North Coast Counties Dist. Council of Carpenters

NORTH COAST COUNTIES DIST. COUNCIL OF -CARPENTERS North Coast Counties District Council of Carpenters, United Brotherhood of Carpenters & Joiners of America, AFL-CIO; and Carpenters Local Union No. 751, United Brotherhood of Carpenters & Joiners of America, AFL-CIO and Cotati Cabinet Shop, Inc., d/b/a Cotati Cabinet Manufacturing Corp. Case 20-CB-2389 , June 23, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND KENNEDY On August 26, 1971, Trial Examiner David E. Davis issued the attached Decision in this proceed- ing. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Respondent Unions filed a brief in support of the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three -member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm only such of the Trial Examiner's rulings, findings , and conclusions as are consistent herewith. The principal issue in this case is whether or not the Respondents ' unlawfully refused to enter into a written contract embodying terms and conditions of employment . In order to reach a conclusion thereon, it is necessary to pass on the questions of whether the Respondents and the Employer arrived at a complete accord on the terms of a collective -bargaining agreement and, if so, whether the conceded condition precedent of employee ratification had been satis- fied.2 The Trial Examiner was of the view that he need not decide whether in fact a complete agree- ment was reached because he concluded that, in any event, the condition precedent had not been met and therefore he recommended dismissal of the com- plaint. We find merit in the General Counsel's exceptions to these findings. The facts are, in the main, uncontested, and the Trial Examiner has substantially summarized the testimony. Briefly, the parties have had successive i North Coast Counties District Council of Carpenters, United Brother- hood of Carpenters & Joiners of America, AFL-CIO, and Local Union 751 of that labor organization , herein sometimes referred to as Respondent District Council and Respondent Local 751, respectively. 2 The Trial Examiner held that such ratification was a prime element for conclusion of an agreement between the parties, and no exception was taken thereto. 3 Prior to the second vote Lovmark told the employees that he could get a large contract which would guarantee full employment for 3 years if his wage offer were accepted , but he could not guarantee full employment if it 197 NLRB No. 149 905 contracts since August 1965, and the issues herein arose in connection with the renegotiation of the contract expiring July 15, 1970. As was customary, the Respondents notified the Employer that they desired to reopen the existing contract and specified proposed changes. There were three requests set forth, one of which was an hourly wage increase of 90 cents (30 cents each year for each of 3 years of contract duration). Discussions took place in May 1970 and the Company agreed to the other two requested modifications but counterproposed a 75- cent wage increase, i.e., 25 cents each year for 3 years. This was submitted to a vote of all the employees, who rejected it, and Local 75 l's business agent, Mackenzie, so informed Mr. Lovmark, owner and manager of the Company. However, shortly thereafter an employee told Mackenzie he did not think that nonmembers should have the right to vote on the proposal, and about a week later Mackenzie told Lovmark that he wanted to conduct another vote as there had been some irregularity in the first. The second vote was taken, limited to union members only, and resulted in acceptance of Lov- mark's offer.3 According to Lovmark's uncontradict- ed testimony, Mackenzie then informed him of the employee acceptance of his offer and told him that "You have got a contract." Similarly, sometime in the late fall Cooper, executive secretary of Respon- dent District Council, told Lovmark that he had a contract. It was not until early November that Mackenzie brought a contract for signature, but, because Lovmark was too busy to sign it at that time, Mackenzie took it to Cooper for his signature. The document was returned to Lovmark in late Novem- ber, at which time he noticed that it contained changes in addition to the three agreed on. On November 20, representatives of the Respondents4 and of the Company met. Lovmark took the position that an agreement had already been reached which the employees favored, and he suggested that if Ramos did not think so perhaps Ramos should meet with them and find out. A meeting was set up for that afternoon, at which Ramos told the employees he thought there should be a higher settlement, said were rejected The Respondents' argument concerning the possible impact of such statements is misplaced, as the validity of a union-conducted ratification vote is not to be determined by all the same criteria as a Board- conducted election . Accordingly, it is immaterial whether Foreman Dunbar also made such statements and whether Owens was also a foreman and made similar statements, as found by the Trial Examiner. 4 Respondents' representatives included Ramos, executive secretary- treasurer of Carpenters' California State Council 906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they were slipping behind other areas, and advised them of wage rates prevailing in Bay Area agree- ments.5 The employees at that time voted to authorize further contract negotiations. 1. On the above facts the Respondents contend that there was no meeting of he minds and therefore they cannot be held in violation for refusing to execute an agreement which did not exist. The Respondents contend that this is so because Cotati was a party to a standard agreement, but with different wage scales and job classifications; that changes had been negotiated in the standard agree- ment and that they had assumed that those changes would be applicable to Cotati.6 Respondents assert that it is those changes which comprised the significant differences in the document submitted to Lovmark in November. Lovmark, however, denies that any modifications resulting from any other bargaining were to be incorporated and has insisted throughout that the agreement reached was identical to the expiring contract with the three aforemen- tioned changes. We find no merit in the Respondents' argument. It is clear from the record that historically the parties bargained about only those provisions in the existing contract concerning which changes were sought. For this reason we are persuaded that in 1970, when the parties negotiated only concerning the three modifi- cations noted above, they reached a complete and separate collective-bargaining agreement consisting of the prior agreement with those three changes. There is no evidence of any understanding that there would be additional changes in the contract based on any changes in the master agreement,7 nor is there a scintilla of evidence that the employees were ever asked to ratify any changes other than the three concededly negotiated. Indeed, all the evidence is to the contrary. Thus, only Lovmark's offer of the three changes was submitted to the employees, and Mackenzie told Lovmark that the employees had ratified that offer. 2. We also disagree with the Trial Examiner's conclusion that even if there were an agreement it never became effective because (a) the members only vote ratifying the agreement was invalid in that it excluded from participation unit employees not members of the Union, and (b) the parties agreed in 5 Ramos testified that he believed that the Cotau "contract" was undermining the Bay Area agreements, that he had probably been told this by "some" Bay Area contractors, and that there was "some unhappiness" about this Cotati contract among those contractors 6 There is no indication that the parties followed any area bargaining pattern or adopted any multiemployer contract Rather, the "master agreement" appears to be only a standard form document embodying the Unions' bargaining proposals 7 Mackenzie testified that Lovmark "did offer to pick up the new benefits under the Mill Cabinet Trust," but there is no document bearing this title The Trial Examiner reports this as testimony concerning an November that a new vote would be determinative of the employees' desi;es and that the parties would abide by the result of that vote, so that the employee rejection at that time was effective. We have long held that the method of voting on contract ratification is within the descretion of a labor organization.8 Here, dissatisfaction with the first vote arose within the Union itself when an employee questioned the propriety of the vote by all employees, and Mackenzie therefore called for the members' only vote. The Respondents had the choice, they chose to permit only members to vote on the issue of contract ratification, and the results are binding on the Respondents unless, as the Trial Examiner found, both parties agreed that a new vote be held. We cannot adopt the Trial Examiner's character- ization of the discussion between Ramos and Lov- mark on November 20 as constituting an agreement to a new employee vote. The conversation as reported by Ramos is, at best, ambiguous, for Lovmark's statement is subject to interpretation either as an agreement to ignore the prior employee vote and have the Union conduct a new poll, or as merely indicating that if Ramos were to check with the employees they would verify Lovmark's position that they favored the contract already agreed on. The Trial Examiner accepted the first interpretation. We deem the second to be the more plausible when Lovmark's statement is considered in light of the entire context. Thus, there was a dispute as to whether or not an agreement had been finally reached, and Lovmark consistently took the position that contract terms had been concluded and the employees had ratified them. It is unlikely, in view of his consistent request that a contract be signed as approved in the second vote, that he would have proposed or agreed to resubmission of the question to the employees. Under these circumstances, we find, contrary to the Trial Examiner, that the November poll had not been agreed to by the Company and hence was of no effect. 3. The Respondents' final contention is that Cooper's acquiscence was a prerequisite for reaching agreement, and that as he had not approved the terms no final contract had been concluded. His role is referred to throughout the record as one of agreement "to 'pick up' the changes in the master agreement," but does not find that such agreement was actually reached . Rather, the Trial Examiner concluded that the Respondents did not discharge their obligation to notify Cotatf that changes in the standard agreement were under negotiation and would be submitted to the Company when completed 8 United Cement, Lime and Gypsum Workers, International and Local 445 (Nevada Cement Co), 173 NLRB 1390, General Teamsters, Chauffeurs and Helpers Local 249 (V & M Manufacturing Company), 168 NLRB 389, cf Jack Roesch, d/b/a Roesch Transportation Company, 157 NLRB 441, North Country Motors, Ltd, 146 NLRB 671 NORTH COAST COUNTIES DIST. COUNCIL OF CARPENTERS 907 "verification" and signature. Cooper himself testified that he had stated that if the employees "will O.K. the agreement in my presence, I will sign the agreement," and was, of course, aware that the men had ratified the agreement, as evidenced by his statement to Lovmark in the late fall that Lovmark had a contract. It is therefore clear that Cooper's function was merely perfunctory, consisting of determining whether the employees had approved the terms and whether the document reflected that agreement. For all the above reasons, we find that the parties had reached complete agreement on contract terms, that the contract was duly ratified by the employees, and that all that remained was for the Respondents to reduce the agreement to writing and to execute it. We further find that by failing to do so despite numerous requests by the Company, the Respon- dents violated Section 8(b)(3) of the Act. The Effect of the Unfair Labor Practices Upon Commerce The activities of the Respondents set forth above, occurring in connection with the operations of the Employer described in section I of the Trial Examiner's Decision, have a close, intimate, and substantial relationship to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. THE REMEDY Having found that the Respondents engaged in and are engaging in certain unfair labor practices, we shall order that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing and the entire record in this proceeding, the Board rejects the Trial Examiner's Conclusions of Law numbered 4 and 5 and substitutes the following: AMENDED CONCLUSIONS OF LAW 4. In late May or early June 1970 when the employees voted to ratify the agreement, the Respon- dents and the Employer reached complete agreement on the terms of a collective-bargaining agreement covering the employees in the unit described in paragraph 2 of the Trial Examiner's Conclusions of Law. 5. By refusing and continuing to refuse since late May or early June 1970 to reduce to writing and execute a collective-bargaining contract embodying the terms of the collective-bargaining agreement between the Employer and the Respondents covering the employees in the above unit, the Respondents have engaged in and are engaging in unfair labor practices within the meaning of Sections 8(b)(3) and 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondents, North Coast Counties District Council of Carpen- ters, United Brotherhood of Carpenters & Joiners of America, AFL-CIO; and Carpenters Local Union No. 751, United Brotherhood of Carpenters & Joiners of America, AFL-CIO, their officers, agents, and representatives, shall: 1. Cease and desist from refusing as the exclusive bargaining representative of all employees in the unit herein found appropriate to bargain collectively with the Employer, by failing and refusing on request to execute the collective-bargaining agreement agreed to by the Respondents and the Employer in late May or early June 1970 or from engaging in any like or related conduct in derogation of its statutory duty to bargain. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request by Cotati Cabinet Shop, Inc., d/b/a Cotati Cabinet Manufacturing Corp., as the exclusive representative of the employees in the unit herein found appropriate execute a written agree- ment embodying the terms of the understanding reached in late May or early June 1970 between Respondents and Cotati Cabinet Shop, Inc., d/b/a Cotati Cabinet Manufacturing Corp., covering the employees in the appropriate unit. The appropriate unit is: All employees of the above Company at its facility at Rohnert Park, California, excluding office clerical employees, guards, and supervisors as defined in the Act. (b) Post at their offices and meeting places in and about Santa Rosa, California, copies of the attached notice marked "Appendix."9 Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by Respondents' authorized representatives, shall be posted by them immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter, in 9 In the event that this Order is enforced by a Judgment of a United States Court of Appeals , the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board " 908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conspicuous places, including all places where notices to members are customarily posted. Reasona- ble steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material. (c) Forward signed copies of said notice to the Regional Director for Region 20 for posting by Cotati Cabinet Shop, Inc., d/b/a Cotati Cabinet Manufacturing Corp., if willing, at its Rohnert Park, California, location where notices to employees are customarily posted. (d) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps the Respondents have taken to comply herewith. APPENDIX NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT unlawfully refuse to bargain collectively in good faith with Cotati Cabinet Shop, Inc., d/b/a Cotati Cabinet Manufacturing Corp., as the exclusive representative of the said Employer's employees by refusing to execute and sign the collective-bargaining agreement to which we agreed in late May or early June 1970, and we will not engage in any like or related conduct in derogation of our statutory duty to bargain, provided we remain the representative of the employees in the appropriate unit as prescribed in Section 9 of the Act. WE WILL, on request, by Cotati Cabinet Shop, Inc., d/b/a Cotati Cabinet Manufacturing Corp., as the exclusive bargaining representative of the employees in the appropriate unit, execute a written agreement embodying the terms of the understanding reached in late May or early June 1970 between us and Cotati Cabinet Shop, Inc., d/b/a Cotati Cabinet Manufacturing Corp., covering the employees in the appropriate unit. The appropriate unit is: All employees of the above Company at its facility at Rohnert Park, California, exclud- ing office clerical employees, guards, and supervisors as defined in the Act. 1 z 3 NORTH COAST COUNTIES DISTRICT COUNCIL OF CARPENTERS , UNITED BROTHERHOOD OF CARPENTERS & JOINERS OF AMERICA , AFL-CIO; AND CARPENTERS LOCAL UNION No. 751; UNITED BROTHERHOOD OF CARPENTERS & JOINERS OF AMERICA, AFL-CIO (Labor Organization) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 13018 Federal Building, Box 36047, 450 Golden Gate Avenue, San Francisco, California 94102, Telephone 415-556-3197. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE DAVID E. DAVIS, Trial Examiner: This case was tried before me at Santa Rosa, California, on June 15 and 16, 1971, pursuant to a charge filed on December 30, 1970, and a complaint issued on March 24, 1971. The complaint alleged North Coast Counties District Council of Carpen- ters,' United Brotherhood of Carpenters & Joiners of America, AFL-CIO, and Carpenters Local Union No. 751,2 United Brotherhood of Carpenters and Joiners of America, AFL-CIO,3 were at all times material herein the statutory collective-bargaining representatives of an appro- priate unit of employees of Cotati Cabinet Shop, Inc., d/b/a Cotati Cabinet Manufacturing Corp.4 and that on or about May 21, 1971 the Charging Party and Respondents reached complete agreement on all the terms of a collective-bargaining agreement which Respondents since that date have refused to incorporate in a written contract in violation of Section 8 (b)(3) of the Act. Respondents' point answer admitted certain allegations of the complaint but denied that they had committed any unfair labor practices. The issues presented in this case may be summarized as follows: 1. Did the parties arrive at a complete agreement concerning the terms and conditions of a labor agreement? 2. Did Respondents on and after May 21, 1970, unlawfully refuse to enter into a written contract embody- ing terms and conditions previously agreed on? Herein sometimes referred to as Respondent Council Respondents Herein sometimes referred to as Local 751 or Respondent Local. 4 Herein sometimes called the Charging Party or the Company Respondent Council and Respondent Local are referred to jointly as NORTH COAST COUNTIES DIST. COUNCIL OF CARPENTERS 909 Upon the entire record herein and upon the demeanor of witnesses, I make the following: FINDINGS AND CONCLUSIONS I. THE BUSINESS OF THE COMPANY The Company is a California corporation located in Rohnert Park, California, where it is engaged in the manufacture and sale of cabinets. During the past year, it has purchased and received goods and materials valued in excess of $50,000 directly from suppliers located outside the State of California. I find that the Company at all times material herein has been, and is, engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. If. THE LABOR ORGANIZATIONS INVOLVED It is admitted and I find that each of Respondents is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The Company and Respondents have had successive collective-bargaining agreements since 1965 as follows: August 1, 1965, to August 1, 1966,5 June, 1966, to June 15, 1968,6 and October 9, 1968, to July 15, 1970.7 The evidence showed that it was customary for a representative of Local No. 751 to negotiate with August 0. Lovmark, owner, operator, and manager of the Company. When agreement was reached, it was submitted to the employees of the Company, and on their approval the local union negotiator would draw up the labor agreement, affix his signature, and then secure Lovmark's signature. The agreement was then submitted to Respon- dent Council for "verification" and signature by its executive secretary. The dispute herein centers around the negotiations for a contract to succeed the agreement scheduled to expire July 15, 1970.8 B. The Company's Version of Negotiations Pursuant to the provisions of the agreement in effect, the Respondents, on May 15, gave notice that it wished to reopen the existing contract for "wages and other subject matters related to the Master Agreement." According to Lovmark's testimonial account, he met with S. D. Mac- Kenzie, business, agent of Respondent Local, and Dick Proctor, shop steward and member of the negotiating committee,9 early in May at Lovmark's office. The Union representatives proposed a 90-cent increase in wages for 3 years and changes in job classifications and in health and welfare benefits. Lovmark testified that he agreed to the increase in health and welfare payments from $28 to $35 but said he wanted to think about the other matters. Lovmark was quite emphatic that only these changes were discussed and that he understood the remainder of the agreement was to remain unchanged. About a week later, Lovmark met with MacKenzie again and offered to increase his wages by 75 cents per hour over the next 3 years and agreed to the proposal with regard to the changes in job classifications . MacKenzie replied that he would submit Lovmark's counterproposal to the employees in the unit in accordance with the customary procedure. Shortly thereafter, MacKenzie came into Lovmark's office and informed Lovmark that his employees had turned down Lovmark's counteroffer at a meeting held at the union hall. About 1 week later, MacKenzie came to Lovmark's shop and said he wanted to have another vote of the employees because there had been some irregularity in the first vote. After MacKenzie took the second vote he came into Lovmark's office and, according to Lovmark, said "You have got a contract. They voted to accept the offer." Thereafter, Lovmark went on vacation and re- turned the latter part of July. About the middle of August, K. B. Cooper, executive secretary of Respondent Council, came into the Company's office and told Lovmark he wanted to talk to the employees to verify that they "were doing it right and they knew what they were doing." Either on the same day or a couple of days later, Cooper came into Lovmark's office and told Lovmark, "I have been talking to the men. I don't like it, but you have a contract. Personally, I think you are getting screwed." Sometime in September or October, Lovmark called MacKenzie and asked him about his contract. MacKenzie promised to get it for him. Early in November, MacKenzie brought a contract to Lovmark's office which had been signed by MacKenzie, put it on Lovmark's desk and asked Lovmark to sign it.i0 Lovmark replied, "I am busy right now, I can't do it right now." MacKenzie then said, "Well, I will take it over and have Cooper sign it." MacKenzie thereupon took the contract away with him. About the middle of November, Lovmark went to Cooper' s office asking for his contract but failed to get a copy or an explanation . About the end of November, Lovmark told MacKenzie he needed a copy and MacKenzie delivered to Lovmark's office the identical copy which he had request- ed Lovmark to sign in September or October. Lovmark further testified that the contract called for a 75-cent per hour increase and contained the provisions for changes in job classification and health and welfare benefits as had been discussed. He insisted, however, that certain changes which the contract contained had never been discussed with him. These items he enumerated as follows: (a) Article XXII-industrial fund (b) Article XI, section 1(a)-vacations (c) I Article XI, section 4-union dues checkoff (d) ArticleIXV(a)-eligibihty health and welfare (e) Article XV-dental plan (f) Article XXI-pension plan Thereafter, Lovmark retained David Comb, general manager of Redwood Employees Association, to represent 5 G. C. Exh 6 The record is corrected to show that this exhibit was 9 Lovmark places the date of the meeting as May 4. As the notice to admitted in evidence. reopen is dated May 15, it seems unlikely that May 4 is correct However 6 G C Exh 7. the exact date seems to be immaterial. r G C. Exh 8 10 G. C. Exh. 9. 8 Hereafter all dates will refer to the year 1970 unless otherwise specified 910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Company with regard to negotiations with Respondent. Comb, on December 19, sent a letter" enclosing a document 12 which embodied the contract terms agreed to Lovmark without any other changes. The attorneys representing Respondents replied to Comb on December 23 13 stating that no contract had been agreed on and that Respondents expected to engage in further negotiations with the Company. On cross-examination, Lovmark conceded that LeRoy Dunbar was the plant manager and a supervisor within the meaning of the Act and that the Company made contributions to the union health and welfare funds in behalf of himself and Dunbar. With regard to Randall Owens, Lovmark was quite reluctant and evasive 14 on questions concerning Owens' duties. The gist of his testimony was that Owens was a layout man without any supervisory authority.15 Questioned concerning statements he made to his employees at a meeting that he had called sometime in May, Lovmark at first denied that he had discussed at that meeting the employees' rejection of his 75-cent-per-hour increase over a 3-year period. After further examination, during which Lovmark frequently asked that questions be repeated, Lovmark admitted that he had attempted to have his employees reconsider their rejection of his 75-cent offer by informing them that he had an opportunity to secure several big building contracts, if he knew what the labor costs would be for the next 3 years and that thereby he could provide his employees with steady employment. He denied that he told the employees that if they did not accept his 75-cent proposal he might not get these building contracts but rather that he told them that 75 cents per hour was all he could afford. Lovmark then testified that a law firm, which he had retained, had not represented him in any dealings with MacKenzie. After being shown a letter from a member of the law firm to MacKenzie, Lovmark said that after he received a copy, he "chewed" his lawyer out, told him he was not supposed to interfere, and that the lawyer was not authorized to enter into any agreement with the Union. On redirect examination, the General Counsel asked the following question: Q. (By Mr. Koslow) Let me direct your attention to Respondent's Exhibit No. 1, Mr. Lovmark. This attorney, Mr. Claxon, he was representing you with regard to a dispute concerning payments to the Union's trust fund, is that correct? Upon objection by Counsel for Respondents, the General Counsel stated he was clarifying Lovmark's testimony. I sustained the objection, whereupon the General Counsel proceeded as follows: Q. (By Mr. Koslow) You previously testified, Mr. Lovmark, Mr. Claxon wasn't representing you. What did you mean by that? A. What I meant about this is when the attorney is under retention, you see, they are under retention, that if I call them to come in, sit on this hearing, they are supposed to come and sit there. 11 G C.Exh 11 12 G. C Exh. 10 13GCExh 12 14 Evasive, as the record will show, is a mild characterization of Q. Did Mr. Claxon have anything whatsoever to do with the negotiations for the most recent contract? A. No. Q. And he did represent you with regard to some matters, didn't he? [Emphasis supplied.] A. Yes, about, about the trust fund. Q. So when you said he didn't represent you, you meant with regard to contract negotiations? A. That is right. Subsequently, the parties stipulated that Claxon did deal with MacKenzie concerning certain payments to the Union trust fund but had nothing to do with negotiations concerning the labor agreement. I have set forth in some detail certain aspects of Lovmark's testimony to demonstrate part of the reason I find Lovmark's credibility severely impaired. The General Counsel's attempt to picture Lovmark as a recent foreign arrival who had a poor understanding of the language is unpersuasive. My overall appraisal of Lovmark, not only from his testimony in general but also from his demeanor while testifying, is that of a sharp, calculating, and confident individual who has an excellent understanding of English, commands a fine vocabulary and speaks with little accent. At times, Lovmark deliberately attempted to seek refuge behind a plea that he did not understand or was slow at grasping'the meaning of certain questions. I view these occasions as attempts to secure more time to weigh the impact of alternative replies rather than hesitations of a witness attempting to honestly recall and give a truthful answer. The General Counsel, in addition, engaged in leading and suggestive questions in order to extricate Lovmark from his obvious dilemma when he untruthfully testified that Claxon had not represented him in any dealings with MacKenzie. In short, I do not credit Lovmark where his testimony is contradicted by other witnesses, particularly MacKenzie and Cooper. Frank D. Dunham, an employee of the Company for the past 2 years, called as a witness by the General Counsel, testified that he was a union member and a member of the union negotiating committee in March or April, and that the committee met with MacKenzie to formulate the union demands for a wage scale, job classifications, and health and welfare. He could not recall any other changes being discussed. Around the middle of May, after MacKenzie had met with Lovmark, a meeting of all the employees was held and after MacKenzie told them that Lovmark had offered a 75-cent-per-hour increasers across the board; a vote was taken and a majority voted against acceptance of the 75-cent-per-hour increase. Dunham said that he called MacKenzie that same day or a day or two later and told MacKenzie that a few men who were not union members had voted, that, as they were not initiated into the Union, he didn't think they had a right to vote, that MacKenzie said he would check into it, that a few days later the employees had another meeting in the shop at which another vote was taken, that the vote was conducted by secret ballot, that MacKenzie announced that a majority of Lovmark's testimony. 15 As will appear later in this decision, I find Randy Owens to be a supervisor within the meaning of the Act 16 Twenty-five cents for each of 3 years NORTH COAST COUNTIES DIST. COUNCIL OF CARPENTERS 911 the voters had voted in favor of accepting Lovmark's offer. Dunham further testified that, early in August, Cooper came to the plant to talk to the negotiating committee; that Cooper met with Proctor, O'Dell Gomes, LeRoy Dunbar, and Larry Owens, and himself; that Cooper said, "I hear you boys voted on a contract and accepted it and if that is what you boys want, that is fine with me." On cross-examination, Dunham testified that there were 5 or 6 non-union employees; that only union members participated in the second vote; that the first vote was 15- 11 against acceptance while he could not recall the exact vote the second time except that a majority of the voters were for acceptance of the wage proposals and that MacKenzie had reported that Lovmark had agreed to the increases in contributions to the Union's health and welfare fund. C. Respondent's Evidence Neil E. Light, an employee of the Company for the past 1-1/2 years, testified that during the last part of May he attended a meeting at which the employees cast ballots concerning Lovmark's proposal of a 75-cent-per-hour increase over the next 3 years, that he was not a union member at the time but participated in the vote, that nothing was presented to the employees concerning job classifications or health and welfare, that the vote was 18-7 against acceptance, that he was present when the second vote was taken, that six nonunion members including himself were not permitted to vote, that in between the first and second votes, Lovmark had a meeting in the shop after work, that Lovmark, at this meeting, said that an increase of 25 cents per hour was a fair offer, that if the employees accepted he thought he could get a big contract which would involve 3,000 to 8,000 units and provide steady work for 3 years, that Lovmark also said if he didn't get the contract he couldn't guarantee that the employees would not be laid off because of lack of work, that Randy Owens also spoke to him after the first vote and 'said the employees should accept Lovmark's offer so Lovmark could get more work for them. On cross-examination, Light recalled that a voice vote on Lovmark's offer was taken early in May at the Union hall and that it was unanimously rejected, and that the first vote at the shop was taken the middle of May or end of May and the second vote the latter part of May or early in June.17 I fully credit Light's testimony as his memory concerning the events seemed to be quite accurate. I do not consider his testimony less credible because of his mother's employment by the Carpenters' Union. Eugene Boldt, employed by the Company slightly over 2 years, testified that he was the Union's shop steward at the plant, that Dunbar was a foreman, that Owens was the layout man but was also a foreman, that on May 7, 1971, Owens called him into the office because Boldt had absented himself, that Owens told hum if he missed work again he would be laid off, that he knew that Owens had laid off four men who had been working on the door and leveling machine because Owens felt they were not keeping up with the work, that Owens told these men they were being laid off and personally brought their checks to them, that on another occasion, Stephen Hyatt, an employee, was engaging in some horseplay by tossing a piece of cardboard which struck Owens, and that Owens told Hyatt he was going to be fired but instead Hyatt was laid off for a couple of days. Boldt further testified that on one occasion employee Merlin Shaffer handed him a piece of paper and said, "This is what Randy [Owens] had me sign," 18 and that prior to this he saw Shaffer go into Owens' office and later Dunbar also came in. Boldt also testified that Dunbar told him that Owens had the right to fire but not to hire, that there were votes cast on three different occasions by employees on the question whether Lovmark's offer should be accepted, that the first time the vote was taken by a show of hands and that the result was 3-1 against acceptance, that another vote was taken about a week or 10 days later at the union hall, that the second vote was also by a show of hands and that the result was again about 3-1 against acceptance, that the third vote was a closed vote by secret ballot at the company's premises,19 that at this vote only union members were permitted to vote and that the result was either 12-11 or 13-11 in favor of accepting the 75-cent-per-hour increase, that Dunbar told him about a week before the last vote that Lovmark could not afford to pay any more than the 75 cents he had offered and that the men had better think about it as it meant steady work rather than being laid off if the offer were not accepted, and that 1 week before the last vote Lovmark spoke at a meeting of employees: He told us he was working on a contract down below South San Francisco, probably San Jose, someplace along in there, and an 8,000 unit contract, a little over 8,000 units, and he had already more or less had the contract, but it wasn't signed and if we could vote for the 75 cents which he offered, because it was all he could afford, that he would go back and talk to the builder of these big apartments and see whether he could still get it because the man had given him a verbal agreement, that if he could get this thing settled with us, he would give him the contract. He said we had probably a couple of more big contracts we could get along and we would have steady work for the next three years. It was asked by a couple of men if he could give us a signed contract in writing for a three year contract and he said he couldn't do that, but he said he could guarantee us three years of steady work. Boldt also testified that Lovmark said that if the employees didn't accept the proposal for the 75 cents, he couldn't take the contract for 8,000 units, and that Owens on one occasion prior to the third vote20 told Boldt that he was worried because he was going to have to look for another job as there was no way to keep the men busy if they "don't get this . . . It is up to you guys whether you want to work or don't want to." On the whole, Boldt impressed me as a credible witness 17 Light's testimony as to the date of the votes would seem to be quite second vote. Boldt apparently includes as a vote a mere expression by some correct in view of the May 15 date of the reopening letter employees earlier in May 18 See Resp. Exh 2 20 Third vote by Boldt's count 19 This vote is referred to by other witnesses and the undersigned as the 912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and his testimony concerning Owens is essentially unde- nied. On the basis of Boldt's testimony, I find that Owens is a supervisor within the meaning of the Act. Anthony L. Ramos, executive secretary-treasurer of the California State Council of Carpenters, testified that there are 15 district councils in California which are affiliated with the state council; that the locals through the various distnct councils in California are also affiliated with the state council; that distnct councils have a close relation- ship to locals in that they assist locals in negotiations and very often are parties to collective-bargaining agreements of a local union; that the so-called 41-county agreement is a master construction carpenters agreement for jobsite work; that there is a master mill cabinet agreement to which the North Coast Counties District Council is a party; that he became involved in the negotiations with the Company at the request of Cooper in an advisory capacity from the level of the state council; that in connection with the negotiations he attended a meeting at the labor temple in Santa Rosa about November 20; that there were about 26 employees of the Company present, a federal mediator, MacKenzie, and Cooper; that earlier that afternoon he had met with Lovmark, MacKenzie, Cooper, and a man whom he believed was Lovmark's attorney; that he, Ramos, at the meeting with Lovmark took the position that a settlement was long overdue inasmuch as the negotiations should have been concluded long before; that because of the amount involved it was indicated that the employees did not understand the situation and that further negotiations were necessary to arrive at a higher wage and package settlement; that Lovmark said that he thought it was fair, that it was fairly arrived at and that the men were in favor of it, suggesting that Ramos meet with the men to find out. Ramos replied that is what he intended to do and Lovmark said that it should be done as quickly as possible. Ramos agreed and a meeting with the employees was arranged for an hour later. Ramos then testified that Lovmark went back to the shop and told the men to go to the labor temple. When the men arrived, Ramos spoke to them saying that there should be a higher settlement. He compared their settlement to some in the Bay Area and told them it was their agreement to negotiate but that it was his obligation to point out to them that they were slipping substantially behind other areas and that they should negotiate further for a better settlement. Ramos continued to describe events at the meeting of employees by testifying that Cooper and MacKenzie spoke and that then Ramos proposed that the men vote whether they wished to accept the proposed settlement or to negotiate further. A secret ballot was held and the result was 23 to continue further negotiations and 3 to accept the current proposal. Respondent Counsel then offered in evidence as Respondent's Exhibit 3 a document containing 26 names of employees of the Company and in Ramos' own handwriting the following: Vote: 23 yes, 3 no. Question: To continue negotiations equalled yes. Present proposal O.K. equals no. Ramos further testified that the federal mediator signed the document, attesting to the vote. Recalled as a witness, MacKenzie testified that he signed the agreement, General Counsel's Exhibit 921 about August 28, that he submitted the wages and classifications to someone in the district council office and the agreement was prepared there, that the agreement contained language of the master agreement which inaugurated certain changes 22 in addition to the changes in wages and classifications, that he and Cooper had discussed these changes with Lovmark, that Lovmark had agreed to "pick up" the changes in the master agreement, that the terms of the master agreement were basic in all production shops, and that only the wages and job classifications differed from shop to shop. Cooper, recalled as a witness by Respondent Counsel, testified that Lovmark had been delinquent in his pay- ments to the pension trust fund, that sometime in August or September he met with Lovmark in the presence of MacKenzie and Dunbar concerning the delinquency, that during the meeting he was asked by Lovmark to sign the labor agreement, that Cooper replied "If the members of this group will O.K. the agreement in my presence, I will sign the agreement," that about 1 month later on November 2023 the employees voted 23 to 3 to reject the agreement. The actual vote was 23 to continue further negotiations and 3 to accept the agreement. Cooper denied that he had told Lovmark, "I don't like it. Personally I think you are getting screwed, but you have got a contract." Cooper, however, conceded that sometime late in the fall he told Lovmark that he had a contract. Cooper then testified as follows: Q. Did you ever sign a contract in 1970 intended for Cotati Cabinet Shop? A. No. Q. Why not? A. There were some changes in the wage structure and the men were all harping. We were getting a feedback and a lot of problems. I didn't, I could not sign it until we called the men together, the group, and see what actually the decision was. I got pressure from Mr. Lovmark to sign it, but I never accepted it as the time we were there with Mr. MacKenzie and Mr. Lovmark and LeRoy Dunbar. Maybe there was another fellow there, I don't know but that is the only time I met in regards to that and at that time it was the delinquency that was mentioned to me. Subsequently, in response to a question posed by the undersigned as to why he did not sign the agreement, Cooper testified as follows: The Witness: Every day we kept getting feedbacks of pressure trying to force me to do something that the members didn't want and I wanted to talk to those members and because they would tell various different stories. Unless I could sit down and get their reaction, I didn't know what was actually the truth and I had to have that. 21 The body of this agreement is identical to Resp. Exh 9 . wording of the pension trust 22 Particularly setting on industry fund and changes in the rates and 23 Resp Exh. 3 shows that the date was November 20. NORTH COAST COUNTIES DIST. COUNCIL OF CARPENTERS 913 Trial Examiner: Then on November 20th you got their reaction? The Witness: Somewhere along in there. Trial Examiner: What happened after that? What happened with regard to an agreement? The Witness: I believe I notified Lovmark that we was willing and able to sit down and continue to negotiate in good faith. Trial Examiner: Did you do that in writing? The Witness: Yes, I did. Trial Examiner: Do you have that letter with you? The Witness: I think there is a copy in that [indicating] file. Mr. Weinberg: I'm sorry, I didn't hear that. Trial Examiner: He says there is a letter to Lovmark after November 20th. Go down and pick it out, Mr. Cooper. Read the letter. The Witness: This is to Mr. David Comb, general manager, Redwood Employers Association, P. O. Box 1860, Santa Rosa. Trial Examiner: Do you want to introduce this? Mr. Weinberg: I think we should identify it for the record. Trial Examiner: Will you introduce it as your exhibit? Mr. Koslow: May I have an opportunity to look at it? Trial Examiner: Surely. D. Analysis and Conclusions There was further testimony by several witnesses called by both the General Counsel and Respondents which I have not summarized as I believe this additional testimony would contribute little to the ultimate decision. To prevail, the General Counsel is required to establish the basic premise by credible evidence that the parties had arrived at an understanding concerning all the terms of a new agreement. To support such a finding, the General Counsel contends as follows: 1. General Counsel's contention no. I The only demands made on Lovmark concern (a) a pay raise, (b) a change in health and welfare benefits, and (c) the restructuring of job classifications and corresponding wage scales. With respect to this argument, Respondents assert that the Company like other cabinet shops in the area was a party to a standard agreement although with different wage scales and different job classifications. Testimony was offered that changes had been negotiated in the standard agreement for the forthcoming term which Respondents expected to be applicable to the Company on completion of the agreement as to the wage scales and job classifications. If the decision in this case were to hinge on this issue, I would, with much reservation, decide in favor of the General Counsel on the ground that Respondents were 24 There is some evidence that there was a prior informal voice vote which also rejected Lovmark's proposal I do not include this vote in my enumeration of the votes taken 15 The evidence shows and the parties understood that ratification by the under an obligation to put the Company on notice that changes in other terms of the standard agreement were under negotiation and would be submitted to Lovmark when completed. This Respondents failed to do and their reliance on the fact that the Company in the past had adopted the standard cabinet shop agreement is misplaced. 2. General Counsel's contention 2 The General Counsel, as Respondents correctly point out in their brief, went to great lengths to establish a pattern of ratification of previous agreements between the Company and Respondents. The customary and estab- lished procedure consisted of negotiations between the Respondent local's union representative and Lovmark, ratification by the employees, signature by the local's umon representative, Lovmark's signature, and finally "verification" by signature of the executive secretary of the Respondent Council. The General Counsel correctly points out that the employees in the unit, sometime in May, voted twice on whether a counterproposal offered by the Company should be accepted and that the first vote resulted in rejection of the proposal while the second vote resulted in approval. The General Counsel insists that the approval by the employees' second vote constituted a valid ratification which was in accordance with the past practice and customary procedure; that thereupon MacKenzie, the local umon representative, was obligated to sign the agreement; and that Cooper, the executive secretary of Respondent Council, was likewise required to sign the agreement. All parties agree that the employees rejected Lovmark's counterproposal the first time they were asked to vote on the question.24 The controversy centers on the validity of the employees' second vote taken about 1 week after the first and which favored acceptance of Lovmark's counter- proposal by a close margin. There is no disagreement with regard to the testimony that 5 or 6 employees in the appropriate unit, because they were not members of the Union, were denied the right to participate in the balloting in the second vote. The closeness of the vote clearly demonstrated that the excluded employees would have exercised a controlling and crucial influence in the result. As it is fundamental that a labor organization is the collective-bargaining representative of all the employees in the appropriate unit, it likewise follows that employees in appropriate units cannot be disqualified from participating in a vote which is essential25 to acceptance or rejection of the terms of an agreement which will govern the conditions of their employment. Accordingly, I find that the second vote was invalid in that it excluded 5 or 6 employees of the appropriate unit from casting their ballots because* they were not members of the Union at the time. Under the foregoing circumstances, a prime element for conclusion of an agreement between the parties is lacking, namely, acceptance of the terms of the agreement by the unit employees. Thereafter, I find that Cooper justifiably withheld his signature and refused to "verify" the contract employees was necessary This is not a case where the employer insists on ratification by employees as a precondition to an agreement. Cf. Darlington Veneer Co, 113 NLRB 110 enfd 236 F.2d 85 (C A) 914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD because, as he testified, he was receiving "feedbacks" and contradictory stones., Events came to a head, however, on November 20 when Ramos met with Lovmark and Comb. I credit Ramos in his testimony that Lovmark proposed a prompt meeting with the employees for a final determination of their desires and that Lovmark, upon Ramos' agreement, sent his employees from the shop to the union hall. At the union hall, as described in Ramos' credited testimony, the employees, after being addressed by Ramos, MacKenzie, and Cooper, voted to authorize further contract negotia- tions.26 On the basis of this evidence, I find that the parties agreed that this final vote would be determinative of the employees' desires and to abide by the result. In his brief, the General Counsel has attempted to minimize the final vote of the employees on November 2027 by referring to Ramos' talk to the employees and stating ". . . Not surprisingly after Ramos' remarks to them, the employees voted overwhelmingly to renegotiate the agreement." I perceive a distinct inconsistency in this assertion when at the same time the General Counsel insists on the validity of the employees' second vote28 despite Lovmark's talk to his employees prior to the vote when in effect he told them that he could guarantee them work for 3 years if they approved the counteroffer. In addition, the evidence shows that Foremen Dunbar and Owens made similar statements. As I have found above that the second vote was invalid for other reasons, I consider it unnecessary to make a specific finding whether Lovmark's, Dunbar's and Owens' statements coercively influenced the employees' vote of approval of Lovmark's counteroffer. In conclusion, I find that the General Counsel has failed to prove by a preponderance of the credible evidence that the parties arrived at any agreement which obligated the Respondents or either of them to execute it. Accordingly, I find that Respondents have not violated Section 8 (b)(3) of the Act and I shall recommend that the complaint be dismissed in its entirety. Upon the basis of the foregoing findings of fact, and upon the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. Cotati Cabinet Shop, Inc., d/b/a Cotati Cabinet Manufacturing Corp. is an employer engaged in commerce within the meaning of Section 2 (6) and (7) of, the Act. 2. At all times material herein, Respondents jointly have been the exclusive collective -bargaining representa- tive of all the employees of the Company's facility at Rohnert Park, California, excluding office clerical employ- ees, guards, and supervisors as defined in the Act. 3. The employee unit described in paragraph 2 above constitutes a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At no time material herein, including May 21, 1970, have Respondents and the Company reached complete agreement on the terms of a collective-bargaining agree- ment covering the employees in the unit described in paragraph 2, above. 5. Respondents have not violated Section 8(b)(3) of the Act by refusing to execute an agreement proferred by the Company or any other agreement. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record in this proceed- ing, I recommend that the National Labor Relations Board enter an order dismissing the complaint herein. 26 Resp Exh 3 27 At which time they voted overwhelmingly to negotiate further 28 The vote at which nonmembers of the Union were excluded