City Transfer Co., Ltd.

38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD City Transfer Co., Ltd., and Hawaii Employers Council and Hawaii Teamsters and Allied Work- ers, Local 996. Case 37-CA-430 June 28, 1967 DECISION AND ORDER By MEMBERS FANNING, JENKINS, AND ZAGORIA On April 24, 1967, Trial Examiner James R. Hemingway issued his Decision in the above-enti- tled proceeding, finding that the Respondents had not engaged in any unfair labor practices as alleged in the complaint and recommending that the com- plaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Ex- aminer's Decision and a supporting brief. An an- swering brief was filed by the Respondents. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made 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 the case, and hereby adopts the findings, conclusions,' and recommenda- tions of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended. the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner, and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. ' In view of the Union's admitted belief that the moving and storage negotiations had resolved all aspects of the negotiations except freight wage rates, the record does not contain sufficient evidence to substantiate the Union's claim of a change in position (either implied or apparent) by City Transfer The union position admits to an interpretation of past bar- gaining practice similar to the Respondents' interpretation City Transfer had not been a full participant in past negotiating sessions without being personally represented on the employer bargaining committee It was not personally represented on the bargaining committee in the freight negotia- tions Thus, in accordance with the conceded bargaining history, it is reasonable to find that City Transfer' s intention was to limit its participa- tion in the freight negotiations to freight wage rates Therefore, the Trial Examiner correctly concluded that City Transfer had not placed itself in such a position as would require it to incorporate the provision for preferential seniority and premium pay for union freight stewards into a collective-bargaining agreement DECISION AND RECOMMENDED ORDER STATEMENT OF THE CASE JAMES R. HEMINGWAY, Trial Examiner: Upon a charge filed on August 18, 1966, by Hawaii Teamsters 166 NLRB No. 34 and Allied Workers, Local 996, herein called the Union, the Regional Director for Region 20 of the National Labor Relations Board, herein called the Board, acting for the General Counsel of the Board, on November 29, 1966, issued a complaint against City Transfer Co., Ltd., and Hawaii Employers Council, herein called Respond- ents, alleging that Respondents had engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq., herein called the Act. In substance, the complaint alleges that on about July 25, 1966, after a series of collective-bargaining meetings, Respondents and the Union reached agreement on the terms and conditions of a collective-bargaining contract covering an appropriate unit, but that Respondents refused to execute a written contract embodying the terms and conditions of the collective-bargaining agree- ment reached. Respondents' answer, filed on December 8, 1966, denied that Respondents had engaged in the bar- gaining alleged or engaged in the unfair labor practices al- leged in the complaint. Pursuant to notice, a hearing was held in Honolulu, Hawaii, on February 20, 1967. At the close of the General Counsel's case-in-chief, the Respondents moved to dismiss. The motion at that time was denied. At the close of the hearing, Respondents again moved to dismiss. Ruling was reserved and is disposed of by the Recommended Order herein. Time was fixed for the filing of briefs, and this time was later extended. Briefs were received from the General Counsel and from the Respondents. From my observation of the witnesses and upon all the evidence in the case, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT CITY TRANSFER CO. Respondent City Transfer Co., Ltd., herein separately called City Transfer (Hawaii Employers Council being separately called the Council), is, and has been at all times material hereto, a Hawaii corporation with its prin- cipal office and place of business located in Honolulu, Hawaii, where it is engaged in the business of transport- ing freight and household goods and supplying storage for such freight and household goods. City Transfer, in the course and conduct of its business operations, during the calendar year preceding the is- suance of the complaint, received in excess of $50,000 pursuant to contracts with, or as agent for, various in- terstate common carriers operating between and among various States of the United States, including among others, Mayflower Long Distance Moving Agency, which annually receives in excess of $50,000 for its trans- portation services. The Council is a voluntary association of employers existing for the purposes, among others, of representing and assisting employers, including City Transfer, in negotiating and entering into labor contracts with the col- lective-bargaining representatives of their employees, in- cluding the Union. Jurisdiction of the Board is not in issue. I find that the Board has jurisdiction within the meaning of the Act. II. THE LABOR ORGANIZATION The Union is a labor organization that represents, for CITY TRANSFER CO. the purposes of collective bargaining , employees of many employers in Hawaii , including those in an appropriate unit at City Transfer. III. THE UNFAIR LABOR PRACTICES A. Refusal to Bargain 1. The appropriate unit and the Union's majority therein The complaint alleges and the answer admits that a unit composed of all employees of City Transfer employed on the Island of Oahu (Hawaii), excluding office clerical em- ployees, professional employees, guards and/or watchmen, and supervisors as defined in the Act, con- stitutes a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. Following a Board-conducted election in 1950, the Union was certified by the Board as the exclusive bar- gaining representative for all employees in the aforesaid unit within the meaning of Section 9(a) of the Act, and the Union, since that date, has been the exclusive representa- tive of all such employees for the purpose of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employ- ment. No issue is raised as to the Union's status. 2. Bargaining history The Council has, for some time, represented a number of trucking companies in collective bargaining with the Union. These companies, so far as the instant proceedings are concerned, are, for the most part, classed as either moving and storage companies (sometimes called van lines), which handle household goods, on the one hand, and freight companies, which move general freight, on the other hand. City Transfer and one other company- H. C. & D. Moving and Storage- were unique in that they operated to a substantial degree in both lines of business. In 1963, the Union negotiated first with the freight group, and City Transfer participated, through the Council, in such negotiations; and, along with the other freight companies, City Transfer reached an agreement. This agreement was signed by City Transfer for all employees, whether engaged in moving household goods or freight, although separate wage schedules for each class of employees were attached to the agreement. However, since the wage rates of employees engaged in moving and storage work were not settled in the negotia- tion with the freight employers, City Transfer first at- tached to its 1963 agreement with the Union a wage schedule for employees engaged primarily in the move- ment of freight and later, after the Union had negotiated an agreement with employers engaged in the operation of moving and storage businesses, City Transfer added to its 1963 written agreement a schedule of wage rates for its moving and storage employees, based on the results of the moving and storage negotiations. However, City Transfer sat in only on the freight negotiations that year. i Except for possible differences in classifications of em- ployees and wage rates, the terms reached for the two em- i The evidence indicated that it was customary for City Transfer to bar- gain with the first group (where the two classes of employers did not bar- gain simultaneously) and would merely append a list of wage rates settled by the second group's bargaining. 2 It was not customary to sign a written settlement, but it was done in this instance because a mediator had been called in, and he insisted on a 39 ployer groups were uniform except for the identity of one of the eight named holidays agreed to. The 1963 contract was a 3-year term, but it contained a reopening clause for renegotiating wages in 1965. In 1965 such negotiations took place, but since the result was a flat-rate increase for all employees, no question in that year arose concerning differences between moving and storage employees and freight employees. 3. The 1966 negotiations for moving and storage agreement On January 24, 1966, the Union wrote a letter to City Transfer stating a desire to revise the existing contract, which was to expire on April 1, 1966, and it enclosed a list of proposed changes but reserved the right to amend, modify, or add to those proposals during the course of negotiations. City Transfer replied that the Council would represent it "during the negotiation of the con- tract." Apparently, the Union had sent the same notice to em- ployers in both the freight handling and in the moving and storage operations, because when negotiations com- menced in February 1966, the Council, which represented about seven moving and storage companies and nine freight companies, sought to bargain for both groups simultaneously. The Union, however, refused to do this and insisted upon separate bargaining. Rather than shuttle back and forth from meetings of one group to meetings of the other, one employer representative sug- gested deferring the negotiations for the freight group until a settlement agreement was reached with the moving and storage group. The Union assented to this and further freight negotiations were suspended. In 1966, City Transfer management representatives sat in on the Union's negotiations with moving and storage employers, but they did not attend the later freight negotiation ses- sions. A settlement agreement between the Union and the moving and storage employers, represented by the Coun- cil, was signed on June 24, 1966.2 Sometime during the following week, Roy Kitamura of the Council, who was the chief negotiator for the employers, met with Bernard Stern, the chief negotiator for the Union, and reviewed the results of the settlement. Kitamura at this time pointed out to Stern that there remained only freight wage rates to be settled for H. C. & D. and City Transfer. Although the aforesaid settlement agreement was signed by the Council for all bargaining employers who had been in the moving and storage group negotiations (other than H. C. & D.), it was the custom for each em- ployer to sign a new individual agreement. To this end, the Council, according to custom, prepared new agree- ments, using as a format the former agreements, insofar as they remained unchanged, and using the settlement agreement terms, insofar as changes or additions were reached therein, and the Council then sent the drafts to the Union for approval and signature. The evidence is undisputed that such a draft agreement was prepared by the Council for City Transfer and was mailed to the Union. However, the date when it was sent to the Union was not definitely fixed by the record. It is written agreement That agreement was signed by the Council on behalf of the employers it represented . The settlement included all but H. C. & D. (the other combined freight and moving and storage company besides City Transfer), for whom negotiations, at the Union's request, had earlier been severed. Except for freight rates , H. C & D. reached agreement with the Union on June 27, 1966 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conceded that the draft of the new agreement for City Transfer was not mailed before negotiations between the Union and the freight group commenced on July 6, 1966. The testimony of Stem, chief negotiator for the Union, concerning the date of delivery, left it in doubt. He testified at one point that the Union did not receive the draft of the City Transfer agreement until after the negotiations for the freight group had been concluded on July 26, 1966. At another point, however, he conceded that the Union could have received the draft either before or after that date. Finally he also conceded that the Union could have received the draft of the entire agreement, ex- clusive of freight rates, before the conclusion of the freight negotiations, and that it might have received separately merely a draft of the freight wage rates for City Transfer in the form of an appendix after the conclusion of the freight negotiations. Kitamura, chief negotiator for the employers' group, although uncertain of the date of mailing of the draft agreement, thought it was no later than July 15, 1966. Neither side, however, attempted to remove all doubt as to the date by producing a covering letter or other documentary evidence. Stern did admit that the draft of the City Transfer agreement was received at the same time as the drafts of other moving and storage companies rather than later when the drafts of the freight companies agreements were received. The exact date when the draft agreement of City Transfer was received could, to some extent, bear on the intention of the parties, for the Respondents contend that the agree- ment for City Transfer (except as to rates for the latter's freight-handling employees) was concluded on June 24, 1966, and that only the freight rates remained open for settlement for City Transfer at the negotiations between the freight companies and the Union, whereas it is the Union's contention that City Transfer was included, without limitation, in the freight group negotiations, thus throwing the City Transfer contract open for renegotia- tion or at least for further negotiations as to freight em- ployees, and that City Transfer was therefore bound by the settlement reached in the freight company negotia- tions. On all the evidence, I find that the draft agreement containing all terms except the wage rates for City Transfer's freight employees was received by the Union on about July 15, 1966. At the July 6, 1966, meeting, an employer's committee represented the freight employers group. The committee was composed of representatives of four of the freight companies (not including City Transfer) in addition to Kitamura of the Council, who was the chief spokesman. Stem, spokesman for the Union at this meeting, asked Kitamura what companies he and his committee represented. Kitamura replied that he would let Stern know at the next meeting.3 Stern then told the employers that the Union wanted the same terms as those reached in the van lines (moving and storage) settlement and a few other things besides. The only additional demand he listed which is of concern here was a provision for preferential seniority for stewards in layoffs and 10 cents an hour more pay for stewards over the wage rates for other employees in the same classification. This same de- mand had been made by the Union in its negotiations with the moving and storage group, but it had there been re- jected by the employers and the Union had withdrawn its 3 The reason for deferring notice of companies represented was that a meeting of freight company representatives was scheduled for July 7 to discuss among themselves the terms they desired. Some companies failed to attend, and these companies were presumed to desire no representation demand. It was initially rejected also by the freight com- panies. At the second meeting, held on July 8, 1966, Kitamura responded to Stern's request and listed the names of em- ployers he and his committee represented in the current negotiations and he also specified several that the Council would not represent. Stern testified that Kitamura named nine employers, including City Transfer, as employers that were represented. Since the others named by Kitamura were not identified at the hearing, the evidence fails to disclose whether or not H. C. & D. was one of the nine named as represented. The situation of H. C. & D. was similar to that of City Transfer in that it had (albeit apart from other moving and storage companies) reached an agreement with the Union on all matters except wage rates for the freight employees. Determination of the latter rates for H. C. & D. was deferred and the rates were to be settled in the freight negotiations. It is con- ceded that H. C. & D. did not participate in the "general" freight negotiations, but it is not clear whether or not H. C. & D. participated in the freight negotiations as to rates only or whether it was merely to accept the rates there agreed upon. I assume that it, like City Transfer, had no management representative present. When Kitamura named the nine employers represented, he did not state that City Transfer (or anyone else) was being represented only as to wage rates. At this meeting, the employers rejected the Union's proposal for steward's preferential seniority and extra pay, recounted problems of the industry, and requested on behalf of the employers a number of variances from the terms of the agreement proposed by the Union, all more favorable to the freight employers. After a discus- sion of noncost items that day, the parties again met on July 13, 1966, and a discussion took place concerning cost items. One provision which the employers wanted was a 2-day waiting period before sick leave became ef- fective unless the employee was hospitalized. In the mov- ing and storage settlement, the Union had succeeded in reducing the waiting period to only 1 day starting in 1967. Regarding such differences, Stern, for the Union, asked Kitamura, for the employers, how the latter proposed to handle such differences between the moving and storage agreement and the proposed freight agreement with respect to a company like City Transfer, which had al- ready agreed to terms wherein the freight employers sought a change. Kitamura replied that he was not sure, but that "we might wind up with two agreements," as Kitamura quoted himself, or that "we might have to have two agreements, one for the van lines and one for the freight," as Stern quoted Kitamura. Kitamura did not ex- plain this remark to Stern, and Stern sought no explana- tion. The final session of the freight negotiations began on July 25 and went on after dinner far into the night and early morning hours of July 26. When the employers, after a caucus, returned and announced their assent to all other provisions contained in the agreement reached between the Union and the moving and storage compa- nies (not already otherwise settled in the freight negotia- tions) except the steward's clause, the Union's president, Arthur Rutledge, replied that in that case the freight em- ployers did not have a settlement and would probably and so were not represented by the Council There is no evidence that City Transfer management representatives attended this meeting or, if they did, what they might have said regarding City Transfer's desires. CITY TRANSFER CO. 41 have a strike in the morning. The employers' representa- tives then walked out to the hall, leaving a group of union representatives conferring privately in Rutledge's office. When the latter came out of that office into the waiting room, Kitamura was waiting there, the remaining em- ployer representatives being still in the hall. Kitamura then told Rutledge, in the presence of Stern and the other union representatives who had attended the negotiation session that night (as stipulated by the parties at the hear- ing): "Okay. We have got a deal," meaning that the freight employers accepted even the steward's provision. Following the meeting- of July 25, 1966, Kitamura drafted new written agreements for the freight employers who were represented in the negotiations (other than City Transfer), incorporating the changes reached in the oral settlement, and mailed these drafts to the Union for ap- proval and signature. With these drafts, Kitamura in- cluded for City Transfer an appendix listing rates of pay for employees in City Transfer's freight operations which was to be added to the draft agreement for City Transfer which Kitamura had previously mailed to the Union with the batch for the moving and storage companies. That draft already had appended to it an exhibit listing the rates of pay of employees in the moving and storage opera- tions. When he saw the freight contract drafts, Stern telephoned Kitamura and asked where the shop steward language was for City Transfer. Kitamura replied that the parties had already reached an agreement for City Transfer except for the freight wage rates and that all that remained to do was to attach the schedule he had just sent. Stern told Kitamura that this had been his un- derstanding, too, until Kitamura had said that he represented City Transfer for freight negotiations (at the July 8 negotiations). Stern did not testify that he com- plained of anything except the omission of the steward language which had been agreed to by the freight em- ployers at the last negotiation session. There was at least one other difference between the freight agreement and the moving and storage agreement, previously reached. Under the moving and storage agree- ment, the employer had to give 48 hours' notice before changing starting time, whereas the freight operators had succeeded in inducing the Union to reduce the required period of notice to 24 hours. Regarding this change, Kitamura had met with Sidney Jensen, secretary and manager of City Transfer, on an unidentified date, but be- fore agreement was reached thereon, and asked him if his Company would be put to a competitive disadvantage as a result of the difference. Jensen replied that it would not. No attempt was made by Kitamura to induce the Union to make a change in this notice provision of City Transfer's agreement. Kitamura testified that his reply to Stern's question as to how the freight employers' proposed changes would be handled with respect to City Transfer (i.e., "We may wind up with two contracts.") was one that had not been authorized by City Transfer and that he had had in mind only that, if the freight employers had obtained a benefi- cial provision not obtained by the moving and storage em- ployers, he intended to seek to persuade the Union to agree to a modification of the City Transfer agreement. There is no evidence that he had been requested by City Transfer to do this. Kitamura testified that City Transfer had authorized the Council to negotiate only for rates of pay during the freight negotiations. Jensen, secretary and manager of City Transfer, similarly testified. The Council's authorization to represent City Transfer for freight wage rates was not reduced to writing. No new letter concern- ing the Council's authorization or limitation of authoriza- tion was written to the Union by City Transfer in connec- tion with the freight negotiations. The only express notice to the Union of the Council's authority to bargain for City Transfer was given by the letter from City Transfer dated February 3, 1966, hereinbefore mentioned. 4. Arguments and conclusions The General Counsel contends that City Transfer, by refusing to sign an agreement containing the clause agreed to by freight employers concerning steward's preferential seniority and extra pay, had refused to bar- gain within the meaning of the Act. The Respondents' position is that (except for freight wage rates) City Transfer had already reached agreement with the Union in the moving and storage negotiations and had a contract complete except for freight wage rates; that the Council had been given no authority to bargain anew with the Union on behalf of City Transfer at the freight negotia- tions; that the Council had only residual authority to complete the terms of the 1966 contract by negotiating the freight wage rates and adding an appendix; that any inference to the contrary to be drawn from Kitamura's failure to mention that negotiations for City Transfer were to be limited to wage rates or from his statement about the possibility of winding up with two contracts was unwarranted. At the outset, I observe that City Transfer employees, both moving and storage and freight, are in a single bar- gaining unit. Neither City Transfer nor the Union would have been obliged to bargain more than once for an agree- ment concerning employees in a single unit. City Transfer may have contributed to the idea of separate bargaining for the two types of employees by authorizing the Council to bargain for it in group negotiations. But in 1966 the Union made separate bargaining for the two types of em- ployees virtually mandatory by refusing to bargain with moving and storage employers and freight employers at the same time. The Union did not even suggest separate bargaining with City Transfer, as it had not only sug- gested but had required with H. C. & D., the other com- bined freight and van line business. The, problems here presented would not have arisen if the Union and City Transfer had, independently of other employers, bar- gained for all employees in the appropriate unit.4 The is- sues arise here only because the group bargaining prac- tices required wage rates to be settled separately for two types of employees. Such afterthoughts do not, of course, settle the issues here, but the singleness of the unit is a factor to be considered in determining the intentions of the parties. Before deciding whether or not the Union and City Transfer had arrived at a new agreement at the freight negotiations, as contended by the General Counsel, I find it necessary to dispose of the question of the nature of the authority of the Council to bargain for City Transfer at 4 It may be noted that the Union sought unsuccessfully to require the addition of its steward provision to the H. C & D. agreement also (although H. C. & D. admittedly was not represented at the freight negotiations, unless it was represented there for wages alone) by arguing that the steward provision came under the topic of wages and thus should be included in the wage schedule for H. C. & D. freight employees. 42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the freight negotiations - whether it was authorized to bargain other than for wage rates of the freight em- ployees. Both Kitamura and Jensen denied that the Coun- cil had been given any authority at any time, other than to bargain for wage rates of freight employees . No evidence was adduced to show any express authority different from that customarily granted to the Council by City Transfer, as previously set forth. If any actual authority was given the Council to negotiate a new or separate agreement for City Transfer in the freight negotiations , such authority was not, there- fore, an express authority . Hence , if actual authority is to be found, it must be based on an inference drawn from all the circumstances . Among the circumstances to be con- sidered, besides the singleness of the unit , is the fact that, in the past, City Transfer had not negotiated two agree- ments, one for its freight employees and the other for its moving and storage employees, and it had never renegotiated terms of a contract already reached. When- ever it had participated in negotiations of a second group of employers, it had done so only to settle wage rates left unsettled in the bargaining with the first group . Also to be considered is the fact that the only notice given to the Union in 1966 by City Transfer, itself, concerning the authorization of the Council to represent it was in its letter of February 3, 1966, written in response to the Union's expression of desire "to revise its existing con- tract" with City Transfer. In neither the Union's letter nor City Transfer's letter of reply was anything said about more than one contract. Apparently, it is conceded that, before July 8, 1966, there was no doubt concerning the status of City Transfer's new agreement and of the extent of the Coun- cil's authority to represent City Transfer. It was assumed that only wage rates for freight employees remained to be settled. And by July 15, 1966, City Transfer demon- strated its commitment to the agreement reached at the moving and storage negotiations by sending the Union a draft thereof for approval and signature. The Union did not acknowiedgc or even mention this draft of the agree- ment until after the end of the freight negotiations late in July. What, then, did City Transfer do to cause the Union to believe, as claimed by the Union, that City Transfer had broadened the Council's authority? If City Transfer can be inferred to have done anything to change that authori- ty, the inference must be drawn from some act or failure to act on the part of City Transfer, itself. Since no affirm- ative act has been shown, the General Counsel and the Union, must, I assume, be of the opinion that City Transfer owed an affirmative duty to notify the Union again before, or at the start of, the freight negotiations that the Council had authority to negotiate only for one contract and that all but freight wage rates had already been negotiated. I find no such duty existed. No evidence was adduced to show that City Transfer knew of the statements of Kitamura, which, the Union claims, led it to believe that the Council was authorized to negotiate an entirely new agreement , either to replace the one already negotiated or to apply separately to freight employees alone. Silence cannot be taken as as- sent where City Transfer was never shown to be under a duty to speak. It had no representative present at the freight negotiations to hear Kitamura's utterances which the Union and the General Counsel claim had the effect of binding City Transfer to a changed authorization, and no evidence was adduced to prove that either the Council or the Union had apprised City Transfer of Kitamura's statements or to show that City Transfer had otherwise been informed thereof. The General Counsel asked Kitamura if he was ac- customed to making statements which were unauthorized, and Kitamura replied that he was not. I do not, however, consider Kitamura's answer to be enough to prove that City Transfer had authorized those state- ments. Perhaps the General Counsel believes that Kitamura's answer that he did not customarily make unauthorized statements , taken in conjunction with the evidence that Kitamura held a conference with Jensen of City Transfer concerning the expectation that the Union would agree to a 24-hour notice of change in starting time (instead of a 48-hour notice, as agreed in the 'moving and storage settlement), would give rise to an inference that City Transfer had authorized the Council to represent it on matters other than freight wage rates . But there is no evidence that City Transfer urged Kitamura to seek such a change or any other change in its existing agreement. The evidence is, I find , insufficient to warrant an in- ference that City Transfer actually conferred authority upon the Council to negotiate either an entirely new agreement or a separate agreement for freight employees. It follows that, if authority had not been conferred, either expressly or impliedly, on the Council to bargain 'for a new, or a separate, freight contract, City Transfer, as principal, would be bound by an unauthorized act of its agent only if it had clothed its agent, the Council, with an appearance of authority which was relied upon by the Union. But such evidence would have to show that the Union had a basis for a belief that the Council's authorization had been changed by City Transfer. Such belief should not rest only on unauthorized statements of the agent. An agent may not clothe himself with apparent authority where the principal has not contributed to such appearance. True, a principal might be bound to a third person if he secretly limits his agent's authority and if the agent acts within his known authority but exceeds the secret limita- tion. Can it be said here that City Transfer had secretly limited the Council's authority at the freight negotiations? There is no basis for such a conclusion. The General Counsel's argument appears to be, not that City Transfer had secretly limited the Council's authority at the freight negotiations , but that City Transfer had secretly ex- panded the Council's authority to bargain for more than wage rates of its freight employees. Stern, the Union's representative, admits that, at the outset of the freight negotiations , he had been of the opinion that the Union already had an agreement with City Transfer for all terms except freight wage rates. Yet it was not any act of City Transfer that altered his opinion. He testified that his opinion was altered by two or three statements of Kitamura: (1) Kitamura's state- ment at the July 8 meeting that the Council represented City Transfer along with other freight companies, without specifically stating that the Council's authority was limited to wage rates in the freight negotiations, and (2) Kitamura's reply to questions put by Stern as to how Kitamura would handle the freight employers ' proposals which were more beneficial to such employers than were the terms of the agreement reached with the and storage employers in respect to a company like City Transfer. It will be remembered that Kitamura's reply was that he did not know but that they might wind up with two contracts. Since no official of City Transfer was present, the Union had no right to suppose, without further CITY TRANSFER CO. evidence, that City Transfer knew of such statement, and Kitamura's statement, apparently beyond his authority, is not alone enough to justify a belief that he had extra authority. As previously pointed out, not only was there no evidence to show that City Transfer knew of the aforesaid statements made by Kitamura, but there was also no evidence to show that City Transfer was even ex- pecting to gain the several advantages sought by other freight companies at the freight negotiations. Kitamura testified that he actually did not believe that he had a right to negotiate changes in the terms of the agreement already reached by City Transfer and the Union at the moving and storage negotiations, but he testified that, had the freight employers gained ad- vantages which were not in the moving and storage agree- ment, he would have tried to get the Union to modify City Transfer's agreement so that City Transfer would not have been at a competitive disadvantage. There is no evidence that City Transfer had implanted this idea in Kitamura's mind. So far as appears, this was merely Kitamura's idea of the proper solicitude for the welfare of a member of the Council, and it led him to make an unauthorized statement. Insofar, therefore, as the Union or the General Counsel may contend that City Transfer was bound by the Council's implying that it was City Transfer's agent to make either a new contract or a second contract (even assuming for the sake of argument that Kitamura's utterances could have implied this) under the theory of an apparent agency, I find that the circum- stances no more prove an apparent agency than they do an implied agency. Furthermore, in order to invoke the theory of an ap- parent, as distinguished from a factual, agency, the General Counsel would have had to establish that the Union had relied on the misimpression caused by ap- pearances. I find here no such reliance. It is quite ap- parent that Stern did not, at any point in the freight negotiations, commit the Union to a position with respect to a new or to a second contract for City Transfer until after the Council, on behalf of the freight employers who were negotiating for a full contract, had accepted the Union's proposal regarding steward's seniority and pay. Even if there had been a provision in the agreement previ- ously negotiated with the moving and storage group that the Union might have regarded as of material value, let us say of more value than the steward's clause, the Union had not, at any point during the freight negotiations, placed itself in a position where it would have had to forego the more valuable provision of the earlier agree- ment in order to claim the benefit of the steward's clause. Stern's conduct at the freight negotiations appeared designed to avoid clarification of the Council's actual authority as agent for City Transfer and to keep the Union in an uncommitted position where the Union might claim the more favorable result, whether of the agreement earlier negotiated or of the agreement resulting from the freight negotiations. It will be observed that Stern avoided putting a pointblank question to Kitamura as to the Council's authority, and he certainly made no effort to'learn from' City Transfer of any change it had made in 43 the Council's normal authority. I can only regard such silence on the Union's part as evidence of an attempt to gain a tactical position where the Union could pursue the better of two bargains. The silence by the Union was carried to a point of neglecting even to ascertain the mechanics of applying the steward's clause to the situation at City Transfer. If the Council had, in truth, had authority to negotiate more than wage rates for freight employees, was the result of the freight negotiations to be taken as a new agreement for all employees in the bargaining unit or only as one ap- plying to the freight employees? Even Stern could not have been sure of this. City Transfer had two stewards - one who worked almost entirely on household goods, the other who worked 52 to 58 percent of the time on freight and the rest of the time on household goods. If the freight negotiations were held to have resulted in a separate agreement for freight employees only, would the so-called freight steward at City Transfer be paid only while he was a freight employee and not while he was an employee working on household goods? If City Transfer had in- tended to bargain on all terms of a new agreement or even only for a separate agreement for freight employees, it certainly would have required an answer to such questions. Hence, even if an apparent agency could be said to exist in this case, it does not appear that the Union and City Transfer had a clear meeting of the minds neces- sary to conclude a contract. On all the evidence, therefore, I conclude and find that Respondent , City Transfer had, in fact, agreed to sign the only agreement negotiated on its behalf- the one reached at the negotiations for moving and storage employers, which was incomplete only as to wage rates of freight em- ployees - and that, hence, it did not refuse to bargain by declining to insert in that agreement the steward's clause won by the Union from the freight employers who were bargaining for a complete contract for themselves. Since the Council's function was only to negotiate and to draft the agreement actually reached between City Transfer and the Union, and since it has done so and has furnished the Union with a draft of an appendix showing all wage rates for City Transfer's freight employees, I find that the Council, likewise, has not refused to bargain within the meaning of the Act. CONCLUSIONS OF LAW 1. Respondent, City Transfer Co., Ltd., is an em- ployer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondents did not violate Section 8 (a)(5) or (1) of the Act as alleged in the complaint. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that the complaint be dismissed in its en- tirety.