Pacific Redwood Casket Co., Inc.

PACIFIC REDWOOD CASKET CO. Pacific Redwood Casket Co., Inc. and Millmen and Industrial Carpenters Local No. 262, United Broth- erhood of Carpenters and Joiners of America, AFL-CIO. Case 20-CA-9258 April 29, 1975 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On December 31, 1974, Administrative Law Judge Maurice M. Miller issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclu- sions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, Pacific Redwood Casket Co., Inc., Santa Clara, California, its officers, agents, successors, and assigns, shall take the action set forth in the said recom- mended Order. DECISION STATEMENT OF THE CASE MAURICE M. MILLER, Administrative Law Judge: Upon a charge filed June 5, 1974, and duly served, the General Coun- sel of the National Labor Relations Board caused a complaint and notice of hearing to be issued and served on Pacific Redwood Casket Company,. Inc., designated as Respondent within this decision. The Complaint issued July 24, 1974, therein, Respondent was charged with unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (5) of the National Labor Relations Act, as amended. 61 Stat. 136, 73 Stat. 519. On July 30, 1974, Complainant Union filed a first amended charge; that charge, however, merely con- firmed the charge previously filed with General Counsel's complaint as drafted, issued and served. Within Respondent's answer, duly filed thereafter, certain factual statements in General Counsel's complaint were conceded; Respondent, however, denied the commission of any unfair labor practice. Pursuant to notice, a hearing with respect to this matter was held at San Jose, California, on August 27 before me. The 585 General Counsel, Respondent, and Complainant Union were represented by counsel. Each party was'afforded a full oppor- tunity to be heard, to examine and cross-examine witnesses, and to introduce evidence with respect to pertinent matters. Following the hearing's close, General Counsel's representa- tive and Respondent's counsel presented oral argument; their arguments were duly considered. Directly thereafter, pursuant to certain consensual agree- ments previously reached with General Counsel's representa- tive, Respondent's counsel, and Complainant Union's busi- ness representative, I rendered a decision, delivered from the bench, which the official reporter recorded, and transcribed subsequently. That decision-delivered to the parties in writ- ten form, thereafter, when they received their copies of the record transcript-compassed statements with respect to my findings of fact, conclusions, and the reasons or basis therefor upon all material issues of fact, law, or discretion presented on the record. On September 11, I issued a separate document setting forth my formal Conclusions of Law and recom- mended Order, which detailed my recommendations with respect to the case's disposition. That document compassed, inter alia, statements regarding the "appropriate rule, order, sanction [or] relief' required to effectuate the policies of the statute, with which Respondent herein would be required to comply. See Administrative Procedure Act, 5 U.S.C. § 557(b) and (c), National Labor Relations Act, Section 10(c); and NLRB Rules and Regulations, Series 8, as amended, Section 102.45, in this connection. On December 10, however, the Board determined that-by delivering my decision from the bench, for later transcription as part of the written record-I had not "satisfactorily" complied with the require- ments of Section 10(c) of the statute, as amended, and Section 102.45 of the Board's Rules and Regulations with regard to the preparation of a written decision. This matter was, there- fore, remanded for the preparation and promulgation of a subsequently drafted, postheanng, decision. That decision follows. FINDINGS OF FACT Upon the entire testimonial record, documentary evidence received, and my observation of the witnesses, I make the following findings of fact: I JURISDICTION ' Respondent raises no question herein with respect to Gen- eral Counsel's jurisdictional claim. Upon the complaint's relevant factual allegations-specifically, those detailed within the second paragraph thereof-which have not been controverted, and on which I rely, I find that Respondent was, throughout the period with which this case is concerned, and remains, an employer within the meaning of Section 2(2) of the Act, engaged in commerce and business activities which affect commerce within the meaning of Section 2(6) and (7) of the statute. Further, with due regard for presently applicable jurisdictional standards, I find assertion of the Board's jurisdiction in this case warranted and necessary to effectuate statutory objectives. 217 NLRB No. 105 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II COMPLAINANT UNION Millmen and. Industrial Carpenters Local No. 262, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, designated as Complainant Union herein, is a labor organization within the meaning of Section 2(5) of the Act, as amended, which admits certain of Respondent's em- ployees to membership. III THE UNFAIR LABOR PRACTICE A. Issue This case presents a single, clear-cut question: Whether, during their April 15, 1974 contract negotiations, Complain- ant Union's spokesmen and Respondent's representatives reached a final "meeting of the minds" regarding the terms of a collective-bargaining contract, which Respondent's rep- resentatives subsequently refused to confirm by signing a document which embodies those terms. General Counsel seeks a determination that a complete consensus-which Re- spondent was bound, thereafter, to confirm-was reached. Respondent's counsel, however, contends: First, that the firm's negotiators-though they participated, fully, during the April 15 discussions noted-lacked authority to commit Respondent by their signature, with respect to any document purporting to embody whatever agreement those discussions had produced; Second, and more importantly, that whatever ostensible consensus the negotiators for the parties may have reached, during their April 15 discussions, was reached merely because Respondent's representatives believed -vio- lence might result, directed against Respondent's plant or the homes of Respondent's management representatives, should no complete agreement be achieved. In short, Respondent contends that the contractual consensus which the parties ostensibly reached, during their April 15 discussions, was a consensus reached under duress-which did not reflect a true, uncoerced, meeting of the minds-and that, therefore, this Board should find there was, really, no agreement reached on that date. B. Facts 1. Background a. Respondent's business Respondent, throughout the calendar year 1974 period with which this case is concerned, functioned-as a California corporation, with its principal place of business located in Santa Clara, California, where it engaged in casket manufac- ture. The firm had been incorporated, sometime during Feb- ruary or March 1972, 2 years previously. (Prior thereto-throughout a period which began during 1967, at least, and , ran until the firm's stated incorporation date-it had functioned as a sole-proprietorship, with Mr. Dale-Rey- nolds as proprietor.) Following the firm's formal incorpora- tion, Reynolds became Respondent's president and general manager. Mr. Ronald Jaech functioned as the firm's secre- tary-treasurer and operations manager. Mr. Robert B. John- ston became chairman of Respondent's board of directors. (Chairman Johnston was, concurrently, president and gen- eral manager of San Fernando Casket Company, a Southern California firm; he was, likewise, chairman of that firm's board of directors. San Fernando Casket Company, through- out the period with which we are concerned, held one hun- dred percent of Respondent's capital stock.) Messrs. Rey- nolds and Jaech functioned as Respondent's responsible, on-the-spot, managerial heads; Mr. Johnston maintained his business headquarters in Southern California, where San Fer- nando Casket Company's plant facility was located. b. Respondent's collective-bargaining history Complainant Union's first collective-bargaining contract with Respondent's noncorporate predecessor was negotiated some ,time during 1967, for a 2-year term. Successive con- tracts were negotiated, thereafter, during 1969, 1970, and 1971; the last-designated contract, negotiated with a January 31 effective date, covered a 3-year term, with a January 31, 1974 termination date. Both of Complainant Union's most recent contracts-covering the 1970-71 and 1971-74 peri- ods, respectively-were negotiated and signed by Reynolds, then a sole proprietor, with a labor relations consultant's help. 2. Complainant union's recent negotiations a. Preliminary statement We are concerned, herein, with certain 1974 negotiations, during which Complainant Union's representatives and Re- spondent's Santa Clara managerial heads were discussing proposed modifications with respect to their 1971-74 con- tract, recently terminated. With respect thereto, certain preliminary factual determinations may be made. Inter alia, Respondent has conceded that General Counsel's complaint herein-more particularly paragraph 6 thereof-properly de- fines the bargaining unit which should be considered appro- priate for contractual purposes. The complaint defines that bargaining unit as follows: All production and maintenance employees, including ship- ping and receiving employees of the Employer, at its Santa Clara, California, location, excluding office clerical em- ployees, salesmen, guards, and supervisors, as defined in the Act. I find the bargaining unit, thus defined, proper for present purposes. Respondent further concedes, and I find, that-throughout the period with which we are presently concerned-the Complainant Union has represented a majority of Respondent's employees within the specific unit herein found proper for collective-bargaining purposes. b. The negotiations Complainant Union's current business representative, Gordon F. Franco, together with a three-member plant com- mittee, has held a series of collective -bargaining sessions with Respondent's representatives, looking toward their contract's modification and renewal . These negotiating sessions began in February 1974; before April 15, five sessions had been concluded. (Messrs. Reynolds and Jaech, together with Mr. E. H Gummerson, and Chet Keil, labor relations consult- PACIFIC REDWOOD CASKET CO. 587 ants, had functioned as Respondent's representatives.) The parties' first negotiating session was held on February 11, 1974; successive sessions were held, thereafter, on February 21, on some date early in March, March 29 and April 2, respectively. Thereafter, a sixth session was convened on April 15 with a Federal conciliator present; the discussions which took place during that session will be reviewed in detail further within this decision. Business Representative Franco's testimony herein, pro- vides a detailed recapitulation with regard to contractual discussions which took place during these various bargaining sessions, beginning with February 11 and running through the parties' April 2 conference. However, that testimony, within my view, requires no summarization within this deci- sion. (Franco's proffered recollections, regarding the general course of these negotiations, have not been significantly chal- lenged, controverted, or qualified by Respondent' s manage- ment representatives.) With due regard for the business repre- sentative's testimonial recitals-plus certain stipulations-I find determinations warranted: That Complainant Union's negotiators were notified with respect to Respondent's incor- poration; that several substantive agreements were reached with respect to certain proposed contractual modifications; that the parties, further, either "agreed" or shared a tacit consensus whereby certain contractual provisions, with re- spect to which no changes were being proposed, would be "carried over" without change from their 1971-74 contract, within any new contract which they might ultimately negoti- ate; and that, with respect to certain other proposed contrac- tua 1 modifications regarding which no consensus had thereto- fore been reached, Respondent's negotiators presented a so-called "final offer" during the parties' April 2 conference, which Business Representative Franco promised to present before Complainant Union's membership, for their consider- ation. On April 3, Franco visited Respondent's Santa Clara facility and met there with Respondent's workers; the firm's proposals were detailed, with respect to those matters which had not previously been settled. Complainant Union's busi- ness representative told Respondent's workers, inter alia, that-should Respondent's several proposals be rejected-they would "very possibly" find themselves re- quired to strike, for the purpose of persuading Respondent to proffer better contract terms. A secret ballot vote was taken; Respondent's contractual proposals were, unanimously, re- jected. Accordingly, Respondent's representatives were told, shortly thereafter, that their "final offer" had been turned down, and that Respondent's Santa Clara facility was being struck, effective that very morning., (Complainant Union's declared strike did, indeed, take place; it continued through Tuesday, April 16 , terminating the following day, when Respondent's employees resumed work, under circumstances which will be considered, further, within this decision.) On or about April 13 or 14, so the record shows, someone-possibly Business Representative Franco, or possibly Respondent's labor relations consultant-suggested that renewed negotiations between Complainant Union's representatives and Respondent's spokesmen, with a Federal conciliator's help, might be worth- while. (I note that April 13 was a Saturday; April 14, 1974 was a Sunday. Most probably, renewed negotiations were first suggested on some other day, probably a weekday; the suggestion's precise date, however, need not be determined.) Pursuant to this suggestion, Franco communicated with Fed- eral Conciliator Griffin; Complainant Union's negotiators and Respondent's representatives were, thereafter, requested to renew their negotiations on Monday, April 15, within the Mountain View, California, office maintained by Beard, Gummerson and Keil, Respondent's labor relations consult- ants. The parties convened, pursuant to request. Consistently with a practice which Federal conciliators seem to follow routinely, when confronted with situations of this kind, Complainant Union's negotiators, Business Repre- sentative Franco and his plant committeemen, were quar- tered in one room, while Respondent's negotiators-spe- cifically, Reynolds and Jaech, together with their two labor relations consultants-remained within another. The Federal conciliator constituted himself a conduit for communi- cations, then, between the two negotiating groups; he shuttled between their two rooms, and recapitulated, for each group of negotiators, whatever suggestions or pro- posals their opposite numbers proffered. When Conciliator Griffin conferred initially with Com- plainant Union's spokesmen, pursuant to this procedure, he was provided with a capsule summary of their viewpoint with respect to those matters which had not, previously, been settled. However, Franco's composite testimony, in direct and cross-examination, regarding their further con- versation-which I credit, since it comports with logical probability, and stands in the record without contradiction -reads as follows: He [Griffin] then informed us that the company now had a demand [which] was that it was to be an open shop [.] And I recall saying to him that we had come there in the hopes of winding the strike down [,] and not increas- ing or widening the gap [,] and that this . . . would certainly upset the troops [the rank and file]. That we were trying to conclude the negotiations and not broaden [their] base. The firm's new "open shop" proposal, concededly, reflected a departure from Respondent's previous contractual propos- als. Following a further discussion, with regard to Complain- ant Union's several reasons for rejecting Respondent's most recent substantive proposals, Griffin declared that he would communicate further with Respondent's representatives. Respondent's new "open shop" proposal, so I find, had been developed during a three-way discussion between Chair- man of the Board Johnston, President Reynolds, and Secre- tary-Treasurer Jaech, shortly after Complainant Union's strike began. Respondent's management representatives had, during that discussion, consensually determined-that because of their firm's somewhat straitened financial situation and less-than-favorable competitive position, contractual changes calculated to permit "open shop" plant operations would permit them to exercise managerial flexibility, which would enable Respondent to meet competitive challenges and relieve what might otherwise become a serious financial emergency. The proposed contractual change, whatever its motivation may have been had, therefore, been communicated to Con- ciliator Griffin, for transmittal to Complainant Union's negotiators. The Federal mediator, so the record shows, had 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD passed on Respondent's proposal; Complainant Union's negative reaction has previously herein been noted. With respect to what happened thereafter, Reynolds and J-aech both testified. Their proffered recollections, regarding the report which Conciliator Griffin conveyed to them, differ somewhat in phraseology; for present purposes, however, their testimonial recitals may be considered mutually cor- roborative. Respondent's secretary-treasurer testified as fol- lows: Mr. Griffin told us that Mr. Franco was not at all happy with the open shop proposal. We were told that the committee would not be happy with this and he might have some trouble with his men. He did not know what. Or, at least, this was what was conveyed to us . . . Mr. Griffin stated to Mr. Reynolds and myself, that there might be a possibility of violence. At that time, I believe, Mr. Reynolds . . . stated that that was fine. They could tear the building down. Mr. Griffin then came back to state, well, it may not be just the Company itself, but maybe one of our homes. Reynolds, Respondent's president, proffered a substantially similar, but more dramatically phrased, recital. His tes- timony follows: Well, as I recall . . . I think he said, I hit Gordon [Franco] with your open shop proposal, and [he] said he didn't know if he would be able to control his troops if he went back to them with that. I think that was how the statement was made. I'm not quite sure about the words, but more or less along that line . . . I said, what do you mean, control his troops. You mean if they come over and blow the plant up, that solves the whole prob- lem, nobody has to go to work then . . . I was kind of making a joke out of it, at the time, by the way. Mr. Griffin said that, remember, this doesn't necessarily have to confine itself to the plant. Conciliator Griffin then suggested that Respondent's negotia- tors should "get together" with whomever they might have to call in Southern California, and discuss "what [they could] do" to "drop this [open shop] clause" and reach some sort of peaceful settlement. Pursuant to this suggestion, Jaech promptly telephoned Respondent's board chairman. Johnston was told, according to Jaech's sketchy testimony, what Conciliator Griffin had conveyed. While a witness, herein, Johnston's recollection was somewhat more specific. He testified that: The message conveyed to me was that there was a possi- bility of violence-through the mediator, the federal mediator-if we did not come to some type of an agree- ment. I said that under no circumstances did I want any violence or the possibility of putting my people in any personal jeopardy . . . Possible fire bombing of their homes . . . I told [Mr. Jaech] to get with the federal mediator and try to make some type of an agreement Conciliator Griffin had, meanwhile, told Complainant Union's negotiators that Respondent's spokesmen were tele- phoning,Los Angeles, to discuss their "open shop" proposal with "some [never named] individual" there. When Jaech reported that Respondent's new "open shop" proposal would be dropped-while requesting the federal mediator to pursue negotiations further-the latter promptly reported Respon- dent's reversal of position to Complainant Union's commit- tee. Discussions between the parties, with respect to various substantive contractual proposals, were thereupon resumed. During a conference which Griffin called-with Complain- ant Union's negotiators and both of Respondent's labor relations consultants present-they finally reached a contrac- tual consensus. (For present purposes, the various contrac- tual provisions which were thereby settled need not be recapitulated. Suffice it to say that give-and-take negotiations with respect to five designated matters regarding which no prior agreement had been reached-pension plan improve- ments, Complainant Union's proposed dental care plan, par- tial retroactivity for newly negotiated wage rates, deferred effective dates for future raises payable during the contract's projected three year term, and defined wage increments by which Respondent would advance newly hired workers from their starting rates every 3 months until they reached contrac- tual scale rates-were satisfactorily concluded.) The negotiators-more particularly, Conciliator Griffin and Complainant Union's committee, together with Messrs. Gummerson and Keil, Respondent's labor relations consultants-then reviewed their "whole package" covering those matters with respect to which consensus had previously been reached, together with their newly negotiated contrac- tual provisions. Complainant Union's committeemen de- clared their complete "agreement" with Respondent's negotiators, and promised that the product of their discus- sions would be recommended for ratification by Complainant Union's membership. In this connection, Business Represen- tative Franco testified, credibly and without contradiction, that: I did inform Mr. Gummerson that I would call him later that evening to let him know the results of the meeting and he turned to me and said, okay, we have 'a deal. And, I said, yes, subject to ratification, the committee will recommend, then each of the committee members did verbally say that they would recommend it . . . I did say to Gummerson that I would call him in respect to what the outcome was, and that I would draft up the changes if they were accepted and present [them] to him and to the Company for their review to see that I had incor- porated all the changes. And he said, all right. Before their April 15 bargaining session concluded, the parties-so I find-reached a further consensual "under- standing" with respect to when Respondent's employees would resume work. The present record reflects some slightly variant recollections with respect to precisely how that "un- derstanding" was reached. Business Representative Franco recalled a query directed to Labor Relations Consultant Gummerson, which the latter relayed to Respondent's secre- tary-treasurer; Jaech, so Franco testified, suggested Wednes- day, April 17 for their work resumption. However, Complain- ant Union's committeeman, Henry Perry, recalled that President Reynolds had set April 17, during a general conversation-with all parties present-which followed their PACIFIC REDWOOD CASKET CO 589 contract settlement. Whatever the circumstances, Respon- dent's employees were, clearly, directed to resume work April 17; with this matter settled, the meeting concluded. That night, I find, Franco telephoned Gummerson; he reported the contract's ratification; it had, in fact, been ratified by secret balllot. The labor relations consultant declared his satisfac- tion, and promised to notify Respondent's president. On April 17, pursuant to their prearrangement, Respon- dent's workers-save for two-did, in fact, resume work. The record warrants a determination, which I make, that their hourly wage rates, thereafter, were higher than those which had prevailed before their strike; these new rates, so I find, were consistent with the parties' April 15 consensual commit- ments. Sometime shortly after April 16, and possibly within 2 days thereafter, so Franco credibly testified, he prepared a draft collective-bargaining agreement which reflected the contrac- tual consensus reached by Respondent' s managerial represen- tatives and Complainant Union's spokesmen, during their April 15 discussions. (Franco's testimonial recollections, which I credit, reveal that he did this by taking a copy of Complainant Union's recently terminated contract with Re- spondent herein, pasting into that document typewritten ver- sions of various revised contractual provisions with respect to which consensus had been reached during their six bargain- ing sessions, and making photocopies of the document thus modified.) Draft contract copies, thus prepared, were then mailed to Labor Relations Consultant Gummerson and Re- spondent's place of business. Some days later, I find, Franco telephoned Gummerson; regarding their conversation, Com- plainant Union's business representative testified: I asked Mr. Gummerson if he had a chance to review the contract I had mailed to him and he said, yes, that he had found nothing wrong with it, that it had truly represented all the changes that had taken place in the negotiations. Within a few days thereafter, Franco visted Respondent's plant; there he conferred with President Reynolds and Re- spondent's secretary-treasurer. They reported that Labor Re- latnons Consultant Keil had reviewed Complainant Union's draft contract with them. The business representative testi- fied, credibly and without significant contradiction, that: Mr. Reynolds stated that he had found nothing wrong with the agreement. I then asked him to sign the agree- ment and they informed me that they would have to send it to Los Angeles. I asked them, what goes on? You previously signed the-agreements in the past and how come now you say you have to send it to Los Angeles? And they said, Well, we are instructed to send it to Los Angeles and this is what we will have to do. At this point, I addressed Mr. Reynolds and Mr. Jaech, and said to them, Well, if you can't sign it, how about initialing it. Will you initial the changes? . . . [Mr. Reynolds] turned to Ron [Jaech] and said, since you are sitting down, Ron, why don't you do it? Ron indicated that he would, and we sat there and Ron and I . . . went over each section individually to be sure that the proper lan- gua had been incorporated into the agreement. After the initials were placed on all the sections by Mr. Jaech, he said he would put it-in the mail to Los Angeles that day and that within a couple of days, we would probably have it back. Complainant Union's business representative testified, credi- bly, that during this conversation neither Reynolds nor Jaech mentioned "who they had' to send [the draft contract] to" down in Los Angeles. Franco's testimony, further, warrants a determination, which I make, that they did not mention the purpose for which the document would be forwarded there; Respondent's secretary-treasurer merely said that some "fel- low" in Los Angeles wanted to "see" what had been nego- tiated. While a witness, Respondent's secretary-treasurer purport- edly recalled making statements that Respondent's board chairman was a Southern Californian; that they had been "in touch" with him, throughout the negotiations by telephone; and that "all such documents had to be approved" by him. This testimony, however, was not proffered when Jaech first recapitulated the plant conversation with which we are pres- ently concerned; it was given subsequently, when prompted by leading questions While testifying in this connection, Ja- ech's witness-chair demeanor further suggested some hesita- tion; within my view, it reflected lack of certainty or convic- tion. His testimonial recital, with respect to what Franco was told, thus lacks persuasive thurst. Upon this note, Franco's plant conference with Respondent's management representa- tives terminated. During the 4 weeks which followed, so I find, Complainant Union's business representative heard nothing further. On or about May 31 thereafter, Franco again visited Re- spondent's plant. Secretary-Treasurer Jaech was asked, so I find, whether their draft contract had been returned from Los Angeles; he replied negatively, declaring that he would check to see what had happened. During his plant visit, so Complainant Union's business representative credibly testified, he noted that Respondent's stock of casket materials was relatively low. Respondent's secretary-treasurer, responding to his query with respect to this situation, declared that their recently concluded strike had hurt Respondent financially; the firm, Jaech reported, was then shipping finished caskets, so that it could thereby garner sufficient funds to make further raw material pur- chases. Franco considered this explanation believable; and he thereupon left Respondent's plant. Later that day, however, Complainant Union's shop stew- ard telephoned the business representative; he reported that Reynolds and Jaech had told Respondent's workers their plant was being closed, and that they (the workers) should look for other jobs. Complainant Union's business represen- tative promptly telephoned Respondent's facility. Jaech con- firmed Shop Steward Perry's report that the plant was being closed, contending that he had that very day received tele- phone "instructions" from Los Angeles, with respect thereto, following Franco's earlier plant visit. During their conversa- tion, Complainant Union's business representative , so I find, queried Respondent's secretary-treasurer, once more, regard- ing "this [Los Angeles] character" but was told that Respon- dent's local management representatives were "not at liberty" to provide his name. Complainant Union's charge, herein, was filed some 5 days later. 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 'The, record, though not fully developed in this regard, warrants a determination, which I make, that Respondent's plant has, indeed, been closed. When this case was heard, no production activity whatsoever, was being carried on there. Respondent's workers, seemingly, have all been terminated. The record suggests, further, that Respondents physical assets-save for the firm's plant facility which was rented-may have been transferred, or that they are currently in the process of being transferred, to some purchaser. No determinations can be considered warranted, however, with respect to whether or not the plant will be reopened within the foreseeable future for casket production. C. Conclusions Upon this record, determinations seem clearly warranted that, Complainant Union's negotiators and Respondent's spokesmen, during their negotiations between February 11th and April 15th specifically, reached a complete contractual consensus with respect to all matters which they had dis- cussed; that Complainant Union 's business representative, thereafter, prepared a draft contract which correctly reflected their consensus; that Respondent's secretary-treasurer subse- quently signified his concurrence therewith when he "ini- tialed" the various textual changes, from their prior contract, which had been compassed therein; -but that Complainant Union's contractual' draft document, submitted for Respon- dent's execution, has not been, thus far, signed byany prop- erly authorized management representative . I so find. Respondent contends, now, that Secretary-Treasurer Jaech and Respondent's president, though they participated fully, throughout the collective-bargaining negotiations reviewed herein, had never been "authorized" properly to commit Re- spondent, by their signatures, with respect to any document which purported to reflect a contractual consensus reached therein. This contention, within my view, merits rejection for several reasons. First: The record, considered in totality, war- rants a determination, which I make, that, despite Respon- dent's change in legal status from a sole proprietorship to a corporation, formalized during the parties' prior contract term, the Complainant Union's negotiators were never told, while negotiations were in progress, that Respondent's change in legal status had, in any way, limited the presump- tive authority which President Reynolds and Respondent's secretary-treasurer possessed to commit their firm, with re- spect to whatever collective-bargaining consensus those negotiations might produce. Second: The testimonial record shows, rather, that when the parties reached their April 15 contractual consensus, the fact that President Reynolds and Secretary-Treasurer Jaech were not, then, qualified to con- firm their verbal commitments was not even known to them; they had never been advised previously regarding Board Chairman Johnston's intention to limit their corporate au- thority, in that regard, and were not told until some time after their verbal "assent" with respect to a complete contractual settlement was communicated to Complainant Union's negotiators. President Reynolds so testified; while a witness, he recalled that: Well, I went through the collective- bargaining sessions with the idea in mind that I did have authority to bind the company to a collective-bargaining agreement. On about the 16th or 17th of [April], contact with Mr. Johnston, he advised me at that time to let him, he wanted to be sure to go over this agreement before the Company agreed to it . . . I think that was about the time we called him to tell him that we would be going back to work. I conclude, therefore, that when Respondent's president and secretary-treasurer confirmed, both directly and through their labor relations consultants, that a contractual consensus had been reached, the Complainant Union's negotiators were fully entitled to consider such cumulative communications binding with respect to Respondent's commitment. Accord- ingly, I find that Respondent's management representatives, when their considered verbal "assent" with respect thereto was communicated, bound Respondent to confirm their April 15th consensus, and to sign whatever documents set forth its terms. Respondent's further contention, that whatever purported agreements the negotiators may have reached reflected a con- sensus reached under duress which did not derive from any true, uncoerced, meeting of their minds, likewise carries no persuasion. First: The record provides no reliable, probative, or substantial, support, whatsoever, for a factual determina- tion that Complainant Union's business representative ever proffered threats of violence. Franco's testimony, which pro- vides the sole direct record we have with respect to his reac- tion when confronted with Respondent's newly proffered "open shop" contract proposal, reveals his declaration, merely, that Respondent's proposal would "certainly upset" his bargaining constituency. That comment, within my view, conveys no "threat" with respect to prospective violence. Second: The testimonial recollections of President Reynolds and Respondent's secretary-treasurer taken at face value, might conceivably warrant a determination that Griffin, the Federal mediator, when he reported Franco's comment, did mention possible violence. I note, however, that neither Rey- nolds nor Jaech claimed, when they recapitulated Griffin's report, that he had attributed those comments regarding pos- sible violence directly to Complainant Union's business rep- resentative. The mediator's reported comments, were I to conclude, arguendo, that they were really made-consistently with the testimony of Respondent's management representa- tives, reflect nothing more than his (Griffin's) speculative extrapolations, bottomed on whatever specific remarks Franco had previously made. Should I, therefore, conclude from their testimony that Respondent's representatives really believed Franco had threatened possible violence, I would, nevertheless, be constrained to conclude further that their belief derived from their misconstruction of Griffin's report. Third: Respondent's management representatives - testified that Conciliator Griffin's comments, with regard to possible violence, were proffered in conjunction with his report of Business Representative Franco's reaction to Respondent's belated "open shop" proposal, merely. Nothing whatever can be found, within the present record, calculated to support persuasively Respondent's contention that Griffin reported the possibility of violence shouid the parties, then and there, fail to reach a consensus generally, with respect to contract terms. PACIFIC REDWOOD CASKET CO. 591 While a witness, Respondent's board chairman did testify, that he was told violence was possible should his negotiators fail to conclude "some type of an agreement" generally. Secretary=Treasurer Jaech, however, testified, summarily, that Johnston was merely told "what ,was conveyed" when the federal mediator reported : the record warrants a determi- nation, which I have made, that Conciliator Griffin had con- veyed nothing more than Complainant Union 's strongly negative reaction to Respondent's newly proffered "open shop" proposal . If Respondent's management representatives really derived such a broadly framed "impression" from Con- ciliator Griffin's comments, their impression clearly rested upon a mistake of fact with respect to what he said , for which Complainant Union cannot reasonably be held responsible. I conclude, therefore, that Respondent's claim of duress, suffi- cient to deprive the firm's negotiators of their freedom of will and preclude a true "meeting of minds," thereby cannot be considered a tenable claim upon this record. Research thus far reveals no Board cases which deal specifically with "duress" claimed to constitute a defense, in connection with Section 8(a)(5) charges . However, the basic principles of contract law teach that proven "duress" de- stroys the true freedom of consent required when parties negotiate contracts , and can prevent the formation of binding commitments, 25 Am. Jur. 2d, Duress and Undue Influence, §§ 1-3, 10-14, pp. 353-372; 17 Am . Jur. 2d, Contracts, § 153, pp. 504-505. Further, this Board has been told-within a United States Supreme Court decision-that it may properly consider proven union misconduct material , when reaching a preliminary decision with respect to whether it should, within its discretion , entertain and- proceed upon charges. N.L.R.B. v. Indiana & Michigan Electric Company, et al 318 U.S. 9, 18-19 (1943). The Board, in short, may properly withhold or dismiss complaints when satisfied that their un- derlying charges are "so related to a course of violence and destruction" as to constitute an abuse of the Board's process. Such determinations with respect to disqualifying union misconduct, however, cannot be lightly made; they must be bottomed, like other Board findings, on reliable, probative, and substantial evidence . In this connection, the Supreme Court has commented-within Indiana & Michigan Electric Company, supra, pp. 28-29, specifically that: Charges that violence has been threatened or encouraged are frequent and easy in negotiations that proceed in an air of belligerency . Both sides regard labor relations as tough business, and not only vital interests but passions and sensitivities as to prestige are involved . Neither side is lightly to be held answerable for acts where responsibil- ity cannot be fixed. Few tasks of leadership are more difficult than those which confront those who represent labor. If they are gentle, they are often unheeded; and if they are blunt, they are often held up as menacing. [Emphasis supplied.] Mindful of this judicial caveat, I have concluded that Respon- dent's defensive presentation herein , particularly counsel's contention that Respondent's management representatives were subjected to legal duress, lacks persuasive testimonial support. Accordingly, I conclude, consistently with General Counsel's contention, that Complainant Union's negotiators and Respondent's spokesmen, during their April 15 negotia- tions, did reach a viable contractual consensus which Re- spondent's management representatives were thereafter bound to confirm. Thereafter, since their contractual consensus was reached, Complainant Union has, I find, requested Respondent's man- agement representatives to confirm their complete "agree- ment" by- signing a -contractual draft document which concededly compasses correctly their negotiated agreement's terms. No such written contract has been signed; Respon- dent's failure to sign consistently with Complainant Union's request, I find, clearly constitutes a refusal to bargain in good faith within the -meaning of the statute. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Respondent's course of conduct set forth in Section III, above, since it occurred in connection with Respondent's business operations described in General Counsel's Com- plaint, and concededly described correctly therein, has had, and continues to have, a close , intimate, and substantial rela- tion to trade, traffic, and commerce among the several states; absent correction such conduct would tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW In view of my previously stated findings of fact, and upon the entire record in this case, I make the following conclu- sions of law: 1. Pacific Redwood Casket Co., Inc., Respondent herein, is an employer within the meaning of Section 2(2) of the Act, engaged in commerce and business activities which affect commerce, within the meaning of Section 2(6) and (7) of the Act, as amended. 2. Millmen and Industrial Carpenters Local No. 262, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act as amended, which admits certain of Respondent's employees to membership. 3. All production and maintenance employees, including shipping and receiving employees of Respondent at its Santa Clara, California, location, excluding office 'clerical em- ployees, salesmen, guards, and supervisors, as defined in the Act, constitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act, as amended. 4 At all times material herein since February 11, 1974, when representatives of Respondent and Complainant Union commenced their 1974 negotiations looking toward a new collective-bargaining agreement, Complainant Union has represented a majority of Respondent's employees within the bargaining unit herein found appropriate for collective-bar- gaining purposes. By virtue of Section 9(a) of the Act, Com- plainant Union has been, and is now, entitled to recognition as the exclusive representative of Respondent's employees within the unit described, for the purpose of collective bar- gaining with respect to their rates of pay, wages, hours of work, and other terms and conditions of their employment. 5. By failing and refusing since April 15, 1974, to execute a written agreement with Complainant Union, embodying 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD provisions relative to wages, hours, and other terms and con- ditions of employment, with respect to which the parties had reached a contractual consensus, Respondent has refused, and is refusing to bargain collectively with Complainant union, and thereby has engaged in, and continues to engage in, an unfair labor practice within the meaning of Section 8(a)(5) of the Act, as amended. 6. By such failure and refusal, Respondent has likewise interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, its employees in their exercise of rights which Section 7 of the statute guarantees, and thereby has engaged in, and continues to engage in, an unfair labor practice within the meaning of Section 8(a)(1) of the Act, as amended. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act, as amended. REMEDY Since I have found that Respondent has committed, and has thus far failed to remedy a specific unfair labor practice which affects commerce, I shall recommend that it be ordered to cease and desist therefrom, and to take certain affirmative action, including the posting of appropriate notices, designed to effectuate the policies of the Act, as amended. Specifically, since I have found that Mr. Reynolds and Mr. Jaech, functioning in Respondent's behalf, have, despite a proper request, failed and refused to sign the draft document, correctly reflective of the contractual consensus reached dur- mg their April 15 bargaining session, which Complainant Union's representative has proffered for their concurrence, my recommendation will be that Respondent, functioning through some properly authorized representative, should now be required to sign, upon request, copies of the draft contract which Complainant Union's representative has sub- mitted for review and signature. Further, I shall recommend that Respondent be required to comply with those contract terms, retroactively to the effective date set forth therein, and make its employees whole for any losses which such em- ployees may have suffered by reason of Respondent's unlaw- ful refusal thus far to sign the contract in question. See Huttig Sash and Door Company, 151 NLRB 470, 475 (1965), enfd. as modified 361 F.2d 217 (C.A. 4); Ogle Protection Service, Inc., and James L. Ogle. 149 NLRB 545, 547-548 (1964) enfd. in part, 375 F.2d 497. Whatever backpay may be required to make Respondent's workmen whole for any losses which they may have suffered should bear 6-percent interest per year, from the date or dates when such sums would have been payable. See Isis Plumbing & Heating Co., 138 NLRB 716 (1962), in this connection. Upon my findings of fact previously stated, the foregoing conclusions of law, and the entire record, I hereby issue, pursuant to Section 10(c) of the Act, as amended, the follow- ing recommended: I In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. ORDER' Respondent, Pacific Redwood Casket Co., Inc., its officers, agents successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Complainant Union, on behalf of workers within the unit herein found appropriate for the purposes of such collective bargaining, by failing or refusing to sign, upon request, the draft collective- bargaining contract which Complainant Union's representa- tive prepared and submitted for signature in Respondent's behalf shortly after April 15, 1974, which draft contract em- bodied those provisions relative to wages, hours, and other terms and conditions of employment, with respect to which a contractual consensus had been reached on and before that date, or by refusing to comply with that collective-bargaining contract's terms, retroactively to its consensually agreed- upon January 31, 1974, effective date: (b) Interfering with, restraining, or coercing their em- ployees, in any like or related manner, with respect to their exercise of rights which Section 7 of the Act, as amended, guarantees. 2. Take the following affirmative action, which will effectu- ate the policies of the Act, as amended: (a) Upon Complainant Union's request, sign the draft col- lective-bargaining contract which Complainant Union's rep- resentative submitted for Respondent's execution shortly after April 15, 1974, and comply with that contract's terms, retroactively to its consensually agreed-upon January 31, 1974, effective date, making Respondent's employees whole for any losses suffered by reason of its prior failure or refusal to sign the designated contract, in the manner set forth within that portion of my previously promulgated decision wherein "remedy" matters are discussed: (b) Preserve, upon request, until compliance with the pro- visions of this order, and make available to the Board and its agents, for examination and copying, all payroll records, so- cial security records, timecards, personnel records and re- ports, and all other records relevant and necessary to reach determinations with respect to whatever backpay amounts, or further payments, may be due Respondent's employees pur- suant to this order: (c) Post at Respondent's present or former place of busi- ness in Santa Clara, California, if Respondent is presently conducting business operations there or resumes such opera- tions hereafter, copies of the attached notice marked "Appendix "Z Copies of the notice, on forms provided by the Regional Director for Region 20, as the Board's agent, shall be posted, immediately upon their receipt, after being duly signed by Respondent's representative. When posted, they shall remain posted for 60 consecutive days thereafter, 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes z In the event that the Board's 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." - PACIFIC REDWOOD CASKET CO. - 593 in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that these notices are not altered, defaced, or covered by any other material; (d) Send to each employee within the bargaining unit herein found appropriate, whose name appeared on Respon- dent's Santa Clara payroll on the designated January 31, 1974, effective date of the contract which Respondent has herein been directed to sign, or whose name has since that date appeared on Respondent's payroll, a copy of the afore- said notice. Copies of the notice, on forms provided by the Regional Director for Region 20, as the Board's agent, shall be mailed, immediately upon their receipt, after being duly signed by Respondent's representative, to the said employees, directed to their last known addresses: (e) File with the Regional Director for Region 20, as the Board's agent, within 20 days from the date of this Order, a written statement setting forth the steps which Respondent has taken to comply herewith. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing, during which all parties were given an oppor- tunity to present -evidence and argument, it has been deter- mined that we violated the law by committing certain Unfair labor practices. In order to remedy such conduct, we are being required to post this notice. We intend to comply with this requirement, and to abide by the following commitments: WE WILL NOT interfere with, restrain, or coerce our employees, through any course of conduct evidencing a refusal to bargain, with respect to their exercise of rights which Section 7 of the National Labor Relations Act, as amended, guarantees. WE WILL, upon the request of Millmen and Industrial Carpenters Local No. 262, United Brotherhood of Car- penters and Joiners of America, AFL-CIO, sign a writ- ten contract which incorporates the terms of the con- tractual consensus we reached with that labor organization's collective-bargaining representatives on April 15, 1974, with a designated January 31, 1974 re- troactive effective date. WE WILL make whole all persons who were in our em- ploy on the written contract's designated effective date, together with those who have been employed by us since that date, for any losses which they may have suffered by reason of our prior failure or refusal to execute the written contract above mentioned. PACIFIC REDWOOD CASKET CO, INC