General Transformer Co.

360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Transformer Company, and International Union , Allied Industrial Workers of America, AFL-CIO, and Local No . 305, International Union , Allied Industrial Workers of America, AFL-CIO, Party of Interest . Case 25-CA-2580 October 28, 1968 DECISION AND ORDER On February 21, 1968, Trial Examiner Stanley N Ohlbaum issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Re- spondent filed exceptions to the Decision and a supporting brief, and the Charging Party filed cross- exceptions, a brief in support thereof, and a brief in opposition to Respondent's exceptions General Counsel filed a brief in support of the Trial Exam- iner's Decision and Respondent filed a brief in opposition to the Charging Party's cross-exceptions. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed i The rulings are hereby affirmed The Board has considered the Trial Examiner's Decision, the exceptions, the cross-excep- tions, the briefs, and the entire record in the case, and hereby adopts the findings,' conclusions, and recom- mendations of the Trial Examiner, except as modified herein. ORDER Pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial - Examiner, as modified below, and orders that Respondent, General Transformer Company, Fowler, Indiana, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified. 1. Delete paragraph 1(e) from the Trial Examiner's Recommended Order and renumber all subsequent paragraphs accordingly. 2. Delete the fourth indented paragraph from the notice and renumber all subsequent paragraphs ac- cordingly IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed, insofar as it alleges violations not found herein. i CHAIRMAN MCCULLOCH and MEMBER FANNING, dissent- ing. The basic issue in this case is whether the certified International Union (AIW) voluntarily relinquished its representative status in favor of its Local 305. If, in fact, Local 305 was substituted for the International, Respondent did not violate Section 8(a)(5) when it bargained with and executed a collective-bargaining agreement with the Local. Contrary to the majority, we would find that such a substitution was volun- tarily effectuated by the parties. The most persuasive evidence that such a substitu- tion was intended is to be found in the agreements executed by the parties. The first collective-bargaining agreement relevant to this case was executed by Respondent "and Local No. 305, International Union, Allied Industrial Workers of America, AFL- CIO," was signed by four members of the Local union, and was only "approved as to content and form" by the International.' The International Union, in short, chose not to become a party to the agreement. Such an intention is reflected, not only in the agreement itself, but in the intraunion documents which explain the purpose of the pertinent contract language. The opening sentence, which sets forth the names of the contracting parties, and the phrase "approved as to content and form" are standard phrases recommended by the International for inclu- sion in all contracts executed by affiliated locals. Explaining the purposes of this language, an "Instruc- tion Sheet For Determining What Clauses Are To Be Negotiated" states: The International Union .. in participating in the negotiation of this agreement, through its direct representatives, has acted merely as an agent for the employees covered by this agreement, and not as a principal, or as a party to this agreement. It shall under no circumstances be liable for any strike, breach or other default.... The signature of the direct representative of the International Union appearing hereinafter is evidence of approval of the agreement by the International Union, but does not make the International Union a party to such i Respondent 's request for oral argument is hereby denied as the record , the exceptions , and the briefs adequately present the issues and the positions of the parties 2 The Trial Examiner found that Respondent violated Section 8(a)(i) of the Act when, on June 7 , Plant Manager Sturtz told employees that if they rejected Respondent's proposal for an extension of the contract , "you won 't get the money , probably have to live out the life of the present contract " Contrary to the Trial Examiner, we find that in this statement , Sturtz did nothing more than explain the 173 NLRB No. 61 terms of Respondent's offer in response to an employee's question We conclude , therefore, that the statement contained no threat of reprisal and was not violative of Section 8(a)(1). 3 In contrast, when , in other negotiations , AIW has intended to become a party to the contract , it has spelled out such an intention explicitly by providing in the opening sentence that the agreement was between the Company and AIW and the Local Union Such agreements have been signed by the AIW representative with no notation of approval as to content and form. GENERAL TRANSFORMER CO. agreement, nor liable in any way thereunder.4 The statements made during the organizing cam- paign preceding the signing of the agreement provide further evidence of relinquishment. Both orally and in campaign leaflets, employees were told that if the International Union won the election it would charter a local union; that the "local union is the contracting party" with "full power to negotiate wages and working conditions;" that the local would "enjoy complete autonomy," that the International and its representatives were "pledged to act in their advisory capacity", and that "the final decision of acceptance or rejection of the contract is solely in the hands of the local union." In short, the placement of final bargaining authority in the local union, with effective control in the members themselves, was the basis of AIW's appeal to the employees in its organizaing campaign. The policy of transferring full bargaining authority to local unions after the International has been certified is reflected in the International Union's current constitution. Previous constitutions provided that the International Board could negotiate collec- tive agreements subject to approval of the members involved. Such constitutions also specified that collec- tive-bargaining agreements were to become effective only when signed by an International representative. In marked contrast, the current constitution provides that "Local Unions . . constitute the basic organiza- tional unit of the International Union;" that the Local, rather than the International, is "the highest authority for handling contract grievances,"5 that contracts between local unions and employers shall be signed by the local presidents "and such other officers or committeemen as the Local Union may designate." All of these factors persuade us that in accordance with its usual practice, AIW in this case fully intended to relinquish its representative status in favor of Local 305. Having chosen to absolve itself from contractual liability by not becoming a party to the contract, we do not believe that AIW is entitled to demand that it be bargained with as if it were an actual party to the contract. In contending that no relinquishment occurred, General Counsel and AIW rely heavily on the fact that the International representative was at all times the key negotiator for the Union, that he spoke for the Union at the negotiating table, that he prepared the Union's proposals and that he processed, and has continued to process important grievances. The Gen- eral Counsel and the AIW contend that this degree of participation is inconsistent with the idea that the International Union relinquished its certification. We disagree. The local bargaining committee in this case was composed of rank-and-file employees who had little experience in processing grievances or negoti- ating contracts. It is logical to expect that such a local committee will turn for assistance to the International 361 representative in the same way that a private party often turns for assistance to his attorney. The fact, however, that the International representative domi- nates negotiations and receives all of the employer's proposals, does not without more make the Interna- tional a party to the contract any more than an attorney negotiating for his client becomes a party to his client's contract. For all of these reasons, we would find that AIW relinquished its status as bargaining agent to Local 305, and, therefore, by bargaining with the Local 305 for modifications of the existing contract, Respond- ent did not violate Section 8(a)(5) of the Act. 4 Clearly , Respondent cannot insulate itself from contractual liability simply by stating that it does not intend to be liable. Nor can it use intraunion communications to contradict or vary the terms of the written contract . Such communications can, however , be used to clarify the intention of the parties and resolve ambiguities in the contractual language. 3 Corbin, Contracts § 579 (1960). 5 In explaining the purpose of this provision , a delegate to the Union's convention stated that it was necessary "to cover some disputes that the International has had in court." TRIAL EXAMINER'S DECISION I PRELIMINARY STATEMENT STANLEY N. OHLBAUM, Trial Examiner This unfair labor practices proceeding, instituted under the National Labor Relations Act, as amended, 29 U S.C A. Sec 151, et seq ("Act"), by the Regional Director for Region 25 of the National Labor Relations Board,' was heard by me in Indiana, at the County Courthouses in Fowler and Lafayette, on March 29-31 and May 16-19, 1967, with all parties except Local No. 305, International Union, Allied Industrial Workers of Amer- ica, AFL-CIO ("Local 305") appearing and participating throughout by counsel.2 All parties have been afforded full opportunity to present evidence, both testimonial and docu- mentary, to cross examine witnesses, and otherwise be heard, to make relevant applications, to settle or adjust their differences,' to propose findings of fact and conclusions of law, and to submit briefs. Final submission of briefs and supplemental legal memoranda, which were informative as well as voluminous, was in October 1967,4 after several time extensions on request of the parties. The entire records and briefs having been carefully con- sidered, upon the basis thereof and my observation of the demeanor of the witnesses, I make the following 1 By complaint dated December 30, 1966, based upon a charge filed on the previous August 4 by the above International Union Unspecified years are 1966 throughout 2 Although named and served , Local 305 did not appear 3 Administrative Procedure Act, 5 U S C. Sec 554(c). 4 A further communication from Respondent 's counsel, dated January 23, 1968, on notice, has also been considered and attached to its brief. 5 Hearing transcript as corrected by my January 17, 1968, order on notice and my further order of January 31, 1968, granting Respond- ent's January 24, 1968 , motion. 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS AND CONCLUSIONS II PARTIES, JURISDICTION At all material times, Respondent General Transformer Company has been and is an Illinois corporation with a plant in Fowler, Indiana, where it has been and is engaged in manufacture, sale, and distribution of transformers, coils, and related products During the representative 12-month period immediately preceding issuance of the complaint, Respondent manufactured, sold, and shipped directly in interstate com- merce from that plant to points outside of Indiana, finished products valued in excess of $50,000, also, dunng the same period, Respondent in the course and conduct of its business operations purchased, transferred, and delivered to that plant directly in interstate commerce from points outside of Indiana goods and materials valued in excess of $50,000 I find that at all material times Respondent has been and is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and Charging Party Interna- tional Union, Allied Industrial Workers of America, AFL-CIO ("International"), and Party in Interest Local 305, have each been and are labor organizations within the meaning of Section 2(5) of the Act. I find that assertion of jurisdiction herein is proper. III. ALLEGED UNFAIR LABOR PRACTICES A. Issues The issues tendered are whether Respondent employer, in violation of Section 8(a)(5) and (1) of the Act, failed to bargain collectively with International, and threatened bargain- ing unit employees that if they did not accept an arrangement proposed by Respondent they would receive no wage in- crease.6 6 The charge filed by International on August 4 succinctly frames the basic issue On or about and after June 19, 1966, during the term of the current collective bargaining agreement which runs until October 21, 1968, the employer by-passed the certified bargaining agent [i e., Interna- tional) and negotiated and entered an extension of the collective bargaining agreement with the employees of the employer after the certified bargaining agent had notified the employer it would not agree to any extension of the agreement, and which extension purports that it is to be in effect until December 13, 1970. Since on or about and after June 18, 1966, the employer has failed to bargain in good faith with the designated representatives of his employees. By these and other acts, the employer has interfered with, coerced and restrained its employees in the exercise of their rights guaranteed under Section 7 of the Act and in violation of Sections 8(a)(1) and (5) of the Act Respondent's answer alleges affirmatively that International was "super- seded" by Local 305 as exclusive collective-bargaining agent of the Fowler unit employees on October 26, 1960 Respondent thus contends that since Local 305, rather than International, was the duly authorized exclusive collective-bargaining representative of Respondent's unit employees, the 1966 extension agreement involved no violation of the Act The complaint and a supplementing bill of particulars also speak of threats by Respondent to its employees of loss of future benefits or of withdrawal of wage increase offers by Respondent unless the employees sanctioned extension by Local 305 of the subsisting collective agree- ment in the face of International's explicit refusal to do so. 7 The Fowler plant employs around 120 employees (over 90 percent females) in the unit here, the Essex plant at Logansport, about 35 miles B Background and Facts Found Few of the basic facts are in substantial dispute, it is, rather, their operative legal effect which is sharply contested Credited evidence establishes Respondent General Trans- former Company is a wholly-owned subsidiary of Essex Wire Corporation of Fort Wayne, Indiana, which has 55 plants in the United States and Canada' After an organizing campaign followed by an election under the National Labor Relations Act, International was certified by the Board on September 12, 1960 as exclusive bargaining representative of an appro- priate production and maintenance unit of Respondent's Fowler plant employees This certification has not been revoked or amended by the Board, nor has there been any application to do so or to decertify, nor have the unit employees withdrawn their designation of International or designated a different bargaining representative 8 In accordance with International's practice "to conduct an organizational campaign . . and if successful, to charter a local union,"9 on October 5, 1960, about 3 weeks after Board certification of International, the latter chartered Local 305 as its subordinate local at Respondent's Fowler plant. Following negotiations, a collective agreement' 0 regulating the wages, hours, and work conditions of Fowler unit employees was entered into on October 26, 1960, effective until October 21, 1965. The agreement recites that it is between "Chicago Standard Transformer Corporation, Fowler, Indiana plant, its successors and assigns" and "Local No 344, International Union, Allied Industrial Workers of America, AFL-CIO," which is recognized as the unit employees' exclusive collec- tive-bargaming agent 1 ' The 1960-65 agreement contains typical provisions including that permitting International participation in grievances unresolved at the shop level, a provision barring unilateral reopener for the life of the agreement, and a provision for automatic renewal from year to year after expiration of the initial term, in absence of advance away, employs around 700 employees, and a non-Essex plant at Crawfordsville (65 miles away) employs some 400 employees, in the same or comparable job classification category. 8 As already indicated, Respondent contends that under all of the circumstances on and since October 26, 1960 International was "superseded" (Respondent's Answer, par. "7") as exclusive collective- bargaining representative by Local 305. This contention raises the principal issue here 9 Credibly so described by International Regional Representative Lyle Daugherty, testifying as General Counsel's witness Apparently this practice was not or may not have been invariable, since (as stipulated) at Logansport, Indiana (Essex "RBM" plant) it was a local union (Local 668) of United Automobile Workers which was certified. International Union, United Automobile Workers of America, AFL (AFL "UAW") was the predecessor of International Union, Allied Industrial Workers of America, AFL-CIO ("AIW," Charging Party herein), which in suc- ceeding on July 1, 1956 changed the International name from UAW to AIW "Jurisdiction" of International extends to all branches of automobile, aircraft, tractor, farm implements, and related industries and parts-and-tool-supplying industries (Resp Exh 3, art. 4, pp. 13-14). 10 G.C. Exh. 5 11 So on original (G C. Exh 5), with the typed number "344" in the preamble as well as signature overwritten as "305." The dues checkoff provision (art II , subd 4) likewise requires the employer to remit dues of "Local No 344" of International. At the hearing it was explained by International Representative Daugherty that the references to "Local No 344" were in error, since "after the original contract was signed and the local union was chartered, when the charter came out we discovered that the local union charter was as Local No. 305." I GENERAL TRANSFORMER CO notice of termination At the conclusion, after reciting that "the parties hereto have hereunder set their hands and seals the date and year first written above," the agreement is signed by Respondent "Local No 344" (through its President and Bargaining Committee members), and International (through its Regional Representative Daugherty) The signature of International is preceded by the words "Approved as to Content & Form "' 2 It is undisputed that the agreement was signed by all at the same time. Credited testimony of Respondent's witness Wildman (former Essex labor counsel who negotiated and signed the 1960 agreement for Respond- ent) establishes that the 1960 Fowler agreement was "with little or no discussion" patterned on if not practically copied from a collective agreement which had recently been negoti- ated at Essex's Peru, Indiana plant, with no question raised about the form of the subscriptions at the end of the agreement. On August 10, 1961, at the sole instance of International Representative Daugherty (to Respondent's then Plant Man- ager Stanger), a "Supplemental and Correction Agreement"' 3 was executed, correcting the misnomers of "the name of the Company and Local No. of the Union." 14 This was signed by the Company and Local #305, Allied Industrial Workers of America, AFL- CIO, By /s/ Lyle Daugherty Reg Rep. By /s/ Robert L Riefel is The testimony of International Regional Representative Daugherty establishes that, as one of 12 or 13 salaried International Representatives in his Region 8, his duties are to "police the contracts, process grievances, present cases to arbitration, do organizational work," as well as to formulate bargaining proposals and engage in collective negotiations. During the life of the parties' corrected 1960-1965 agreement, as well as thereafter, Daugherty did this, visiting the Fowler plant from time to time to "run a general check on the problems, and . . on the plant" in order " to make sure that the contract was being lived up to." He also discussed and resolved problems with plant and Local officials, as when he instructed the Local to process a discharge grievance to arbitration, the arbitration being presented to the arbitrator by Daugherty personally; when Essex Director of Industrial Relations Gallucci handled with him the matter of classifica- tion of reed coaters, with the Company agreeing to be bound retroactively by findings of an International staff job evaluator (C.P. Exh. 13), and when Daugherty approved Plant Manager Sturtz's hiring of part-time employees.' 6 Respondent' s witness Sturtz testified that although "for the most time" discussion of "day to day plant problems and grievances" has been with Local 305 President Overbey and the local bargaining com- mittee, Daugherty visited him and "talked to me about plant problems rather periodically, I would say even every two months." 12 According to International Regional Representative Daugherty, "This is the language we always used in accepting , ratifying, and approving contracts on behalf of the International Union . This is the way we have always been informed to sign them on behalf of the International Union Ever since I first started working for the International Union.. [ by] every regional director since then." 13 G C. Exh 6 14 Id. I e., in the case of the local, from 344 to 305 15 Riefel was Local 305 vice president at the time 16 Although disputed by Sturtz, I credit Daugherty as to this, particularly in light of corroborating testimony by Local 305 President 363 With regard to the procedural pattern followed in negoti- ating collective agreements, International Representative Daugherty testified credibly and with substantial corroborative support, that the "method used in all instances" has been for him (Daugherty) to "dr[a]w up the proposals for the contract, present[ed] it to the company, and g[i] ve copies to the [local bargaining] committee to negotiate on this basis," although at times he has consulted with the local bargaining committee before taking positions with the employer. At times, but not invariably, International negotiates even before a relevant local is chartered, but always reports on the negotiations to the local membership. As International Repre- sentative, he has on occasion entered into agreements with management without approval of the local and has "over- rule[d] a [local] negotiating committee because of what [I] consider to be the policy of the International." During the course of negotiations he consults or caucuses with the local bargaining committee, at the bargaining table he is "usu- ally ... the leading spokesman" for the employees, the local bargaining committee "depend[ing] on me to carry the ball for them." Shortly before expiration of the parties' corrected 1960 collective agreement, notices of termination and reopener were given by International and Local 305, by International to Respondent and Federal Mediation and Conciliation Service, and by Local 305 to Respondent-the wording thereof (as testified by Local 305 President Overbey) suggested by International Representative Daugherty In response to these notifications (including that by Local 305), International Representative Daugherty was contacted by Walter Schrodi, an attorney for Respondent or its corporate parent (Essex), and a negotiation meeting arranged About 3 negotiating meetings ensued, in September-October, 1965, attended by Respond- ent' 7, International Representative Daugherty, and Local 305 ' a With each of these bargaining sessions arranged directly between Daugherty and Schrodi, and with Daugherty the employees' principal spokesman, in Daugherty's words At the outset of the meetings, I had outlined a prepared statement setting forth the changes, proposals that we wanted insofar as the contract was concerned, and I sent these out to the [Local 305] bargaining committee telling them that these were the things that we wanted to change so far as the [existing] contract was concerned These were the benefits that we wanted The outcome of the parties' Fall 1965 negotiations was a memorandum-type instrument' 9, captioned "Supplemental Agreement," which after calling attention to the 1960 agree- ment and reciting that "the parties are desirous of amending said agreement," is confined to setting forth the amendatory provisions (dealing principally with wages, holidays, and insurance coverages) and stating that the term of the existing (1960) agreement as thus amended is extended for 3 years, to October 21, 1968. (As credibly testified by Daugherty and Overbey that when Sturtz talked to Overbey about part-time employ- ees, Sturtz admitted having discussed this matter with Daugherty before acting on it. 17 By Walter Schroth, Essex attorney, Fowler Plant Manager Gerald Sturtz , Fowler Plant General Foreman John Jones, and, at times, Fowler Plant Foreman Robert Smith 18 By Local 305 President Stewart Overbey , and that local's bargaining committee members Rosa Sells, Norma Cadman , and Marge Flowers 19 G.C. Exh. 7. 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD corroborated by Local 305 Bargaining Committee Chairman Sells, during negotiations, Daugherty had opposed another 5-year contract and had indicated to Company spokesman Schrodi that, in accordance with International policy, a 3-year term was the limit.) This memorandum-type agreement was signed by Respondent and Local 305 only Upon the record as a whole, particularly in view of what actually transpired, I credit Daugherty's testimony that this instrument was not signed by him "Because it was the understanding between Mr. Schrodi and myself [Daugherty] that when the complete contract was typed in its true [i e , complete provisions] form, then, we would sign the contract." Daugherty in fact did so, when the 1965-68 contract20 was fully typed in complete provision from-r.e., the 1960 agreement as amended by the 1965 amendatory memorandum instrument, so that complete understanding of collective agreement governing 1965-68 was possible without the necessity of resorting to and comparing both the 1960 agreement (G C Exh. 5) and the 1968 amendatory memorandum-type instrument (G.C. Exh. 7). When Daugherty thus signed the completed 1965-68 agree- ment (G.C. Exh. 8), in January, 1966, a few days after Local 305 signed it, it was backdated to October 21, 1965 (the date of the short memorandum-type instrument, G.C. Exh. 7). The format of the 1965-68 agreement , including preamble and signatures , is for practical purposes identical to that of the described 1960 agreement It includes a no-strike provision. Some 5 months later, in May 1966, Frank Gallucci, Essex Vice-President for Employee Relations ,21 asked International Representative Daugherty to meet with him. They did so, privately on May 26, 1966 , near Wabash, Indiana. Gallucci told Daugherty that because of serious personnel turnover and recruitment problems at the Fowler plant, upward revision of wages there was imperative.2 2 Daugherty-who, as well as Local 305 President Overbey and individual Fowler employees, apparently had "continually been on the company about the wages being entirely too low"-readily agreed to the necessity for raising wages in order to stem a tide of employee departures to neighboring plants paying more money. How- ever, Daugherty demurred at the condition "insisted on" by Gallucci that the existing collective agreement be extended for a further 2 years beyond its expiration (1968), to 1970, thereby converting it into a 5-year contract.2 3 Daugherty told Gallucci that he was under express warning from his superior, International Regional Director LaPage, that any International Representative who accepted a 5-year contract would be fired. When Gallucci offered to call and "take care of Mr LaPage," Daugherty said he would acquaint LaPage with their conversa- tion and the proposal made Gallucci had brought with him to his conference with Daugherty a written draft "Supplemental Agreements24 which Gallucci had prepared, and he gave a copy of it to Daugherty.2 5 In effect it raises the wage scales in the subsisting 1965-1968 collective agreement and extends it for somewhat over 2 years In his testimony, Gallucci conceded that by this proposed modification-extension agree- ment (G.C. Exh. 9) which he presented to Daugherty at their May 26 rendezvous, Respondent was "intending to change or proposing to change," on a proposed effective date of June 18, "the subsisting collective agreement" (i.e., G.C. Exh. 8).26 The hourly wage increase proposed in Gallucci's draft was 20¢ at once, an additional 10¢ in 18 months, and a further 5¢ in another 18 months ("20-10-5"). In the foregoing respects, the testimonial accounts by Gallucci and by Daugherty of what transpired at their May 26 rendezvous are without significant inconsistency. At this point, however, their accounts actually or potentially diverge to the extent that according to Gallucci's testimony Daugherty indicated that a contract extension would be "all right . . if the money is right" or that at any rate he (Daugherty) would so recommend, whereas Daugherty insists he at no time agreed or indicated acquiescence in an extension. Considering the record as a whole; it would seem in this connection that Gallucci misunderstood Daugherty's words or their import, in a context of lack of authority upon Daugherty's part to commit either International or Local 305 to extension of the existing contract (1965-68) 27 Concededly, according to Gallucci's testimony, as of this time (May 26), Respondent had not contacted Local 305 President Overbey or its bargaining committee or other Local 305 personnel, regarding the wage increase proposal advanced privately to International Repre- sentative Daugherty by Gallucci on May 26 When Daugherty reported to his superior, International Regional Director LaPage, on the May 26 conference with Gallucci, LaPage, confirming what Daugherty had already told Galluccr, stated that he "absolutely would not go along with any extension to the contract.2 8 And if he [i e , Galluccr] didn't believe it, to have him call Mr. LaPage, and he certainly 20 G.C. Exh. 8. Respondent's former Plant Manager Sturtz as Respondent 's witness testified that after this full textual copy had been typed , Company attorney Schrodi instructed him, "You better have Lyle [Dauherty] sign one copy and send it to me so we know everybody is going by the same document." Sturtz conceded that it was this (G.C Exh. 8) which was referred to and utilized by him in matters of industrial relations contract administration. 2 1 Also of counsel here and formerly General Counsel of Essex 22 Testimony of Gallucci and Plant Manager Sturtz is in accord that the rising area wage conditions creating the problem had been discussed at Company managerial and executive levels , eventuating in Gallucci's described May 26 solicitation and approach to Daugherty. According to Gallucci's credited testimony , the Company had decided to raise wages at Fowler "if we could get a contract extension " Testimony of Fowler Plant Manager Sturtz and of Local 305 President Overbey and Bargaining Committee Chairman Rosa Sells is in accord that the Local 305 bargaining committee had indicated that wage increases were necessary to prevent employees from going elsewhere 23 Gallucci testified that in presenting this proposal to Daugherty he told Daugherty that "we were prepared to give a wage increase, and a good one , but that I would insist on an extension of the contract as a condition of putting this money into effect." 24 G.C. Exh. 9 25 it was conceded by Company attorney -negotiator Harvey that at no time did he give a copy of this proposal to Local 305 President Overbey. 26 It will be recalled that International was a signatory to that subsisting agreement (G C. Exh. 8). 27 Gallucci 's testimony shows that Daugherty was careful to emphasize that International Regional Director LaPage, whom Gallucci knew to be Daugherty's superior , "might be opposed . . to the extension part of it", and that Daugherty made it crystal clear that he would have to "take it up with Mr . LaPage one way or another," this being not the only occasion on which Daugherty stated his being required to do so. In this factual envelope alone , Daugherty's testimonial insistence that he made no promises to Gallucci, but on the contrary was consistently negative on the matter of contract extension, is persuasive. Later events , as will be shown, bear this out . Furthermore, Gallucci's assistant Harvey, who serviced the Fowler plant industrial- relations wise for management and who appears to have carried the brunt of the ensuing negotiations, conceded that he (Harvey) neither told Daugherty that he had "reneged on an agreement" nor had Gallucci told him (Harvey) so. 28 Testimony of International Representative Daugherty In his testimony , International Regional Director LaPage added , "at that rate " GENERAL TRANSFORMER CO 365 would tell him so." Daugherty conveyed the message to Michael Harvey, Gallucci's assistant. Later in the day of his meeting with Gallucci (May 26), Daugherty went to Fowler, where he showed Gallucci's draft proposal to Local 305 President Overbey and bargaining committee members, point- ing out to them that International "would not under any circumstances go along with any extension to the present contract " Also late in the afternoon of his meeting with Daugherty (May 26) Gallucci telephoned and instructed Fowler Plant Manager Sturtz to call a negotiating meeting for the next day. When Sturtz expressed doubt about getting Daugherty on such short notice, Gallucci assured him that Daugherty would be there. Sturtz thereupon asked Local 305 President Overbey to contact Daugherty and the local bargaining committee.29 Sturtz testified, "I assumed Mr. Daugherty would be present at the negotiating meetings.... He had always been present at the prior meetings." There ensued 4 bargaining sessions between the parties- namely, on May 27 and 31 and June 3 and 10-throughout each of which there were present International Representative Daugherty and representatives of Respondent and Local 305.30 I find that at the first of these sessions (May 27) the principal spokesmen and negotiators were Sturtz and Daugherty, and, at the three subsequent sessions , Harvey and Daugherty. At the initial session, on May 27, after calling attention to the necessity for a wage increase because of the intolerable rate of plant personnel turnover, Sturtz offered "10-5-5s31 for a 2-year contract extension. Daugherty refused a contract extension and suggested larger wage increases (as high as 500 for some employees). At the meetings of May 31, June 3 and June 10, Respondent insisted upon, but Interna- tional as well as Local 305 consistently refused, a contract extension,32 and various proposals and counterproposals were advanced regarding the extent of the offered and desired wage increases. At a Local 305 membership meeting following the June 3 negotiating session, when Daugherty explained the situation to the meeting and International's opposition to contract extension, the Company's proposal was "unani- mously" rejected. When, again at the June 10 negotiating session, Harvey was offering only an immediate 15¢ wage increase with the extra increases still tied to a 2-year contract extension, he was informed that the Local membership had voted and unanimously rejected the Company's proposal, whereupon Harvey said, "That was it, that there would be no more."3 3 Daugherty, displaying the draft agreement (G.C. Exh 9) he had received from Gallucci on May 26, pointed out that Gallucci had initially offered more (i.e , "20-10-5") than Harvey was now offering. Angered, Harvey indicated doubt as to the authenticity of the document received by Daugherty 29 Testimony of former Plant Superintendent Sturtz, Respondent's witness 30 With a single exception , participants in these sessions were the same throughout , namely, International Representative Daugherty, on behalf of Respondent Michael Harvey (Gallucci's assistant and an attorney for Essex, present at all sessions except May 27), Gerald Sturtz (Fowler Plant Manager), John Jones (Fowler Plant Production Control Manager or Purchasing Agent, now Plant Manager), and Robert Smith (Fowler Plant Foreman or head of quality control), and Local 305 President Overbey and bargaining committee members Sells (Chairman), Gick and Wagner Harvey testified that, on instructions of Gallucci, on May 30, before entering the negotiations on May 31, he (Harvey) from Chicago telephoned Daugherty at the latter's home in Logansport, Indiana, and discussed the bargaining to ensue. 31 I e., hourly wage increases of 104 immediately , an additional 54 in 18 months , and a further 54 in another 18 months. 32 Credited testimony of International Representative Daugherty The company maintained that they had to have an extension to the contract . I [Daugherty[ consistently told the company that we could not extend the contract, the International would not agree under any circumstances to an extension of the contract. I [Daugherty] had a consistent position throughout all of these meetings that I would not agree at any time under any circumstances to any extension to the present contract . . this was the policy that was laid down to me by my boss of the International Union, and this is what I adhered to. . r • r s Mr LaPage is opposed, to it, the regional director . . this is the policy of the International Union. We are opposed to more than a 3-year contract Credited testimony of Local 305 President Overbey shows that he consistently, even through the private meeting on June 17 between Respondent and the Local 305 officials (with International not invited or notified) to be described, "didn't approve of the extension," this also being the position of Local 305 Bargaining Committee Chairman Rosa Sells. Credited testimony of Local 305 Bargaining Committee Chairman Rosa Sells And of course we didn't accept [Harvey's position of'15-5-5' with a 2-year contract extension 1. Mr. Daugherty does most of the talking when we go to the meetings, and he wouldn't accept it-on a two year extension on the contract ... Mr Daugherty said that if he extended the contract for two years, he would be automatically fired. Credited testimony of Respondent's former Plant Manager Sturtz With relation to the May 31 bargaining session, Sturtz conceded that basically "[the] position taken by the International Representative and Local delegates or representatives was the same at the time , substan- tially the same , nobody wanted the extension " At the June 3 session, principal Company negotiator Harvey offered "15-5-5" with a 2-year contract extension , at the same session , however, in a context of a "10-10-5" discussion , when Overbey raised the possibility of an 8-month extension , Harvey "said for an 8 month extension we'll give you 5-3- and 2." Daugherty "was rather bitter" and indicated he "thought it would be a good idea for the company to quit the plant " Nevertheless, "Lyle [Daugherty) was steadfastly against increasing the length of the contract " Sturtz conceded that at the final meeting on June 10, nobody from Local 305 took a position different from that of Daugherty Credited testimony of Respondent 's former attorney -pri ncipal negotiator and Gallucci 's assistant , Harvey From the very outset when on May 30 at Gallucci's direction Harvey contacted Daugherty, the latter told Harvey, "You better tell Frank [Gallucci] that I don' t think the people want the two year extension " With regard to the May 31 negotiating session , Harvey testified It was repeatedly stated to me at the meeting that this local union and the membership would not like a five year contract because one of the reasons suggested was that they had just come off a five year contract I think it was echoed by everyone there , Mr. Daugherty I know said it, [Local 305 Bargaining Committee Chairman] Rosa Sells had said it, and I am not as positive about the others, but I think they echoed the sentiments At the June 3 meeting , "there was consistently discussion that the people would not want a two year extension because of the five years." Concededly, Daugherty stated, in the presence of the Local represen- tatives , that his superior (International Regional Director LaPage) would fire him if a 2 -year extension were made , and Daugherty continued so to state many times, never deviating from this position throughout the negotiations With regard to the June 10 bargaining session, Harvey testified that Local 305 President Overbey also continued to express himself in opposition to contract extension, and that , after Harvey was asked to "give the money without the two year extension." he (Harvey) replied, "We have nothing more to talk about." Harvey conceded that Respondent was "consistently after . . a two year extension," with International (and, it would seem, also Local 305 through the June 10 meeting) opposed thereto 33 According to the testimony of Respondent's former Plant Manager Sturtz , "Harvey asked the committee to take it back to the membership for a vote, requested." 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from Gallucci, and stormed out of the meeting, stating that "The whole proposition is over. I will never come back to this plant" and that "he [Harvey] would go out and tell the people that it was the International Union's fault that they weren't getting more money That the International Union was holding the wage increases away from the people.' 34 Harvey testified that, as of the end of the June 10 negotiating session, "It was never culminated into a formal verbal proposal of 20, 10 and 5 for a two year extension." Also according to Harvey's testimony, he told the Fowler plant foremen that "15/5 and 5 with a two year extension was the last proposal that was made that was rejected by the membership and that it appears that the contract negotiations have broken down." As of Harvey's (and other Company representatives') leaving the bargaining session of June 10, no arrangement was made for a further meeting, nor (except to the extent hereafter indicated) has Respondent met for bargaining with Interna- tional since then. According to testimony of Respondent's witness and former Plant Manager Sturtz which I credit, prior to the final June 10 meeting, Harvey had told Sturtz, "I don't believe [Daugherty] . is going to go along with this exten- sion." Sturtz had earlier expressed similar doubts to Harvey. Also according to Sturtz, after he left the June 10 meeting with Harvey, Harvey said to him, "`See, he [Daugherty] still is not going to recommend that two year extension' . . I [Sturtz] agreed with him " It is thus clear that as of the close of negotiations on June 10, Respondent was consistently insistent upon a 2-year contract extension (to December, 1970) of the subsisting 3-year contract (October 1965-October 1968), with "15-5-5" its last formal offer for a 2-year extension; and that Interna- tional as well as Local 305 were rejecting the proposed increase tied to the proposed extension. June 16-17 1. June 16 Harvey We proceed to a description of the activities of Harvey (Assistant to Gallucci, Essex Vice President for Employee Relations) on June 16 On Thursday, June 16, either Harvey telephoned Sturtz for a report or Sturtz telephoned Harvey to report (which is unclear, since Sturtz varied his version from direct to cross- examination).3 5 Sturtz (according to his testimony) told Harvey that the plant was "having a lot of trouble, that the people had been expecting a raise, now they were beginning to doubt whether they were going to get a raise or not. There were threats of mass quitting, some threats of walkout ... even some rumors of possible strike. There were people not coming into work." At this time, according to Sturtz, it was the Company's proposed 150 increase (as last offered by, Harvey) that employees were discussing. Sturtz advised Harvey to come to the plant, which Harvey did that afternoon. Plant foremen were summoned, and they confirmed the situation earlier described by Sturtz to Harvey, who, according to his (Harvey's) testimony told them, "'It doesn't appear that the people want a two year extension.' I think those were my words to the foremen ..I told the foremen that negotia- tions appeared to be off .." Harvey had Local 305 President Overbey called to the plant office, where he (Harvey) conferred with him privately, telling him-in Harvey's own testimony-that it was Harvey's "impression that the people did not know what the company's proposals had been, and that all these people seemed misinformed, and that it had placed an awkward situation in the plant because of the . . threats of mass quitting, perhaps even striking.s3 6 Harvey asked Overbey to call a meeting of the Local 305 membership "as soon as possible" since it "seemed to be an emergency " However, also according to Harvey's testimony, he then ascertained from some foremen that "the situation... wasn't as mixed up as reported." Harvey settled for a Local 305 membership meeting the following night (Friday, June 17) when Overbey explained it was impossible to call a meeting then and there for that night (Thursday, June 16). According to Overbey, testifying as Respondent' s witness , he (Overbey) was opposed to calling a meeting and told Harvey so, also according to Overbey, "he [Harvey] didn't explain it [i.e., why he wanted a Local 305 membership meeting called] . . He didn't say why. . . I [Overbey] didn't know what his purpose was to be in such a hurry.... I didn't, personally didn't think Friday [June 17] would be a good night because that is the night everybody does their shopping ...I did wonder about it I don't believe I asked him [Harvey, why he wanted a Union membership meeting called] . . . I didn't see any need of calling a meeting because the offer hadn't been raised " Respondent's witness Sturtz confirmed in his testi- mony that the "proposal that Mr. Harvey wanted Mr. Overbey to tell the membership at the meeting of the 17th" was "still the 15, 10 and 5 with the two year extension" which "had been made to the union committee on June 10." Sturtz further testified that before leaving Fowler that day (June 16), Harvey asked Sturtz to "keep an eye on the situation and give me a call in the morning." Finally, Overbey's testimony shows that in connection with his request that Overbey call a Local 305 membership meeting, Harvey also asked Overbey to contact Daugherty for that-1 e., Friday night, June 17-Local 305 membership meeting, which was done the following morning (Friday, June 17) by the Local 305 Vice-President.31 2. June 16 Gallucci We now pass to an account of the activities of Harvey's superior, Essex Vice-President for Employee Relations Gallucci, on the same day, June 16. To begin with, in his testimony Gallucci conceded that 34 Composite credited testimony of General Counsel's witnesses Daugherty , Sells and Overbey , and of Respondent 's witnesses Sturtz and Harvey 35 Also according to Sturtz , when Harvey called him on June 14 about "how the situation was," Sturtz "told him that things were sort of out on the limb, people were wondering what action was going to be taken next , if any " Sturtz conceded that he did not ask Harvey "if they were going to put the proposal of 20/10 and 5 [i e , as on Gallucci's May 26 draft) into effect or make that offer to the union " 36 Harvey conceded on cross-examination, however, that (as shown above) he had been informed by the bargainers at the June 10 bargaining session that the Local 305 membership had already voted on and rejected his June 3 proposal. 37 The foregoing description of the events of June 16 involving Harvey is based upon the composite testimony , as credited, of Respondent's witnesses Sturtz, Harvey , Overbey , and Scrocco. GENERAL TRANSFORMER Harvey had informed him "that at these [May and June negotiating] meetings Mr. Daugherty was saying the Interna- tional wouldn't agree to an extension of the contract " In the context of the factual situation as thus far described, Gallucci met in Milwaukee with International officials V P LaPage (for 10 years Regional Director for Region 8, consist- ing of 7 states including Indiana, with 14 International Regional Representatives and about 105 locals under his jurisdiction, and for the same time Member of International's Executive Board), Gilbert Jewell (International Secretary- Treasurer for 10 years), and Richard Humphreys (International Education and Research Director since 1959), on June 16 for dinner, after sending a message on the previous day to LaPage, who was in Milwaukee for an International Executive Board meeting, that he wished to discuss a pension matter involving Logansport Local 668. During dinner 38 that night, after discussing the Logansport pension plan, Gallucci brought up the situation at the Fowler plant and Gallucci's offer to Daugherty LaPage pointed out that the existing contract at Fowler "had only been in existence for about 6 months, that there are plenty of provisions in that contract to grant these people the necessary increases that Mr Gallucci was talking about without extending the contract " LaPage explained "that we had a contract that was in effect That the contract had some time to go That it was our position that we preferred to let the contract run its course, and at that time we would negotiate on working conditions and wages which we felt would be adequate at that time " However, Gallucci insisted on making any wage increases conditional upon the contract extension proposed LaPage was adamantly op- posed 3 9 After dinner, on the way back to Gallucci's hotel, when Gallucci again brought up the Fowler situation, asking, "Red [LaPage] , what am I going to do with this offer I got in my pocket," LaPage responded, "If it is pertaining to Fowler, and if it is still predicated on an extension to the contract, tear it up " When on arrival at Gallucci's hotel, the latter invited LaPage in for further talk, LaPage declined, stating, "I haven't got anything to talk about," and left Upon returning to his own hotel, LaPage telephoned Daugherty, who denied any commitment on his part to Gallucci. LaPage then instructed Daugherty to notify the Fowler plant management in writing at once that its contract extension proposal was unaccept- able 40 38 LaPage , Jewell, and Humphreys testified that the discussion about to be described occurred at dinner , Gallucci testified it occurred after dinner, on the way back to Gallucci 's hotel In resolving credibility , to the extent essential , I do not feel called upon to explicate in detail and attempt to resolve this or similar testimonial inconsis- tencies, including , to cite but another, whether these gentlemen went sightseeing before or after their meal 39 Gallucci also indicated that he felt Daugherty had "let him down" because he "thought " Daugherty had committed himself to the extension proposed (or, as Gallucci testified , he "personally didn't like being taken advantage of by one of [ your] representatives," since Daugherty had "agreed with me he would recommend it" [emphasis supplied] ) Expressing doubt about this, LaPage said that if true Daugherty would be fired Gallucci conceded that LaPage also told him that Daugherty and other staff members knew from LaPage that "I ILaPage] didn 't like extensions and I wouldn 't have any ", and that "Daugherty was under specific instruction or orders from [LaPagel not to enter into or recommend any extension of a contract." 40 This account of the June 16 events involving Gallucci is based CO 367 3 June 17 Harvey We return now to Gallucci's assistant Harvey, who at the heating denied knowledge at any time prior to the hearing, of Gallucci's described June 16 activities in Milwaukee or of even being in touch with Gallucci on June 16 or 17 41 Harvey again went to the Fowler plant on Friday, June 17, arriving there around or shortly after 3 p.m He had given Overbey no indication the day before that he would be back on Friday. 42 At Harvey's direction, Sturtz summoned Local 305 President Overbey and the local bargaining committee members (Sells, Gick, and Wagner)-all plant employees of Respondent-to the plant office, in Harvey's words, to "ask them why they hadn't told their people and why they haven't stopped this strife and stress . I felt they should go out and tell their people what transpired " Nothing was said about contacting Daugherty, who was not there, nor did Harvey ask why, as Harvey testified, he "didn't expect him [Daugherty] to be there" and Daugherty's name didn't even come up "because at this point we were only concerned with stopping the unrest.... I [Harvey] thought that the committee could be much more effective by stopping it supply by communica- ting with the people and telling them what had transpired " The testimony of Local 305 President Overbey establishes that the reason Daugherty was not there was that he was not asked to be there, in view of the precipitate suddenness with which Overbey and the Local 305 bargaining committee members were summoned to the plant office in the late afternoon of June 17 It will be recalled that on the previous day (Thursday, June 16), Harvey had asked Overbey to notify Daugherty to attend a Local 305 membership meeting to be called for Friday night, and had said nothing about any prior meeting with management on Friday afternoon. As testified by Overbey, "At that time [Thursday, June 16 meeting of Harvey with Overbey] I didn't know that Mr Harvey would be back the following day [Friday, June 17], otherwise I could have had her [i e , Local 305 Vice-President] notify him [Daugherty] for that [Friday afternoon, June 17, meeting with management] too [as well as the Local 305 membership meeting on Friday night, of which Daugherty was notified Friday morning]. I did not know that . . 17th, in the afternoon we, the committee and myself was called in the office and Mr Sturtz and Mr Harvey was in there That was upon the composite testimony , as credited , of General Counsel witnesses LaPage , Jewell , and Humphreys , and of Respondent 's witness Gallucci 41 All facts considered , including the critical nature of the events of June 16-17, the complementing roles played therein by Gallucci and Harvey , the relationship of chief and assistant between the two, the need for close and careful coordination of activities , the facts as they actually unfolded, the failure of Gallucci to corroborate this, and also testimonial demeanor, I am wholly unpersuaded by this denial. 42 According to Sturtz , he telephoned Harvey Friday morning, reported no change , and advised him to come to the plant . According to Harvey, he returned on Friday afternoon because Sturtz had informed him that morning that "the same situation had developed that there was still unrest " According to Sturtz , when Harvey arrived on Friday afternoon , Sturtz told him that "Mr Scrocco , the winding foreman had stated [early Friday] that unless there was something resolved by Friday night that they were quitting , there were several girls in the finishing department that had also declared themselves they quit unless something happened by Friday night." 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD prior to the time that they [Strutz and Harvey] went out and spoke to the people in the plant. That was the time they brought the offer up to 20/10 and 5 " According to Overbey, Daugherty had not been asked to this meeting suddenly convoked by management on Friday afternoon, June 17, "because in fact we [Overbey and Local 305 bargaining committee] didn't know about this meeting at the time " During the ensuing discussion between Harvey and the Local 305 officials, according to Plant Manager Sturtz, Harvey asked Local 305 President Overbey, "`Well, what do the people think of this present proposal of 15-10 and 57' One of the girls said that, `Well, a lot of the people are in favor of taking this proposal now rather than taking the chance of losing what has been offered."' Harvey then "asked, he said, `Well, are they willing to take the two year extension,"' and bargaining committeewoman Wagner or Gick replied, "`Yes, some of the people would take the extension although they weren't entirely in favor of it "' At this point Harvey asked-still according to Sturtz-whether "20-10-5" would "settle this thing and take care of it and would it put you people in a position to recommend this proposal." Harvey, according to his own testimony, "then polled each member of that committee and asked individually" whether they would agree to a 20-10-5¢ wage raise for a 2-year contract and recommend it to the Local 305 membership. According to Harvey, the Local 305 officials agreed to do both, but according to Overbey, whom I credit, Overbey stated, "the money was right ... 1 would tell the people to go along with it, [but] I didn't approve of the extension. I don't know what they would do on that," and that "personally I was always against the two year extension" and had "many times" so informed Harvey, who "knew that very well", and according to Local 305 Bargaining Committee Chairman Rosa Sells, whose testi- mony-in part corroborated by Overbey on rebuttal-I also credit in this aspect (in preference to contrary testimony by Harvey and Sturtz), Sells stated, "Mr. Harvey, I can't go out in the plant and tell the employees something that I don't believe in myself." Also in the course of this negotiation, when- according to Sturtz and Harvey-the Local 305 officials brought up the possibility of Respondent's reducing its proposed starting rate or spreading out the probationary period rates for new employees so as to avoid an unduly slight pay differential vis-a-vis older employees, the management representatives agreed to do so Sturtz conceded at the hearing that the Company proposition finally made to the Local 305 bargaining committee on June 17-with no International representative there or invited or notified of a meeting- differed from the last Company proposal on June 10 in two respects, viz , (1) the Company's wage raise offer was increased from "15-10-5" to "20-10-5" and (2) the probationary employee or progression rate schedule was to start at 15¢ instead of 10¢, below the regular rate. Harvey himself conceded on cross-examination that he was "surprised when the [June 17 afternoon] meeting [between management and the Local 305 bargaining committee] converted into a negotiating session" because "I only had one thought in mind, it turned out into negotiations." Following the described session in the plant office on the afternoon of June 17, Harvey and Sturtz, accompanied by Overbey and the local bargaining committee, went out into the plant, where Sturtz addressed the employees in 3 groups, telling them, according to Harvey, "that an agreement had been reached by their local committee and management, and that there was going to be a vote He asked them to go to the union meeting and vote." According to Sturtz, who did the talking to the plant employees, he told them "there had been a lot of confusion during negotiations .. and that we had met with the committee. We had come to an agreement ..I explained .. that we were offering 20 cents an hour right away with the 10 cents in 18 months, another five cents in 18 months with the contract to run another 18 months." On cross-examination, Sturtz added that he also told the employ- ees "that the committee had agreed with this proposal and felt that it should be accepted." Sturtz also testified that he had told one of the employee groups that "several meetings" had been held and that "We had just concluded a present meeting. We had come to an agreement, but I think they should understand that this was as much money as the company had to offer I remember stating, `There ain't any more "' Further according to Sturtz, ". the main questions in the first group were, `Why was it necessary, we knew that the company was offering money, but why was it necessary that the company have the extension?" "I [Sturtz] told them that the company felt that since they were putting more money into the contract and they were getting more money right away, that they felt they needed something in return for it, that the five year sales forecast had been made. This made it possible to make a prediction for five years Also the company would be in an embarrassing position with the rest of the plants if they give money without getting an extension or something in return for it." On cross-examination, Sturtz added that he also said, "It would be embarrassing in the other plants of the corporation if they would hear and say, `Well, Fowler got 20 cents, we want 20 more cents "' When he was asked by an employee or employees, "What happens if we don't accept this," according to Sturtz, "I [Sturtz] indicated to them, `Well, you won't get the money, probably have to live out the life of the present contract."' Local Bargaining Committee Chairman Sells testi- fied credibly that Sturtz also told the employees "to go to the [Local 305 membership] meeting that was being called that night and vote to take-to vote to take the proposition that he had made. It was either take it or we wouldn't get any wage increase.s43 General Counsel witness Sarault, employed by Respondent for 7 years, likewise testified credibly that Sturtz told her group of employees to "vote for this" and that "there would be no raise unless this was accepted " In the course of Sturtz' address to the third plant group, a question was raised as to "whether the increase would apply to the vacation 43 Based upon close demeanor observations while she was under oath before me at the hearing, I prefer and accordingly credit Sells' testimony to this effect , over some at least in part conclusionary, seemingly contrary nontestimomal statements drafted by Harvey and another Company attorney and presented to her in the plant office for signature without reading All circumstances considered , under my observation while under oath Mrs . Sells explained any material inconsistencies in those statements to my satisfaction However, in any event , it is not an employee's subjective "impression that I was being threatened" (as one of Mrs Sells' statements was worded) which governs , but rather the naturally foreseeable effect of those words. Cf Zimnox Coal Company, 140 NLRB 1229, 1234, enfd as modified 336 F 2d 516 (C A 6), Eastern Die Company, 142 NLRB 601, 602, fn 2, enfd 340 F 2d 607 (C.A 1), cert denied 381 U S. 951,Drennon Food Products Co. 122 NLRB 1353, 1356, enfd as modified 272 f 2d 23 (C A. 5), The Rein Company, 114 NLRB 694, 697-698, The Dalton Company, Inc , 109 NLRB 1228, 1229 Moreover, even if Mrs Sells did not feel threatened does not mean that other employees did not. GENERAL TRANSFORMER CO pay 44 I [Sturtz] told them I didn't know at that moment, the question hadn't come up before and we hadn't decided However, when I left that [third and last] group Mike [Harvey] and I got to the office and I asked Mike, `What do you think about that?' He said, `Let's let the increase apply to vacation pay ' I immediately went out and told Stewart Overbey, also told my foremen to inform the people in their areas." Concededly, no explanation or statement was made to the employees regarding the position or lack of participation of International. These management speeches, held at Company expense just before quitting time, were almost immediately followed by the Local 305 membership meeting called at Harvey's insistence Notification of the meeting was by word of mouth that day (Friday, June 17) No written notice was furnished or posted'45 since, as Local 305 President Overbey testified, "We didn't have time." As credibly described by several wit- nesses,46 there was "quite a bit of confusion" at the meeting, which was attended by about 70 persons milling around in 3 separate but adjoining or interconnected rooms and a hallway in a dwelling-type house, with "everybody . - talking at the same time, trying to get the vote started so they could get out of there in a hurry Some of them voted and left right away " Local 305 President Overbey, who "presided," merely pre- sented the proposal for a "yes" or "no" vote, with neither explanation nor recommendation. International Representative Daugherty, who was present, attempted over the din to explain International's opposition and refusal to agree,4 7 but, accord- ing to Local 305 Bargaining Commitee Chairman Sells, "there was too much talking in the room that I [Local 305 Bargaining Committee Chairman Sells] was in so that I couldn't even hear him [Daugherty] " Nevertheless, Respondent's latest proposal-i e., the one made to Local 305 personnel by Harvey that afternoon (Friday, June 17) in the plant manager's office in the absence of Daugherty,48 as subsequently improved to the plant employees directly by Plant Manager Sturtz in connection with his plant speeches just before they voted'49 was approved by a vote of 60-9 of the persons there and voting under the described circumstances.50 Upon learning of the "outcome of the vote . on the company's proposal. [that] it had been accepted 60 to 9," Sturtz informed Harvey, who "told me [Sturtz] to make up a contract on it The supplement on it, and to have the committee sign it " Sturtz did so, and on the following Monday (June 20) he called Local 305 President Overbey and its bargaining committee to his office to sign the document he presented to them, which they had never seen before. Sturtz told them that "so long as we had voted on it, we were 44 As explained by Bargaining Committee Chairman Sells, vacation pay is apparently calculated as of May 1, although the proposed pay increase was to be retroactive only to June 13 Sells testified credibly that she first learned of this added benefit when thus unilaterally announced by Sturta on June 17 45 Cf Local 305 bylaws (Resp . Exh 37), art VII, §2, and art XI It is not implied here that written notice is essential 46 Le., Sarault , Sells, Daugherty , and Overbey 47 Daugherty testified that he "explained to the people what kind of a bad proposition it was I definitely told them that the International could not agree to any such proposition that the company offered, and we would not accept, ratify , or approve , or would not even sign the contract " 48 Le , "20-10-5" with a larger differential of pay of probationary employees The management proposal voted on by employees differed from Gallucci's May 26 proposal to International with regard to the pay differential for probationers, as well as retroactivity application of the 369 supposed to sign the contract." Overbey had informed Daugherty of what had happened, and when he asked Daugherty what to do, the latter "told me [Overbey] then that I would still have to sign it, but he [Daugherty] didn't have to, but I did " At no time has this document been presented to Interna- tional for signature . On the date this document was signed by Respondent and Local 305 (June 20), Daugherty dispatched a registered letter to Respondent (with a copy to Local 305 President Overbey), stating The International Union, Allied Industrial Workers of America, AFL-CIO will agree to wage increases without any extention [sic] to the term of the contract So that there is no misunderstanding The Interna- tional Union, Allied Industrial Workers of America, AFL- CIO being a party to the Contract signed October 21, 1965 and running to October 21, 1968 will not agree to any extention [sic] to said Contract. The International Union will not honor or recognize any agreement which extends the Contract beyond October 21, 1968 The International Union fully intends to negotiate a new Contract about 60 days prior to October 21, 1968. This letter was answered by Respondent on June 27, by Harvey on the letterhead of Essex, acknowledging receipt of Daugherty's letter and stating Please be advised that there is no misunderstanding on the part of General Transformer or its employees (Local No. 305 of the International Union, Allied Industrial Workers of America, AFL-CIO) Our present Labor Agreement was bargained in good faith, ratified, and executed by the Company and its employees. This agreement provides for wage increases during the life of the Agreement and expires on December 13, 1970 The Company intends fully to live up to the terms of the Agreement and our honest understanding with our employees Daugherty, upon his request to Overbey, was furnished a copy of the agreement executed June 20 between Respondent and Local 305. Executed as of June 18, the agreement is in format essentially a purported modification agreement of the existing October 21, 1965, collective agreement (G.C. Exh 8) subscribed by Respondent, Local 305, and International, extending it for somewhat over 2 years at higher stipulated rates of pay and provisions which, although substantially those set forth in the Gallucci proposal of May 26 to Daugherty (G C. Exh 9), are nevertheless not precisely the same.' i As the subsisting collective agreement (G C Exh 8) which it purports to modify, it also contains a provision forbidding unilateral reopener-but, of course, in this case , unlike the proposed new rates to vacation pay Of course, it was higher in amount than the last management proposal made by Harvey at the last bargaining session attended by International and Local 305 on June 10 49 1 e , applying the proposed pay increases retroactively to vacation pay This feature had never been taken up with International or with Local 305 50 International Regional Director LaPage testified that this Local 305 meeting was improperly called , that only 69 of 100 employees voted-some possibly more than once , and that other local 305 members had requested International to intercede for them here under the circumstances Si I e , "20-10-5," with 20V retroactive to June 13 , and larger differential on probationers ' pay As shown above , Respondent also announced to its employees before they voted that the new wage scales would be applicable retroactively to vacation pay to May 1, however, this is not shown in the written agreement 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD subsisting agreement (G.C Exh 8) which it purports to replace, it is not subscribed by International. This agreement 5 2 between Respondent and Local 305, captioned "Supplemental agreement entered into this 18th day of June, 1966," recites that "Whereas, the parties decided to terminate their October 21, 1965 agreement and enter into a new agreement as of this date":5 3 The October 21, 1965 agreement shall be terminated Except for the supplemental agreements the October 21, 1965 agreement will remain in force until December 13, 1970, and from year to year thereafter unless amended or terminated in the manner provided. At no time has International signed or approved this agreement in any way Daugherty informed the Local 305 membership that International does not and will not sign or approve it. Some time subsequently, at another plant (Peru), when Harvey brought up the Fowler situation again, Daugherty reiterated to him that International's position would not be changed and that it "absolutely would not go along with that contract, extension to it." Respondent has placed into effect the pay increases and other benefits called for by its terms.54 On August 4, International filed the charges resulting in issuance of the complaint herein Execution of the June 20 (i.e., dated June 18) agreement between Respondent and Local 305 did not put an end to International's regular service functions at Fowler These have continued. For example, on March 20, 1967 Daugherty conferred with Respondent's General Foreman Jones and Local 305 officials at the Fowler plant office, with Daugherty personally first preparing and distributing the agenda for that meeting to management as well as Local 305 officials, subjects included an employee grievance, production rates, merit increases and seniority for female employees, and parking lot repairs. Principal if not practically exclusive spokesmen were Jones for management and Daugherty for employees. Accord- ing to Daugherty's testimony, at no time since June 18 has Respondent or Local 305 disputed or questioned Interna- tional's status as employees' bargaining representative. C Concluding Findings and Rationale As indicated above, the basic legal issues here for determina- tion are whether Respondent violated Section 8(a)(5) and (1) of the Act by (1) not bargaining with International since on or about June 10 and (2) threatening employees that it would not raise their wages if they did not (under the indicated circumstances) approve its proposed 2-year extension of their subsisting 3-year collective agreement subscribed by Local 305 and International. 1. International's Certificated Bargaining Representative Status Our approach to the questions presented is from the point of departure of the Board's certification. A cornerstone of the Congressional plan for pacification of industrial unrest is the system of Board-supervised secret elections established by the Act. As a consequence of such an election, in which Respondent's employees elected International, the Board in 1960 issued its certificate to International as the exclusive collective bargaining representative of those employees. There has been no amendment or other change of that certification by the Board Under established principles, for one year following such official certification there is a conclusive, and thereafter a rebuttable, presumption that the certified Union is in fact the exclusive collective bargaining representative of the employees covered by the certification. Brooks v NL.R B., 348 U.S 96, N.L.R.B v Gulfmont Hotel Company, 362 F 2d 588 (C.A 5), New England Lead Burning Company, Inc., 133 NLRB 863, 867; Celanese Corporation of America, 95 NLRB 664,671-674, cited in Brooks v. N.L.R.B., supra As is well known, a presumption operates legally as a substitute for proof, in other words, it operates to establish as a fact that which would otherwise have to be proved in a conventional way through evidence IX Wigmore, Evidence Secs 2490-2491 (3d ed 1940) Thus, the presumption, when applied, shifts the burden of proceeding with proof to the other side, here, to the party (Respondent) disputing the representative status of the Board certificate holder (International) N.L.R B. v Gulfmont Hotel Company, supra In this connection, it may be observed at the outset that Local 305-which Respondent here contends is the exclusive collective bargaining representative of the employees-although joined here as a party, has not appeared and does not here contest International's status as exclusive collective bargaining representative as alleged in the complaint. At no time has there been any official challenge, by Respon- dent Employer or otherwise, of International's certification, such as by a petition for decertification or for election, nor has there been any application, by Local 305 or otherwise, to amend the certification of International. It is clear that any such action would have had to have been on notice, with opportunity to oppose, including in one form or another opportunity for affected employees to make known their desires Amendments to certifications are not granted mechan- ically or as a matter of course (cf., e.g., M. A. Norden Co., Inc., 159 NLRB 1730, Yale Manufacturing Company, Inc., 157 NLRB 597, and North Electric Co , 165 NLRB No. 88, for otherwise that industrial peace, bottomed on employees' free choice of bargaining representative, which is a key objective of the Act, would be reversed to a travesty. 2. Did International "Relinquish" Its Bargaining Representative Status to Local 3057 The fact that a representative holds Board certification does not preclude appropriate remedy to change or substitute a representative, where concerned employees so desire, as, for example, in case of abandonment, inaction, or malfeasance. As indicated, certifications may be withdrawn or amended. Nor does certification, particularly after expiration of the 1-year period following certification, per se bar effective recognition by the employer of a representative other than the certificate holder; but such recognition is at the employer's risk to justify in case assailed, most particularly during the 1-year postcerti- fication period, when the described presumption is "irrebut- table." Here, with a certification date of September 12, 1960, 52 GC Exh . 12. 54 The foregoing account of June 17-20 and succeeding events is a 53 There is neither evidence nor contention that International at any composite of credited testimony of Respondent 's witnesses Harvey, time terminated or agreed to terminate the 1965 agreement The Sturtz, and Scrocco , of General Counsel's witnesses Sells, Sarault, evidence is clearly to the contrary . Daugherty , and LaPage , and of Overbey both as Respondent 's witness and as General Counsel's rebuttal witness GENERAL TRANSFORMER CO. 371 Respondent asserts (Answer, par. "7") that the certificate holder (International) has not been the employees' bargaining representative since October 26, 1960, 6 weeks after the certification. Respondent bases this conclusion on the contention that almost immediately after having won Board certification, International "relinquished" that status to Local 305 on October 26, 1960, the date when the parties (Respondent, Local 305, and International) entered into their first signed collective agreement Our inquiry essentially assays the totality of the parties' behaviorisms during the 6 years between certification and this case, in order to determine whether they fairly bespeak the International relinquishment which Re- spondent insists took place Respondent insists that International "relinquishment" of its representative status and Local 305 "investiture" with that status, occurred in October 1960, almost immediately after International's certification, and have continued since then. In so contending, Respondent relies heavily on (a) miscellaneous union campaign leaflets, (b) provisions of International's constitution and other lntraunion documents, (c) the parties' intermittent relations between the International's Board certi- fication and this case, (d) the parties' bargaining behaviorisms; and (e) the formats of the parties' collective agreements. These will be separately considered. a. Miscellaneous Campaign Leaflets Respondent has produced a miscellany of campaign leaflets said to be of the same ilk as those utilized in the Fowler plant organizational campaign.' 5 It is difficult to see how campaign literature antedating International's certification can constitute or evidence relinquishment of a status which International, the alleged relinquisher, had not yet attained; nor how even later vintage campaign literature at other locations establishes relinquishment of International's 1960 Board certification status based upon the particular form of election held and won by International at Fowler Although, conceivably, such an recertification campaign literature could contain promises to relinquish certified bargaining representative status if achieved, the campaign leaflets here contain no such undertaking by International. Presumably the products of a variety of authors not shown to be spokesmen for International, the campaign pamphlets in question are perhaps characteristically imprecise They cannot fairly be said to bind International to an obligation to forego any certificated bargaining representative status which International might gain at the Fowler plant. The references or even emphasis upon ultimate or final decisions being in the hands of the membership itself seem clearly to refer to-or at the least are consistent with the interpreta- tion56 that it refers to-ratification by membership of con- tracts which have been negotiated for membership subject to membership's approval. These do not constitute an under- taking or representation by International that its Locals are free to negotiate and enter into any kind of agreement whatsoever, without limitation-including agreements thor- oughly opposed to policies and principles for which Interna- tional stands and fights,5 7 nor do they constitute an under- taking or representation by International that local members may vote upon and approve management proposals which the bargaining representative has not negotiated or which it is not willing to submit to the local membership for approval.5 8 b. International Constitution and Other Intraumon Documents Respondent also here relies upon various provisions of International's constitution and related documents5 9 as estab- lishing or evidencing reqhnquishment by International of its bargaining representative status. At the outset it may be observed that Respondent's witness Wesley Wildman, former Essex labor counsel who on behalf of management negotiated the initial 1960 collective agreement now contended to have relinquished International's certifica- ted status, conceded at the hearing that he was unaware of and did not inquire into the contents of the International constitution when he negotiated the 1960 agreement 6 0 55 In view of stipulations and concessions regarding the general character of these leaflets as fair samples , they were received in evidence as reflecting organizing patterns and procedures engaged in by Interna- tional The Charging Party's motion to expunge these exhibits from evidence is denied 56 As, for example , indicated and arising from credited testimony of Respondent 's witness , International President Griepentrog 57 Id. 58 Thus, for example, Release No. 525 (1951) of International's predecessor UAW, introduced into evidence by Respondent (Resp Exh 2), while emphasizing the essential local role in "approval " of collective agreements , also describes the function of the parent organization (now International) "it is important to screen out preposterous and meaningless proposals and to negotiate only on proposals that have some merit and can be justified [sic] The proposals are then submitted to the local union for approval ... " (p. 1, emphasis added). Essex Director of Labor Relations Schrodi, testifying as Respon- dent's witness , conceded that when , at numerous times during negotia- tions, International Representative Daugherty (as well as other Inter- national Representatives) told him that "it is not up to me, it is whatever the people want. We'll take it back and let the people vote on it. If the membership approves it, you've got a deal ," it was within the context of International approval of a proposition which International had bargained and was willing to submit to the final approval (i.e., ratification) of the rank-and-file membership. It seems clear that no bargaining representative is required to submit to the rank -and-file membership for their "approval " or "disapproval" every proposition which the employer makes to the bargaining representative , including those which the bargaining representative does not consider to merit submission to the rank-and-file membership for "approval" or "ratifica- tion " The employees ' bargaining representative is not a mere echo or communication conduit for the employer. N.L R B. v Wooster Division of Borg-Warner Corp , 356 U.S. 342, 350 (quoted infra); Roesch Transportation Company, Inc, 157 NLRB 441, General Electric Company, 150 NLRB 192, 194, North Country Motors, Ltd, 146 NLRB 671, 674 See also, Paranite Wire & Cable Division , Essex Wire Corporation, 164 NLRB No 48 59 The objections to receipt in evidence of these exhibits (i.e , Resp Exhs. 2, 3, 6, 7, and 16 -24), received subject to motion to expunge, are overruled and the Charging Party's motion to expunge them from the record is denied 60 Respondent 's union "constitutional " argument based on its current interpretations of International 's constitution is suggestive of an afterthought and employer attempt to assert employees ' alleged rights against their bargaining representative , in attempted justification of the employer's own conduct "The underlying purpose of this statute is industrial peace. To allow employers to rely on employees ' rights in refusing to bargain with the formally designated union is not conducive to that end , it is inimical to it . Congress has devised a formal mode for selection and rejection of bargaining agents and has fixed the spacing of elections , with a view of furthering industrial stability and with due regard to administrative prudence ." Frankfurter , J., in Brooks v N.L.R.B., 348 U.S 96, 103 Cf. Paramte Wire & Cable Division, Essex Wire Corporation , 164 NLRB No 48, General Electric Company, 150 NLRB 192, 194-195; Independent Stave Company, Inc, 148 NLRB 431, 436, enfd 352 F.2d 553 (C.A. 8), cert. denied 384 U.S. 962, North Country Motors, Ltd., 146 NLRB 671, 674 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We nevertheless proceed to consideration of this contention on its merits, particularly since if there were a constitutional bar to International's acting in the status of certificated bargaining representative, such a bar might evidence absence of capacity on International's part so to act. However, close study of the constitution and related documents (e.g., convention proceedings amendatory thereof) fails to establish such a bar While it is true that constitutional provision has been afforded for approval by local membership of collective agreements, in view of other constitutional provisions and the record as a whole (including, specifically, credited testimony of Inter- national President Gnepentrog, testifying as Respondent's witness) it seems clear that these provisions: (1) neither preclude International from acting as certified bargaining representative nor require relinquishment or transfer of that power or status by International to any of its locals ,6' (2) vest a visitorial power in International over the subordinate locals which it charters,6 2 (3) comprise a guarantee to rank-and-file members that they will have the final "yes" or "no" verdict with regard to proposed agreements negotiated for them by their authorized bargaining representative (with or without their participation, active or passive, in the negotiations themselves), so that no such agreement is foisted upon them without their approval-Le., that rank-and-file members have the power of approval in the sense of ratification; (4) do not authorize rank-and-file members of local unions to enter into direct negotiations with management so as thereby to displace International as certified bargaining representative ,6' (5) do not authorize rank-and-file members or local unions to enter into agreement with management so as to bind Interna- tional,64 (6) do not authorize rank-and-file members of local unions to enter into any agreement with management contrary to International's constitution or basic policies and prin- ciples,65 (7) do not exclude International from acting or continuing to act as bargaining representative, regardless of the format of the bargained agreement, including the forms which signatures thereon will take.66 Accordingly, even aside from the fact that Respondent did not place cognitive reliance upon International's constitutional or related intraunion provisions in connection with the issues now raised '6 7 the provisions themselves do not furnish persuasive support for the position here urged upon the basis thereof 68 c Parties'Intermittent Relations between Board Certification of Intemattonal and This Case Respondent further urges that the actual relationship between itself, International, and Local 305 since Board certification of International in 1960, establishes relinquish- 61 As indicated, for example , by credited testimony of Respondent 's witness, International President Griepentrog. 62 See , e.g , Resp Exh . 3, arts . 7 03, 7 .04, 7.05, 7 08, 7.10 (pp 27-31 ), and 32 04 (pp. 89-90) International Representatives are empowered not only to attend and "actively participate in," but also to call meetings of locals and to "convey any instructions of the International President and/or the Regional Director " (Id., art. 8 03, pp. 34-35, emphasis added ) International has power to expel or suspend officials of subordinate bodies , with International's proceedings taking precedence over the local body's proceedings in such cases. (Id., art 13 09, pp. 45-46) No member tried by International may thereafter be retried by the local. (Id., art. 19.05 , p. 59 ) Failure to comply with a lawful International decision or order is ground for suspension, expulsion , or revocation or suspension of a local charter. (Id., art. 13 10 , p 46 ) "The International Executive Board shall protect all Local Unions which have succeeded in establishing higher wages, more favorable conditions , and generally superior agreements, against the signing of inferior contracts by other Local Unions in plants doing similar work ." (Id , art. 16.03 , p. 55.) Under these provisions , and as indicated by credited testimony of Respondent 's witness , International President Griepentrog , and General Counsel 's witness , International Regional Director LaPage, the nature of the sanction , if any , visited by International upon an offending local is discretionary with International . Obviously , as here, International may file an unfair labor practice charge against the employer , as here, the offending local may be joined as a party in a resulting Board proceeding. 63 E.g., "No member of the International Union shall work for lower wages , longer hours , or conditions inferior to those fixed by agreements of the International Union ." (Resp. Exh. 3, art. 3 .05, p 12.) 64 Resp. Exh 3, art 31 .03, pp. 85 -86, and conceded at hearing by Respondent 65 "Special or regular membership meetings of the Local Union ... shall be the highest authority for handling contracts and grievance problems within the plant in conformity with this Constitu- tion and Local Union bylaws ." ( Resp Exh. 3 , art. 1604, p 55, emphasis added .) Local Union charters , issued by International, may "be used by the Local Union only as long as said Local Union and its members comply with the laws of the International Union." (Id., art. 23.01 , p. 66, emphasis added ) The Local charter, which may be revoked or suspended by International for infraction , is in prescribed form stating that its "conditions . are such That said [Local] Union forever and under any and all circumstances shall be subordinate to and comply with all the requirements of the Constitution, Bylaws and General Laws or other laws of the International Union, Allied Industrial Workers of America , as they may , from time to time be altered or amended , That said [Local ] Union shall , for all time , be guided and controlled by all acts and decisions of the International Union , Allied Industrial Workers of America, as they may from time to time, be enacted " (Id , art 23, pp 66-68.) 66 Respondent , urging that International "has no power to enter into an agreement" (Tr , p. 115 ), cites a 1947 UAW 5th Biennial Convention amendment (Resp Exh 7, p. 165 ) to Section 7 of article 7 ("Duties and Authority of the International Executive Board") of the 1945 Constitution (Resp. Exh . 6) of UAW ( International 's predecessor organization), whereby , in relation to powers of the Executive Board, the following bracketed portion was deleted "power to adjust disputes between employers and employees [ and to enter into agreements with employers , subject to ratification by the membership involved] " I do not share the apparent view of Respondent 's counsel that the elimination of the bracketed words had that effect , particularly where, as here in 1960 , international is certificated by the Board as exclusive bargaining representative . I am confirmed in this view (reached independently) by credited testimony of Respondent 's witness Griepentrog , International President since 1957 and an official of International and its predecessor for over 30 years, who indicated the practice has been unaffected by this constitutional change It is clear that elimination of the constitutional requirement did not proscribe continuation of the practice. 67 Furthermore , "Respondents are hardly in position to insist that the [Local] Union and its International should apply stricter or different rules of conduct in their dealings with each other than they themselves (i.e., Union and International ) chose to observe N.L.R.B. v. National Mineral Co., 134 F 2d 424, 426-427 (C.A. 7), N.L.R.B. v National Seal Corporation , 127 F.2d 776, 779 (C.A 2), Pueblo Gas & Fuel Co v N.L.R.B , 118 F .2d 304, 307-308 (C.A. 10), N.L.R.B. v. Star Publishing Co., 97 F 2d 465, 470-471 (C A 9), Lane Cotton Mills Company, 9 NLRB 952, 967 -968, enfd . 111 F.2d 814 (C.A. 5), cf. N.L.R B. v Deena Artware, 198 F.2d 645, 652 (C.A. 6)." The Washington Post Company , 165 NLRB No. 118 , TXD, fn. 42. See also Independent Stave Company , Inc., 148 NLRB 431, 436, enfd 352 F.2d 553 (C.A. 8), cert. denied 384 U.S. 962. 68 For reasons to be shown, even if International approval of a Local contract is not required -constitutionally or otherwise-it would not follow that the employer is thereby freed from obligation to bargain with International as the Board -certified bargaining representative of employees . Whether the Local would be bound by such an agreement is here beside the point, since , if it were unsanctioned by International the latter clearly would not be. GENERAL TRANSFORMER CO 373 ment by International of its bargaining representative status. In my view, the facts establish the contrary. As has been shown and found, at all times until International and Respondent reached the parting of the ways, so to speak, on June 10 and 16, 1966, International carried the onus of bargaining from start to finish on behalf of the employees, and Respondent as well as Local 305 officials so recognized It was Respondent itself which, at the outset of each contract negotiation, including Gallucci's May 26 attempted contract reopener, sought out International in order to set the stage for negotiations to ensue. International formulated and prepared bargaining demands and bargaining session agenda. Even in 1967, subsequent to the entry of Respondent with Local 305 alone into the June 18, 1966 agreement here complained of, Respondent continued to engage with Interantional in contract administration problems And the simple fact is that Inter- national has at all times up to the aborted June 10 bargaining session, been present as a vocal, active, and predominant bargainer for the employees The further facts of the matter are that at no time before this case has Respondent questioned that status, nor does Local 305 question that status even now. As shown above, the actions of the parties hardly admit of any construction other than that Respondent regarded and treated International as the bargaining representative until Interna- tional's supposedly refractory refusal to accede to Re- spondent's insistence on a 2-year contract extension as a condition to a wage raise,69 at which time Respondent promptly and deliberately proceeded, for the first and only time since 1960, to bypass International and negotiate without International convenient ploy in the process of carrying water on both shoulders which is indulged in by all sides so as not to block off avenues of tactical retreat. Furthermore-even without resort to the truism that such loose words do not override jural requirements and relationships established by Board certifi- cation, organizational constitutions, and franchises-similarly to the campaign leaflets and International's constitution they invite the reasonable interpretation that the International Representative does not impose or foist his views on the Local membership so as to bind them to an agreement sight unseen.70 The converse, namely that the Local membership has the power to impose or foist its views on International, does not follow. Applying this interpretation, for example, International could not compel the local membership to accept a collective agreement requiring them to work for less pay than the members are willing to work for, on the other hand, the Local membership could not, even through unanimous vote, compel International to agree to or be bound by, nor to tolerate on behalf of itself or other locals,7 i a contract, say, for 50 years, or, intolerably ("unacceptably") depressing area wage standards to the serious detriment of sister locals, or, ousting and undermining International from its constitutional roles, relationships, and powers vis-a-vis its own local(s). The evidence fails to establish that the negotiating styles and techniques utilized by International in its bargaining relation- ships with Respondent negated International's continuing capacity to act as Respondent's employees' bargaining repre- sentative. Cf General Electric Company, 150 NLRB 192, 193, 194-195, 196, 263-266, North Country Motors, Ltd., 146 NLRB 671, 674. d. Parties ' Bargaining Styles and Techniques Respondent points to certain statements attributed to Daugherty, as well as other International representatives, tending to minimize his role in collective bargaining as merely "advisory," since the Local membership have the ultimate power to accept or reject. The argument is of the same character as that already dealt with involving campaign literature and International's constitution. Without attempting the impracticable task of recreating the particular circum- stances under which the particular words were uttered, even on a rough but fair running view they cannot be said to be determinative, nor even substantially assistive, here. Funda- mentally, they are straws which cannot resist the gusts of reason . For example, it is well understood that in the easy ecumenism of industrial relations, more specifically in col- lective bargaining, such expressions may be no more than a 69 Credited testimony of International officials indicates that in more recent years , because of inflationary and other factors , Interna- tional has as a matter of general policy been opposed to contracts having a term as long as 5 years However, the proof also shows that this policy may not have been inflexible . Since contract duration is only one of many terms to be negotiated , it is evident that as part of the regular peristalsis of negotiation numerous interrelated factors may be involved. The Charging Party's counsel bluntly conceded at the hearing that it "is not the Charging Party 's position per se that a five year contract is sub-standard you put enough money on the line and we 'll take a five year contract If there is not enough money there they don't like to take a five year contract ." However, as he also stated, "The issue in this case is who you are bargaining with " Counsel 's latter observation is the key As Mr Justice Burton in Borg-Warner and Judge Leventhal in Steelworkers (Roanoke), both quoted, infra ("3 Respondent's Bypass e. Parties' Collective Agreement Formats We move to consideration of Respondent's contention that the formats of the collective agreements here established "investiture" of Local 305 by International as the employees' exclusive collective-bargaining representative. Our course toward analysis of Respondent's contention of what it terms "contractual investiture" may safely be set by the compass direction that Board certificates are not negoti- able instruments.7 2 Nor, for a plenitude of reasons well understood by practitioners at the Labor Bar, are collective agreements "contracts" in the usual garden-variety sense, see, e.g., J.I. Case Co v. N.L R B , 321 U.S 332, 334;N.L R B. v. George E. Light Boat Storage, Inc., 373 F.2d 762, 766 (C.A 5), Lozano Enterprises v. N.L.R.B., 327 F.2d 814, 818 (C.A. 9), Cox, The Legal Nature of Collective Bargaining Agree- ments, 57 Mich L. Rev. 1 (1958). "In enforcing the National of Union "), have warned , it is the employer 's reaching over the head of its employees' certified collective bargaining representative so as to deal directly with the employees, thereby driving'a wedge between employ- ees and their representative , which is the core element of the statutory violation, not whether the collective bargaining representative was reasonable in his bargaining demands or techniques To hold otherwise would be substantially to deprive employees of the very benefit of collective bargaining action and expertise which it was the statutory purpose to insure , and to tilt back to prestatutory imbalance the scales of economic bargaining power which it was the Act's central purpose to bring into closer equilibrium. 70 For example , Resp. Exh. 8 (campaign literature , p. 2) emphasizes the absence of a "national agreement" which is "imposeldl " on locals. 71 As indicated by credited testimony of Respondent 's witness, International President Griepentrog. 72 Neither are they, as indicated, sacrosanct or impregnable 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Labor Relations Act, it is not necessary to import either Robert's Rules of Order or common-law intricacies " Feinberg, J., in N.L.R.B. v. M & M Oldsmobile, Inc., 377 F.2d 712, 717 (C A. 2). As shown, until the June 18, 1966 agreement restricted to Respondent and Local 305, preceding collective agreements7 3 were subscribed by Respondent, Local 305, and International. Respondent argues that the failure of the preamble to enumerate International and the presence of the words "Approved as to content and form" preceding International's subscription at the end of the agreement, rule International out as a "party" to those agreements. This is by no means clear, particularly since the subscription is immediately pre- ceded by words identifying the subscribers as "parties." Even in the absence of those words, however, it may not be assumed that International's subscription, as Respondent now contends, served merely a "ceremonial" and no other purpose. "Ap- proved as to form and content" coupled with an authorized signature may arguably be regarded as a form of acceptance sufficient to result in contractual obligation, at least to the extent the contract, interpreted in the light of the overall relationships and dealings of the various subscribers, contains 73 Excluding the temporary memorandum-type instrument of October 21, 1965 (G C. Exh 7), which was superseded by the full-length agreement (G C Exh 8) executed shortly thereafter and backdated to October 21, 1965 74 Cf The Crescent Bed Company, Inc., 157 NLRB 296. V Q LaPage, for the past 10 years International 's 8th Regional Director for 7 States including Indiana , with 14 International Representatives under him and around 105 local unions , and for 9 years before that an International Regional Representative , testified that "when I was hired by the International Union, we were given to understand that the right and legal way to identify our signatures on contracts was to write `approved as to content and form.' Then were to sign our name and identify ourselves as regional representative or an International representative of the International Union [I was informed of this by] . the boss when he hired me , Mr Earl Heaton [and also[ our attorneys - Goldberg, Previant and Padway." Upon becoming Regional Director , LaPage identically instructed his subordi- nates International President Griepentrog , an official of International and its predecessor for over 30 years, testified that in those 30 years, during which agreements have been negotiated by International (or its predecessor) naming the employer and local union in the preamble, there has been "never . a company that has told us that that abrogated our recognition " I unqualifiedly reject as unworthy of belief the testimony of Respondent 's witness Meyers, a confused, peripatetic former International Regional Representative many years ago- subsequently employed in the Industrial Relations Department of Fruehauf Trailer Company, as a county surveyor, and now as a salesman for a bridge and culvert company-that in subscribing collective agreements on behalf of International "approved as to content and form" his "function was primarily that of a proofreader" to find "clerical type errors " or "typographical errors " Meyers displayed little effort to conceal his hostility toward International here. His quoted testimony was preceded by an admission that in subscribing the agreements in this fashion he had "reviewledl the contract with regard to ... the policy of the International as reflected in the contract " 75 In this connection , it may be of interest to note that in an Indiana Federal court suit in 1962 seeking damages on behalf of Essex's Logansport " RBM" facility (at which Local 668 and not International was the certified bargaining representative ) against International and Local 668 for breach of a contract similar in format to the one here involved (signed by Local 668, and by Daugherty for International "Approved as to content and form"), Essex through its General Counsel Gallucci took the position that International was "the principal for [its] various and numerous locals" and a party to the contract , whereas International took the position that it was not and therefore not suable under Section 301 of the Taft-Hartley Act for breach thereof. In that Federal court action, Essex stated (C.P Exh 6, p 2) provisions applicable to the one so subscribmg.74 It may confidently be assumed that in the event Respondent sought to enforce such an obligation, it would not-contrary to its present contention-insist that International's subscription was merely "ceremonial."75 Respondent strongly emphasizes wording in the initial (1960) collective agreement recognizing Local 305 as exclusive bargaining representative General Counsel explains this by testimony (which I have credited) of Respondent's witness Wildman, former Essex labor counsel who negotiated and signed the 1960 agreement on behalf of Respondent, that the agreement, incluing its Preamble, "recognition," and Wit- nesseth clauses and signature format, were in effect copied from another collective agreement which had shortly before been negotiated at Essex's Peru (Indiana) plant. Whether or not this accounts for the wording in the 1960 agreement purporting to recognize the local (misnamed Local No. 344 therein), rather than International, as collective-bargaining representative despite International's certification for Fowler shortly prior thereto76 is beside the point, since, even if it does not, such wording is not conclusive so as to alter the true facts, whatever they were. Were it otherwise, employer and that the International . . is a real party in interest to the contract. The evidence to be introduced by plaintiff [Essex] in support of this position will show that throughout the bargaining history between the parties , the International has always assumed complete control of and responsibility for negotiating the terms of the labor agreement , has consistently policed all labor agreements between the parties (processing grievances , handling arbitration cases, authorizing strikes) and by its conduct has given the company to understand that it is in fact a full party to the agreement . The evidence will further show by virtue of this relationship through the years, the company has relied upon the International union to assume its obligations and responsibilities under the agreement In denying International 's motion to dismiss , United States District Judge Robert A Grant held (in agreement with Essex's contention there) This Court cannot agree with the defendants that it is clear that the contract does not purport to be an agreement between the International Union and the plaintiff The status of the International Union, in this resepct is, at least , uncertain . The final determina- tion of this question might well depend upon the language of the contract itself considered in conjunction with any evidence that might be introduced which would tend to explain the total atmosphere of the negotiations incident to the agreement , including the degree of participation and interest exhibited by the represen- tatives of the International Union " The case was ultimately settled Respondent 's objection to admission into evidence of the settlement agreement (C.P. Exh. 14- Ident.), upon which ruling was reserved at the hearing , is hereby sustained , and its motion to suppress that agreement is hereby granted For purposes of the instant unfair labor practices proceeding, in my view, as shown above, it is unnecessary to decide whether International has been under past contract formats, or is required to be , a "party " for Section 301 suability and possibly other purposes , since the true issue in the instant proceeding is whether or not the employer failed in its statutory obligation under Section 8(a)(5) of the Act to bargain with International If, after such bargaining, the employer was or is aggrieved by any failure or refusal of International -not here claimed - to sign an agreement reached , ample remedy was and is available under the Act to compel such execution by International . Cf Act, Section 8(d), Osco Steel Company, 168 NLRB No. 146 There is no indication that such relief has ever here been sought by the employer. 76 Daugherty 's testimony further shows that in International's organizational pattern it is not invariably International which is certificated by the Board , for example, at Essex's nearby Logansport "RBM" plant, it was local 668 which was certificated GENERAL TRANSFORMER CO union could by mere agreement negate a Board certification without voice by unit employees.77 It may further be observed that there was no legal obstacle to the selection of the format (even assuming the "recogni- tion" wording of the Fowler agreement was not merely copied from the Peru agreement, but was by design) of the instru- ment, including its manner of subscription, by International and its subsidiary Local 305, in the manner here utilized (with Respondent's assent), without erasing the officially certificated bargaining representative capacity of International. As is well known, collective agreements take a wide penumbra of forms. Varying formats and subscriptions are at times utilized in labor law to serve the supposed purpose of exculpation or limitation of liability on the part of the parent union (such as in case of "wildcat" strikes or other local action unauthorized by the parent union78 ) Indeed, comparable formats are utilized in other fields of law, where principals are bound even without disclosure of their identity in preamble, body, or subscription of an instrument, such as real estate leases entered into with lessees by rental agents, superintendents, or rent collectors on behalf of realty owners. In this sense, a local may be regarded as agent of its certificated parent, the agreement per se does not convert agent or subsidiary into parent. Still another tenable view in such a situation is that parent and local union are in effect one and the same-Le., parts of a whole,79 or that they jointly represent the affected employees (who are members of parent as well as of the local).80 77 Although Respondent forcefully argues contractual "investiture" to support its position , another way of viewing this is contractual divestiture See cases cited supra , " 1. International 's Certificated Bargaining Representative Status " 78 In this connection , it may be of interest to note that Essex, vice president for Employee Relations Gallucci , also formerly its General Counsel and of counsel for Respondent here , conceded that with only one other exception Essex 's collective agreements have been subscribed by International as herein, "approved as to content and form ' Gallucci further testified that during the course of collective bargaining with International at Essex's Logansport " RBM" facility ( Local 668), similarly resulting in an agreement subscribed by International "approved as to content and form" during the course of negotiations there, when Gallucci proposed that International as well as Local 668 be named as a party to the agreement , International Representative Daugherty suggested that in that case the Company should release International from liability upon International 's written demand on the Local to cease violating the agreement . Gallucci refused , leaving the introductory paragraph , recognition clause, and signature page un- changed Apparently nobody suggested International need not sign at all Respondent concludes its brief-in-chief by stating (p. 76) "The charging party wants authority without responsibility It wants to keep a wage increase but withhold the consideration which is the quid pro quo for it What it wants is insupportable in law or morals " But there may be another side to this " Lawsuits demanding damages totaling up to $300 million -more than 25 of them resulting from wildcat strikes- are on file against the steelworkers . . the union's general counsel has announced [ He] condemned the strikes . `Some of them are insurrections,' he said `Our contracts say we won't strike-most of them have no-strike clauses ' [He] said that judgment against the international union in one big case could wipe out its $20 ,000,000 treasury " The Washington Post, Oct 31, 1967, p. I1. In any event, if Respondent wished International to sign a bargained agreement without possibly limiting language preceding its subscription , it need but have asked , as it in effect concedes "To be sure, if an employer insists that as the certified representative the International Union sign the agree- ment as the representative , the International Union has no legal alternative but to acquiesce." (Resp . brief, p 30 ) And the facilities for which the Board has been established have always been available to Respondent to erase any question regarding the identity of its 375 However, introspection into such considerations, dwelling as it does on matters of mere format, in a sense falls wide of the fundamental question here, which is not the format that a bargained agreement should take, but rather who must be bargained with? After all, if Respondent, knowing that International had just been certified by the Board, was dissatisfied with entering into an agreement in the form here used, it could readily and lawfully have insisted that Interna- tional be spelled out as a party in the preamble and elsewhere in crystal-clear form, and that it sign the agreement without attempted or purported "qualification " Cf. N.L.R.B v. Wooster Division of Borg-Warner Corp , 356 U S 342 Any refusal by International to execute the bargained agreement would have constituted a violation of the express provisions of Section 8(b)(3) and (d) of the Act There is neither evidence or contention here, however, that International refused or was asked Indeed, credited testimony of International Regional Director LaPage establishes that such requests are complied with by International The basic question of who must be bargained with here, is thus not set at rest by Respondent's suggested simple mechanical expedient of looking at the subscriptions or formats of the agreements themselves 8 1 It is nevertheless true that the fact that a particular signature is affixed to a bargained instrument may import recognition by other signa- ' ories that he was to be bargained with In this respect, it is to be noted that although the parties' 1965-68 agreement (G.C. employees' lawful bargaining representative or to effect a change therein, rather than to resort to the pattern of ex parte self-help in its own interest demonstrated here. Cf. generally Parks v IBEW, 314 H 2d 886 (C A. 4), cert denied 372 U.S. 976 79 Thus, a campaign pamphlet (Resp. Exh 1 ) introduced in evidence by Respondent is entitled , and emphasizes the theme, "ONE UNION " (It is, incidentally , observed, that this same Respondent's exhibit states, for example, that "The Seniority Clause which protects you is a MUST provision in all AIW, AFL-CIO contracts signed for you" lid , p 31 and calls attention to other terms and conditions of employment which "AIW, AFL-CIO contracts provide for" and which "AIW, AFL-CIO insists on " (Id, pp 3-4, emphasis added I With regard to certain other matters, however , such as pensions and insurance coverages, the language employed is, "The IAW advises on . " or "The AIW provides advisory assistance to locals " [Id., pp 5-6 ]) Members and officials of a local are automatically members of International and upon initiation and installation take oaths of allegiance to International (Resp Exh. 3, art 3, pp 10 -11, arts 36 and 37, pp. 93-95.) 80 "The Act does not prohibit the voluntary addition of a party, but that does not authorize the employer to exclude the certified representative from the contract " N.L.R B. v Wooster Division of Borg-Warner Corp , 356 U S. 342, 350 81Decorel Corp., 163 NLRB No 11 The mere fact that Local 305's signature is affixed to the contract does not establish its exclusive bargaining representative capacity -that is the very question here for resolution Signing a contract does not itself establish legal capacity or authority of the signer Identification of the signers of a collective agreement does not serve as a categorical imperative on the issue of whether the statutory bargaining obligation has been fulfilled. Cf Medo Photo Supply Corp. v N.L.R.B , 321 U.S. 678, 683-684 Furthermore, a representative always acts on behalf of principals . It is the principals who are bound by the representative 's acts within the scope of his authority . A union's principals in bargaining are the employees whom it represents in bargaining If an employer were to obtain the signatures of all employees as principals for whom the union has bargained, this would not relieve the employer from the obligation to continue to bargain with the union which those employees have designated Thus, the signatures to the bargained agreement are not per se determinative of who the bargaining representative is, toward whom the bargaining obligation exists under the statute. 376 DECISIONS OF NATIONAL LABOR RELATIONS BAORD Exh. 8) was subscribed as indicated by International, it is that agreement which Respondent and Local 305 purported to "terminate," modify, and extend for 2 years by the June 18, 1966 "supplemental agreement" (G C Exh. 12) without International's subscription or participation Upon the record here made, it cannot be said-within the consistent context of Respondent's uninterrupted overt recog- nition of International as a participant in the bargaining process at all times up and to and including June 10, 1966-that the Employer's bargaining obligation vis-a-vis Inter- national legally ended between June 10 and 17, 1966, when the employer commenced "bargaining" without International. The fact that a blockage in collective negotiations occurred on June 10 or 16 because of the seeming inability to resolve the difference in viewpoint on the issue of contract extension between the employer on the one hand, and, apparently, both International and the Local on the other hand, did not free the Employer to bargain with the Local alone (or to seek direct approval from the rank-and-file members) to the exclusion of International. To do this, and to do it in the manner here described, was a violation of the Employer's statutory obliga- tion to bargain with International-regardless of the format, as to signature or otherwise, of bargained agreements reached or which might be reached.82 Medo Photo Supply Corp. v. NL R.B, 321 U.S. 678, 683-684, Independent Stave Com- pany, Inc , 148 NLRB 431, enfd 352 F.2d 553 (C.A. 8), cert. denied 384 U S. 962, Quaker State Oil Refining Corporation, 121 NLRB 334, 338, 367, 368, enfd 270 F 2d 40, 45-46 (C.A 3), cert denied 361 U.S. 917 3. Respondent's Bypass of Union When, by June 16, Respondent had failed to obtain that assent which it had consistently sought prior to then from International to Respondent's proposed 2-year extension of the subsisting collective agreement, Respondent deliberately proceeded to negotiate without International and to attempt to obtain its employees' approval thereof. To this end, Respondent on June 17 reopened negotiations with Local 305 officials whom it summoned to its plant office, in the absence of International and without notice .to International, after improving upon its last offer (June 10) to International, Respondent prevailed upon Local 305 officials in its plant office to submit the proposed contract extension directly to the employees for their approval, notwithstanding even the opposition of Local 305 officials to such extension. Also, Respondent's improved offer of June 17 made to Local 305 officials in the absence of International, was further unilat- erally augmented and announced by Respondent to its employees for a vote by them, without bargaining with International (nor, for that matter, even with Local 305).83 As stated by the Supreme Court in N.L.R.B. v. Wooster Division of Borg-Warner Corp., 356 U.S. 342 at 350 The `ballot' . deals only with relations between the employees and their unions It substantially modifies the collective-bargaining system provided for in the statute by weakening the independence of the `representative' chosen by the employees. It enables the employer, in effect, to deal with its employees rather than with their statutory repre- sentative Cf Medo Photo Corp. v Labor Board, 321 U S. 678 This may be taken to be doubly true where local officials, employed in the plant, are summoned, as here, into the plant office, "that locus of final authority in the plant" (cf General Shoe Corporation, 97 NLRB 499, 502), and subjected to employer exhortation in the designed absence of the employ- ees' certificated International Representative who is not subject to such economic and personal pressures The employer is prohibited from making unilateral changes in working conditions during negotiations-even though the terms of employment are thereby improved-lest the union be denigrated in the employees' eyes and its existence, as an inevitable result, imperiled. N L R.B v Crompton Highland Mills, Inc., 337 U.S 217 (1949), NL R.B. v. Insurance Agents' International Union, supra, 361 U.S. at 485 (dictum). [Leventhal, J., in United Steelworkers of Amer- ica, AFL-CIO v. N.L.R.B. (Roanoke Iron & Bridge Works, Inc ), 390 F 2d 846 (C.A.D C.).] [the employer's] conduct plainly created an atmos- phere not conducive to a free exchange of ideas between the Union and its constituents concerning the negotiated agreement, and thereby constituted an inexcusable intru- sion into the private affairs of the Union and the employees it represented [Paranite Wire & Cable Division, Essex Wire Corporation, 164 NLRB No. 48. Cf. General Electric Company, 150 NLRB 192, 193, 194-195, 196, 262-266, Quaker State Oil Refining Corporation, 121 NLRB 334, 345-346, 367-368, enfd 270 F 2d 40, 45-46 (C A. 3), cert. denied, 361 U.S. 917.1 4. Threats The complaint alleges that Respondent threatened its employees that unless it accepted Respondent's proposal for a 2-year contract extension they would receive no wage increase. The proof shows that on June 17 Fowler Plant Manager Sturtz, appealing directly to the employees to vote on its proposition, did indeed (according to his own testimony) tell them-in response to their questioning-that if they failed to accept the company's proposed contract extension, "you won't get the money, probably have to live out the life of the present contract " Respondent has moved to dismiss this allegation of the complaint on the theory that it cannot be an illegal threat to state that one intends to do (or refrain from doing) that which he has a right to do (or refrain from doing) There is no need to quarrel with this generally supportable platitude, nor is 82 Under all circumstances of this case, I do not regard International Representative Daugherty's statement to Overbey indicating that the latter sign for Local 305 the agreement presented by Sturtz in view of the Local 305 vote thereon, is determinative of the issue here, namely, Respondent 's obligation to bargain with International as the Board- certified bargaining representative of the employees. Cf. N.L.R.B. v. Wooster Division of Borg-Warner Corp., 356 U S 342, 347, wherein, likewise upon recommendation of the International , the Local acceded to the employer's request to enter into an agreement containing controversial provisions insisted on by the employer but unacceptable to the International, which refused to subscribe the agreement and instead filed unfair labor practice charges of violation of Section 8(a)(5) against the employer This circumstance did not deter the Supreme Court from agreeing that the employer had violated the Act. 83 An employer violates his statutory duty to bargain if while negotiations are sought or in progress he unilaterally institutes changes in existing terms and conditions of employment . N.L.R.B v. Katz, 369 US 736 GENERAL TRANSFORMER CO there occasion here to survey the metes and bounds to which it (in company with similar attractive semantic universals) may be subject. (Cf., e.g , Textile Workers v Darlington Co , 380 U S 263, 274, fn 20.) The difficulty with Respondent's position is, it did not happen that way If Respondent had made and confined to International and the Local its statement that there would be no wage increases without a contract extension, it would not have been unlawful However, the statements were made by Respondent in a direct appeal by it to its employees, in a contextual cloud of attempted employer estrangement of employees from their certified collective bargaining representa- tive.84 It was Respondent itself who deliberately chose to create this contextual cloud Viewing what happened, as is only fair, in the circumstantial crucible of what had already transpired and what was transpiring, rather than in a lintfree vacuum, it is evident that the Employer was in effect placing a condition upon the wage increases it was dangling before its employees, namely, that they were contingent upon employ- ees' rejection of their certified collective bargaining representa- tive's unflinching opposition to a contract extension-indeed, upon the employees' acceptance of an employer proposition (G.C. Exh. 12) which it had not even totally discussed or negotiated with International. Thus to convey the message to represented employees that they could not have wage increases unless they in effect parted company from their statutorily certified collective bargaining representative constituted a threat not to increase wages if employees continued to bargain collectively in the manner they had elected to do and as they had the statutorily guaranteed right to do, through their -certified collective bargaining representative. Cf. NL.R.B v Wooster Division of Borg-Warner Corp., supra; United Steel- workers of America, AFL-CIO v. N.L.R.B. (Roanoke Iron & Bridge Works, Inc ), supra, Paranite Wire & Cable Division, Essex Wire Corporation, 164 NLRB No. 48, General Electric Company, 150 NLRB 192, 195-197, 266 A right is not free when shackled in this way by one having power to make the shackles hurt, economically or otherwise Since the described actions of Respondent interfered with, restrained, and coerced its employees in the exercise of their right to bargain collectively through their certified representative in the normal way contemplated by the Act, free from such employer fetters or disruptive end-runs around the employees' representative, I hold it to have been in violation of Sections 8(a)(1) and (5) of the Act as alleged. Respondent's motion at the hearing, upon which decision was reserved, to dismiss this allegation of the complaint, is accordingly denied 5. Recapitulation This, then, is a proceeding involving three parties an International Union certified by the Board after an official election and still holding that certificate, with no other union certified or designated additionally or in its place; an Employer who has not only at all times to and including June 10, 1966 bargained side by side with that International and its Local subsidiary, but has up to and including June 16 affirmatively sought out the International in order to engage in collective bargaining, and, finally, the International's subsidiary Local, 84 Cf, e.g, Boyle's Famous Corned Beef Co , 168 NLRB No. 46, General Electric Company, 150 NLRB 192, 195-197, 266 377 which has at all times to and including June 10 participated in collective bargaining with the Employer side by side with its parent International Union, and which Local has not appeared in this proceeding although named and served as a party In May, 1966 the Employer sought modification of a subsisting collective agreement subscribed by these three parties in 1965, which by its terms was effective for 3 years, until 1968, and which contained a provision precluding unilateral modification or reopener. The reason for the desired modification was that the Employer was losing employees to an intolerable degree because of wage rate increases in competing plants. In seeking this modification, the Employer first contacted International in order to open negotiations In the ensuing negotiations, participated in by all three parties, the Employer, as a condition to the proposed wage increases, insisted upon a 2-year extension of the subsisting collective agreement, in effect converting that to a 5-year agreement, which both International and the Local consistently refused to and including June 10. On June 16 the Employer privately met with international, which continued to refuse the proposed contract extension. On the same day (June 16) the Employer met privately in the plant office with the Local and succeeded in persuading its officials (all plant employees whom the Employer had summoned to its office) to call a Local membership meeting for the following evening (June 17) to consider the proposition rejected by International and the Local On the afternoon of June 17, again in the absence of International (the Board-certificated representative of the employees) and without notice or attempt at notice to International, the Employer again met privately with the Local, engaging in negotiations with the Local culminating in an improved offer by the Employer to the Local alone of wages, terms and conditions of employment, dependent upon a 2-year contract extension-better than that which had been proposed by the Employer at the last all-party negotiating session of June 10-which the Employer thereafter communi- cated directly to employees in plant speeches, during the course of which further improvement was granted to the employees directly by the Employer, unilaterally and without consultation with either the International or its Local. The Employer urged employees to vote in favor of its latest proposal, at a Local membership meeting to be held following the Employer's speeches, indicating that unless they did so they would receive no wage increases At that Local member- ship meeting, which was immediately thereafter held under confused and disorderly conditions, the Local membership approved the Employer's latest proposal, which was then incorporated into a written agreement which the Employer signed with the Local only. Although that agreement in form and in terms purports to modify and extend for over 2 years the subsisting (1965-68) collective agreement to which Inter- national is a signatory, at no time was it bargained with nor presented to International for signature or approval, nor was it at any time subscribed or approved by International. Respondent has failed to sustain its burden of proofB 5 of establishing by a preponderance of the substantial credible evidence that International has not been and is not the authorized collective bargaining representative of Respondent's employees in the unit found appropriate in the Board's 1960 85 See cases cited supra, " 1. International 's Certificated Bargaining Representative Status." 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD certification of International as such representative. Under these circumstances, within the context of the record as a whole, I find and conclude that the Employer violated its obligation under Section 8(a)(5) and (1) to bargain collectively with International, and that the Employer interfered with, threatened, and coerced its employees in the exercise of their rights under Section 7, in violation of Section 8(a)(5) and (1), of the Act Independent Stave Company, Inc , 148 NLRB 431, enfd 352 F 2d 553 (C.A 8), cert denied 384 U.S 962 86 Cf Decorel Corp , 163 NLRB No 11, General Electric Company, 150 NLRB 192, 194-195, 262-266, Quaker State Oil Refining Corporation, 121 NLRB 334, 345-346, 367-368, enfd 270 F.2d 40, 45-46 (C.A. 3), cert denied 361 U.S. 917, John L Clemmey Company, Inc, 118 NLRB 599. Upon the foregoing findings and the entire record, I state the following CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2 International Union, Allied Industrial Workers of Amer- ica, AFL-CIO, and its affiliated subsidiary, Local 305, International Union, Allied Industrial Workers of America, AFL-CIO, have at all material times been and are labor organizations within the meaning of Section 2(5) of the Act 3. At all material times, the following has constituted and now constitutes a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act All production and maintenance employees, including group leaders, a first aid-production employee, and a combination watchman-janitor-production employee of Respondent em- ployed at its Fowler, Indiana plant, exclusive of office clerical employees, guards, professional employees, and all super- visors as defined in the Act 4. At all material times, International Union, Allied Indus- trial Workers of America, AFL-CIO, has been and is the exclusive bargaining representative of Respondent's employees in the foregoing appropriate unit within the meaning of Section 9(a) of the Act 5. By (a) failing and refusing to bargain collectively with said International as exclusive bargaining representative of the employees in the aforesaid appropriate bargaining unit since on or about June 10, 1966, (b) bargaining or attempting or purporting to bargain with said unit employees without said International, on and since June 17, 1966; (c) purporting by instrument dated June 18, 1966 to amend a collective agreement 86 It is noted that in Independent Stave , as here , (1) the International Union was the Board -certified bargaining representative and (2) prior collective agreement Preamble had identified only the Local as a party , and, unlike here, (3) prior collective agreement had been concluded and signed between the employer and the Local alone (148 NLRB at 436). Board and Court held the employer to have violated Section 8(a)(5) and ( 1) of the Act by entering into a purported collective agreement with the Local over the opposition of the International . Respondent here calls attention to a post -Board proceed- ing stipulation between the parties in Independent Stave indicating that certain agreements between the parties in that case were not before the Board. However , both the record and the trial examiner 's decision in that case (officially noticed here ) indicate that not only was negotiating procedure described but also that contractual wording (e.g., Tr pp. dated October 21, 1965 and effective until October 21, 1968, subscribed by said International, by extending its term to December 13, 1970, without the subscription or concurrence of said International, (d) granting benefits including wage increases, to said unit employees without negotiating the same with said International, Respondent has engaged and is engaging in unfair labor practices in violation of Section 8(a)(5) and (1) of the Act. 6. By engaging in such failure and refusal to bargain, Respondent has interfered with, restrained and coerced, and is interfering with, restraining and coercing, its employees in the exercise of their statutory rights, in violation of Section 8(a)( 1) of the Act 7. By threatening its said unit employees with loss of future benefits unless said employees authorized and approved the extension of the duration of said subsisting collective agreement dated October 21, 1965 until on or about December 13, 1970, contrary to the express refusal of the collective bargaining representative of said employees to agree thereto, Respondent has engaged and is engaging in unfair labor practices in violation of Section 8(a)(5) and (1) of the Act, and has interfered with, restrained and coerced, and is interfering with, restraining and coercing, its employees in the exercise of their statutory rights, in violation of Section 8(a)(1) of the Act 8 The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act THE REMEDY Having found that Respondent has engaged in certain unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, it will be recommended that Respondent be required to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. It will be recommended that Respondent be ordered to bargain collectively upon request, with International as the exclusive representative of the employees in the appropriate unit and embody in a signed agreement any understanding reached. It will also be recommended that Respondent be required to cease and desist from performing or giving effect to its agreement dated June 18, 1966, with Local 305; without, however, affecting any wage increase, wage rate increase, vacation pay, starting pay differential, or other benefit placed into effect or provided for under said June 18, 1966 agreement or otherwise. Upon the basis of the foreoging findings of fact and conclusions of law and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby make the following: 69-72 ) was quoted in testimony at the hearing , and considered and dealt with by the trial examiner in his decision. Furthermore , the indicated post-Board stipulation and record show that the agreements themselves were before the Court "for consideration by the Court " (as the stipulation recites ), which enforced the Board 's order affirming the decision of Trial Examiner George J. Bott. Certiorari was subsequently denied by the Supreme Court . There is no indication here that reargument or reopening of Independent Stave has ever been sought from the Board or elsewhere The objections to Respondent's offer in evidence of the record in Independent Stave (Resp . Exhs 42 and 42-A) are sustained In trial and appellate litigation, a party is always free to argue the applicability or inapplicability of the decision in another case, and may if essential for that purpose resort to the record of the other case, without the necessity for placing the record in evidence. GENERAL TRANSFORMER CO. 379 RECOMMENDED ORDER General Transformer Company, its officers, agents, succes- sors and assigns, shall 1 Cease and desist from (a) Failing or refusing to bargain collectively with Inter- national Union, Allied Industrial Workers of America, AFL- CIO, as exclusive representative of Respondent's employees in the following appropriate collective bargaining unit All production and maintenance employees, including group leaders, a first aid-production employee, and a combination watchman-janitor-production employee em- ployed at Respondent's Fowler, Indiana plant, exclusive of office clerical employees, guards, professional employees, and all supervisors as defined in the Act. (b) Bargaining or attempting or purporting to bargain with said unit employees without said International. (c) Purporting to have amended, or to hold out or represent as having been amended, a collective agreement dated October 21, 1965, subscribed by said International, through or by virtue of an instrument dated June 18, 1966 subscribed by Respondent and Local No. 305, International Union, Allied Industrial Workers of America, AFL-CIO, purporting to extend the term of the aforesaid October 21, 1965, collective agreement to December 13, 1970. (d) Granting benefits, in the form of wage increases or otherwise, to said unit employees or any of them without negotiating the same with said International (e) Warning or threatening its said unit employees or any of them with loss of future benefits unless said employees authorize or approve extension of the duration of, or any other change or modification in, any subsisting collective agreement without having negotiated such change or modifica- tion with said International, or contrary to the refusal of said International to agree thereto or submit same for ratification or other action by said employees. (f) Performing or giving effect to its agreement dated June 18, 1966, with Local No. 305, International Union, Allied Industrial Workers of America, AFL-CIO, provided, however, that nothing herein shall affect any wage increase, wage rate increase, vacation pay, starting pay differential, or any other benefit placed into effect or provided for by virtue of said June 18, 1966 agreement or otherwise, nor shall anything herein prejudice the assertion by employees of any rights acquired thereunder (g) In any like or related manner interfering with the efforts of said International Union, Allied Industrial Workers of America, AFL-CIO, to bargain collectively for employees in said unit. 2. Take the following affirmative action necessary to effectuate the policies of the Act (a) Upon request, bargain collectively with International Union, Allied Industrial Workers of America, AFL-CIO, as exclusive representative of all employees in the appropriate unit described above, concerning rates of pay, wages, hours, and other terms and conditions of employment, and embody in a signed agreement any understanding reached. (b) Post at its plant in Fowler, Indiana, copies of the Notice attached hereto as "Appendix A.s87 Copies of said Notice, on forms provided by the Regional Director for Region 25, shall, after being duly signed by Respondent's authorized representative, be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material (c) Notify said Regional Director, in writing, within 20 days from receipt of this Decision and Recommended Order, as to what steps have been taken to comply therewith.8 8 87 In the event that this Recommended Order be adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the Notice In the further event that the Board 's Order be enforced by a decree of a United States Court of Appeals , the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." 88 In the event that the Recommended Order be adopted by the Board, this provision shall be modified to read * "Notify said Regional Director, in writing, within 10 days from the date of this Order, as to what steps have been taken to comply herewith." APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that. After a hearing duly held, it was determined that General Transformer Company has violated the National Labor Rela- tions Act. In order to remedy this conduct, we have been required to post this notice and to take the following steps WE WILL bargain collectively in good faith, upon re- quest, with International Union, Allied Industrial Workers of America, AFL-CIO, as the exclusive representative of all of our employees described below, with respect to rates of pay, wages, hours, and other terms and conditions of employment, and embody in a written agreement any understanding reached. The collective bargaining unit is All production and maintenance employees, including group leaders, a first aid-production employee, and a combination watchman-janitor-production employee em- ployed at our Fowler, Indiana plant, exclusive of office clerical employees, guards, professional employees, and all supervisors as defined in the Act. WE WILL NOT bypass International Union, Allied Indus- trial Workers of America, AFL-CIO, and bargain or attempt to bargain directly with our employees or with Local No. 305, International Union, Allied Industrial Workers of America, AFL-CIO, in the absence of Interna- tional Union, Allied Industrial Workers of America, AFL- CIO WE WILL NOT attempt to extend the duration of any collective agreement subscribed by International Union, Allied Industrial Workers of America, AFL-CIO, without negotiating with and obtaining the approval of International Union, Allied Industrial Workers of America, AFL-CIO, and WE WILL NOT attempt to get our employees or Local No. 305, International Union, Allied Industrial Workers of America, AFL-CIO, to enter into any such extension with us alone. WE WILL NOT warn or threaten any of our employees 380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with loss of higher pay or other benefits unless said employees extend the duration of (or otherwise modify) the collective agreement into which we have entered with their collective bargaining representative, by appealing to our employees to vote on such a modification even though their collective bargaining representative has not seen fit to submit it to the employees for a vote. Wr. WILL NOT perform or give effect to our agreement dated June 18, 1966, with Local No. 305, International Union, Allied Industrial Workers of America, AFL-CIO, which purports to extend the duration of our collective agreement of October 21, 1965 to December 13, 1970. However, this will not affect or prejudice any wage increase, wage rate increase, vacation pay, starting pay differential, or any other benefit placed into effect or provided for under the June 18, 1966, agreement WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed them in Section 7 of the Act, except to the extent that such rights may be affected by a union shop agreement as authorized in the State of Indiana by virtue of Section 8(a)(3) of the Act as modified by the Labor- Management Reporting and Disclosure Act of 1959. GENERAL TRANSFORMER COMPANY (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate di- rectly with the Board's Regional Office, 614 ISTA Center, 150 W. Market Street, Indianapolis, Indiana 56204, Telephone 633-8921