years they had been members of the Union, and as, since 1945, they had been specifically included in the coverage of the several contracts between the Union and the Company. Also, during the first half of 1965, when they were delinquent in their dues, the Union sought to collect the dues by writing the Company that if they were not paid up the Union would request the discharge of the delinquents. Respondent contended it was justified in what it did in order to prevent a strike or picketing at its plant beginning on Monday, June 7. If a strike had occurred it would have been a primary strike to accomplish economic ends. Under the Act, employees had a right to engage in such a strike and there was nothing unlawful in the Local's or the International's efforts to bring it about. The fact that a possible strike was "in the wind" did not justify Respondent in bypassing the exclusive bargaining agent. In fact, the record established that neither a strike nor picketing was planned for the L-U-C-E plant for the following Monday or for any day. Under all the circumstances a legal strike was a possibility some time in the future, but this fact did not justify Respondent's actions. The International's or the Local's potential resort to a legal economic tool did not justify Respondent in exploiting a division within the Local and the Local's leadership and in bypassing the Union. Respondent contended the General Counsel did not sustain his burden of proof as to what was the appropriate unit. The General Counsel showed that the Union was the certified bargaining agent and that since the certification the parties have negotiated many contracts and had a continuous collective-bargaining relationship up until the challenged events on June 5 and 6, 1965. Insofar as the record showed, during the 1964-1965 negotiations Respondent did not question the Union's representation of a majority of the employees in an appropriate unit. There was no evidence that Respondent had a good-faith doubt as to the Union's representation of a majority of the employees in an appropriate unit. Under all the circumstances of this proceeding I hold that the General Counsel has sustained his burden of proof as to the appropriate unit and that Respondent had no good-faith doubt concerning the Union being the exclusive bargaining agent of the employees in the appropriate unit. The appropriate unit was the one certified by the Board: all production and maintenance employees, excluding supervisory and clerical employees and janitors. Respondent contended that it cannot be held to have refused to bargain with the Union because the Union was engaging in activity proscribed by the antitrust laws. Respondent contended that the strike-settlement agreements between the Union and Gateway and Neevel, which were conditioned upon the Union's winning the same 37-1/2-hour concession from L-U-C-E, were in violation of the antitrust laws, citing Penntngton,8 and that Respondent cannot be held to have refused to bargain because the Union was refusing to bargain in good faith by bargaining to an impasse in an attempt to implement its violation of the antitrust laws. This defense is not valid for several reasons. Firstly, as has been found above, the Union did not bargain to impasse over the 37-1/2-hour clause. At the May 18 meeting, the last negotiation session prior to the bypass, the Union's spokesman, Hayes, said the Union would submit the Company's package proposal to the union membership if two certain changes were made, and these changes did not relate to the 37-1/2-hour clause which the Company's proposal did not include. Thus, at this point in the negotiations, the Union waived the 37-1/2-hour clause, at least for the time being. In the second place, Respondent conceded that it had not filed an antitrust suit because it could not prove any damages. In the third place, this is not the appropriate forum to try an antitrust suit. Respondent contended it cannot be held to have refused to bargain with the Union because the Union bargained in bad faith by insisting, as a condition precedent to an agreement, on the inclusion of the Union's health and welfare plan, which was an unlawful plan. This defense is not well taken There is no evidence that during the negotiations Respondent ever claimed to the Union that its health and welfare plan was illegal. This must have been an afterthought worked up in defense of this case. During the negotiations Respondent was objecting to the union plan on the merits, on the ground that it spread the benefits too thin. If Respondent had continued negotiating with the Union instead of bypassing it, it is possible that in the end the parties could have achieved a meeting of the minds on a health and welfare plan. As to the alleged illegality of the Union's plan, Respondent asserts that it is illegal under Section 302 of the Act. Respondent sought, vainly, to prove that alleged illegality here, although Section 302(e) of the Act grants to the Federal District Courts jurisdiction to restrain violations of that Section. Respondent contended it cannot be held to have refused to bargain with the Union because the Union bargained in bad faith by manipulating for bargaining on a multiemployer basis rather than for the single Kansas City plant. Respondent contended that the Union sought to bargain for the Gateway and Neevel units and also the Scranton plant, as well as the Kansas City plant. This defense also is without merit. In seeking to gain what it considered to be better wages and working conditions for the employees of the Kansas City plant, the Union was seeking to use whatever assistance it could find from its situations at the other three plants. Respondent's attorneys were not attorneys for Gateway or Neevel, and both they and the Union knew they were negotiating only s United Mine Workers v Pennington, 381 U S 657 L-U-C-E MFG. CO. for the wages and working conditions of the employees at the Kansas City plant. Respondent offered numerous other contentions and several other defenses, all of which have been carefully considered and which I find to be without merit in defense to the bypassing allegations of the complaint. Upon the above considerations, the preponderance of the evidence, and the entire record considered as a whole, I hold that on June 5 and 6, 1965, by bypassing the certified exclusive bargaining agent and negotiating directly with employees; by assisting a few employees in trying to get employee approval of Respondent's bargaining proposals; and by executing the contract with a few employees who did not have and who Respondent knew did not have authority from the Local to enter into such contract; Respondent refused to bargain collectively with the Union and interfered with, restrained, and coerced employees in violation of the rights guaranteed in Section 7 of the Act, Respondent thereby violating Section 8(a)(5) and (1) of the Act. C. Unilaterally Instituting a Health and Welfare Plan Respondent 's June 6 "agreement" with employees contained a health and welfare program which was to become effective on January 1, 1966. On August 24, 1965, Respondent wrote Business Manager Medina of the Local, referred to the "agreement" as being with the Local, and said Respondent wished to discuss with the Local the feasibility of advancing the effective date to September 1, 1965. This was Respondent 's answer to a union letter of August 9, 1965, to some of its members who were L-U-C-E employees , saying that as the Union considered the "agreement" a nullity the Union was refusing to accept the dues moneys Respondent was checking off from the employees' pay and forwarding to the Union ; that under the International's constitution those in arrears more than 2 months were automatically suspended from union membership ; and that suspension canceled any rights or benefits the suspended employee may have had under an insurance policy the-Union had covering its members. The union letter urged employees to pay up their dues, and stated that the executive board of the Local had decided to keep the insurance in force until August 31, 1965, in order to give employees an opportunity to pay their dues and establish their good -standing membership by that date On August 27, Medina replied to Respondent's August 24 letter saying the Local would meet with Respondent, that he had been unable to contact the Local's attorney , Manning, who was out of town , that "if I can contact Mr. Manning by Monday , August 30, we will contact you for an early appointment." Medina's letter observed that if they did not arrive at an agreement before September 1, "there is no reason why it cannot be made retroactive to September 1. . ." Medina stated also that his letter was without prejudice to any rights and that the Union preserved its right to insist upon Respondent's negotiating an "authorized Union agreement." On August 31, Respondent's attorney wrote Medina as follows: We did not hear from you on Monday , August 30 as you promised in your letter of August 27 and we endeavored to reach you by telephone today since, as we stated in our letter of August 24, the Company wanted to place the insurance benefits into effect on the first of September . However, your office told us you were away and would not be back the rest of the 295 day. In your letter of August 27 you mentioned that if we do not arrive at an agreement with respect to the insurance program before September 1 "there is no reason why it cannot be made retroactive to September 1 (or earlier if mutually satisfactory)." We find that insurance companies do not write health and welfare insurance on a retroactive basis and the only way the L-U-C-E employees can have the benefit of an insurance program on September 1, 1965, is for the company to commit itself to the payment of the premium for that coverage today. Knowing that you and your organization would not wish to stand in the way of your members receiving any additional benefits which might be afforded them by their employer, we feel confident that you would not object to the company going ahead with instructions to the insurance company to put this health and welfare program into effect as of 12:01 a.m , September 1st. We fully appreciate, as you pointed out in your letter of August 27, that you and your organization do not want to prejudice any of your rights, positions or prerogatives. Consequently, without prejudicing any of your rights, positions or prerogatives, the company has arranged for California Western States Life Insurance Company to place into effect the life insurance benefits and accidental death and dismemberment benefit portions of the health and welfare program effective tomorrow, September 1, 1965, instead of January 1, 1966, as originally agreed upon. We want you to know that we are still ready and willing to discuss this matter with you and your negotiating committee and we shall appreciate it if you will let me know when you and your committee will be available for a meeting. Respondent caused the insurance to go into effect, as set forth in its letter, and it went into effect on September 1. It is clear from the above facts, and I find, that Respondent placed the insurance into effect on September 1, unilaterally and without giving the Union a reasonable opportunity to discuss the riatter first. Respondent first advised the Union of its desirb to advance the effective date only 1 week ahead of that effective date, which in view of its strained relationship with the Union was not sufficient to be reasonable. Respondent's misinterpretation or misquotation of Medina's letter as a promise which he allegedly had not kept did not make Respondent's position any more tenable. Respondent's placing the insurance into effect without giving the certified exclusive bargaining agent a reasonable opportunity to meet and discuss the matter was a unilateral changing of wages and working conditions and a further refusal to bargain with the Union, Respondent thereby further violating Section 8(a)(5) and (1) of the Act. D. Alleged Refusal to Discuss and Negotiate With Union Since June 6,1965 The complaint alleged that since June 6, 1965, Respondent has refused and continues to refuse to negotiate and discuss with the Union. On September 16, 1965, Respondent met and discussed with representatives of the Local Union and representatives of the International Union the health and welfare plan then in effect by virtue of Respondent's unilateral action , and also the Union's health and welfare plan. It cannot be found upon this record that upon this occasion Respondent refused to 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD negotiate with the Union. On the preponderance of the evidence, I do not find that at all times since June 6, 1965, Respondent has refused to discuss and negotiate with the Union. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent set forth in section I, above, have a close, intimate, and substantial relationship 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 Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. On June 27, 1966, the Charging Party, the Local Union, filed with me a motion for permission to withdraw the charges in this proceeding, stating that "the matters in dispute between the parties have been settled and a renewal agreement has been executed by authorized representatives of each party." The International Union, which participated in the hearing, filed a document stating that it participated in "the settlement and renewal agreement," and that it joined and consented to the request for withdrawal of the charges. The General Counsel opposes the granting of the motion to withdraw. As all parties have indicated that since the hearing the parties have signed a new collective agreement, I accept that as a fact; and hold that as the parties have now bargained to a contract a bargaining order is not necessary as a part of the remedy. Remaining unremedied is Respondent's bypassing of the Union in June 1965, and its unilateral action in August. These were not technical violations but were serious violations having a vital impact upon employee rights and which should not be left unremedied. Respondent should therefore be required to post an appropriate notice. In view of these unremedied violations I hereby deny the motions to withdraw the charges.9 As Respondent's unilateral action consisted of granting employees life s The motions are denied for the reason that the purposes of the Act will not be effectuated without the findings of statutory insurance and accidental death and dismemberment benefits at no cost to employees, I shall not order, as requested by the General Counsel in his brief, that Respondent rescind that action. Nothing herein requires Respondent to rescind that action. As no party has recommended any remedy concerning the checked-off dues being held in escrow, I make no recommendation concerning them. Upon the basis of the foregoing findings of fact, and the entire record in the case, I hereby make the following: CONCLUSIONS OF LAW 1. L-U-C-E Manufacturing Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Kansas City Luggage and Novelty Workers Union Local No. 66 affiliated with International Leather Goods, Plastics & Novelty Workers Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. On June 5 and 6, 1965, by bypassing the certified exclusive bargaining agent and negotiating directly with employees in negotiating a contract; by assisting a few employees in trying to get general employee approval of Respondent's bargaining proposals; and by executing a collective agreement with a few employees who did not have and who Respondent knew did not have authority from the Local to enter into such agreement; Respondent refused to bargain collectively with the Union and interfered with, restrained, and coerced employees in violation of the rights guaranteed in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 4. By unilaterally placing employee insurance benefits into effect on September 1, 1965, without giving the certified exclusive bargaining agent, the Union, a reasonable opportunity to meet and discuss the matter, Respondent further refused to bargain with the Union and thereby has further engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 5. The aforesaid labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] violation herein made and without the remedial order herein recommended. I