Miami Swim Products

National Labor Relations Board - Board Decisions

Jan 30, 1964

145 N.L.R.B. 1348 (N.L.R.B. 1964)

1348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Silby-Dolcourt Chemical Industries , Inc., d/b/a Miami Swim
Products and' Lawrence I. Hollander , Its Attorney and Inter-
national Leather Goods , Plastics and Novelty Workers Union,
AFL-CIO. Case No. 10-CA-92590. January 30, 1964
DECISION AND ORDER
On August 16, 1963, Trial Examiner Sidney Sherman issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the attached Intermedi-
ate Report. Thereafter, the General Counsel filed exceptions to the
Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Leedom and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report and the entire record in this case, including the General
Counsel's exceptions and brief, and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner with the fol-
lowing modifications and additions.
The Trial Examiner found, and we agree, that both Respondent
Miami and its attorney, Respondent Hollander, failed to bargain in
good faith with the Union, in violation of Section 8(a) (5) and (1) of
the Act.
The attitude of the Respondent Miami toward its collective-
bargaining obligation is indicated by the statements of its president,
Dolcourt, soon after the Union was certified as the representative of the
Miami employees, that he "never would sign with any union," that he
had closed a plant in New York when a union came on the scene, and
that he would close down this factory also if necessary to avoid dealing
with a union. Miami did thereafter appoint Respondent Hollander
to negotiate on its behalf with the Union, but invested him only with
the limited authority to negotiate a tentative agreement. He was
instructed not to consult with Miami officers concerning specific pro-
posals during the course of negotiations, and not to submit any tenta-
tive partial agreements to Miami, but to wait until he could submit a
complete agreement for Miami's approval. Moreover, Miami did not
inform Hollander as to its operations, its economic situation, or its
bargaining objectives, even to the extent that they would have a direct
bearing on wage rates and other economic provisions to be negotiated.
145 NLRB No. 129.
MIAMI SWIM PRODUCTS, ETC. 1349
Negotiations began in August 1962, and continued sporadically
until December, when Hollander refused to meet with the Union's
negotiator, Schwartz, because the Union had filed unfair labor prac-
tice charges against Miami. We find, in agreement with the Trial
Examiner, that this refusal constituted a violation of Section 8 (a) (5)
and (1) of the Act by both Respondents.
Negotiations resumed, following a written request from Schwartz,
after a hiatus of about 3 weeks. On January 21, 1963, Hollander
agreed at Schwartz' request that he would reduce to writing the pro-
posals on which he and Schwartz had reached agreement. Approxi-
mately 1 month later, Hollander announced that lie would not submit
the written proposals, as agreed, because such action might be con-
strued as a direct offer to the Union. Finally, in April, Schwartz
submitted to Hollander his written interpretation of the agreements
which had been reached at the bargaining table. Hollander presented
this document to Miami, which rejected several of the proposals.
No exceptions were filed by either of the Respondents to the Trial
Examiner's finding that they failed to bargain in good faith with
the Union. The General Counsel has excepted, however, to the failure
of the Trial Examiner to require that Miami execute a particular
contract, which raises the issue whether the negotiators reached a
complete agreement that Miami can be, required to execute. Con-
trary to the Trial Examiner, we find, upon the entire record, that
no such complete agreement was achieved. The Trial Examiner
relied, among other things, on the fact that Hollander had passed on
to Miami the draft presented to him in April by Schwartz. It is
conceded, however, that this draft in some respects inaccurately re-
flected the agreements reached by Hollander and Schwartz. In addi-
tion, it is not clear from the record that the negotiators reached
agreement on proposals for including a liquidated damages provision
in a no-strike clause, or on an arbitration provision in the grievance
clause. Furthermore, it is clear that they had not agreed on the
terms and the wording of such clauses, even if they had agreed gen-
erally to include such provisions. There is therefore no complete
agreement which Miami can be ordered to execute.'
Nevertheless, in view of the aggravated nature of Miami's refusal
to bargain in good faith as shown by Dolcourt's remarks, the limited
authority granted to Respondent Miami's negotiator, the failure to
keep him informed as to matters essential to the bargaining process,
and the delays in reaching even tentative agreements, we are con-
vinced that the Board's usual order in such case to bargain in good
faith will not be adequate to assure Respondent Miami's compliance
with its statutory obligations. We shall, therefore, in addition to
' Watertown Undergarment Corporation , 137 NLRB 287 ; Paul Robey, an individual
d/b/a Crown Drug Company, 136 NLRB 865.
1350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
requiring that Respondent Miami bargain in good faith as recom-
mended by the Trial Examiner, also order the Respondent Miami
to vest in its bargaining representative authority to negotiate and
conclude a contract with the Union, and, if it reserves the right to
consult with him and inform him of its positions on bargaining issues
before committing itself to proposals or counterproposals made dur-
ing the course of the negotiations, to do so promptly and in such a
manner as not unduly to impede the progress and consummation of
the negotiations.
ORDER
The Board adopts as its Order the Recommended Order of the
Trial Examiner 2 with the following modifications :
Delete subparagraph (a) of paragraph 2 thereof, and substitute
the following, redesignating the subsequent subparagraphs accord-
ingly :
(a) Vest in its bargaining representative authority to nego-
tiate and conclude a contract with the Union, and, if it reserves
the right to consult with him and inform him of its positions on
bargaining issues before committing itself to proposals or coun-
terproposals made during the course of the negotiations, to do
so promptly and in such 'a manner as riot unduly to impede the
progress and consummation of the negotiations.
(b) In all other respects, upon request, bargain collectively
with the Union as the exclusive representative of employees in
the previously described unit with respect to rates of pay, wages,
hours of work, and other terms and conditions of employment,
and, if an understanding is reached, embody such understanding
in a signed agreement.
2 The Recommended Order is hereby amended by substituting for the first paragraph
therein the following paragraph:
Upon the entire record in this case , and pursuant to Section 10(c) of the National
Labor Relations Act, as amended , the National Labor Relations Board hereby orders
that Respondent , Silby -Dolcourt Chemical Industries , Inc., d /b/a Miami Swim Prod-
ucts , Miami , Florida , its officers , agents , including Respondent Lawrence I. Hollander,
successors , and assigns , shall:
INTERMEDIATE REPORT
The original charge herein was served on February 26, 1963, the complaint issued
on April 11, and an amendment thereto issued on May 1. The case was heard
on May 20 and 21 at Miami, Florida. The issues litigated were whether the Re-
spondents had violated Section 8(a)(5) and (1) of the Act After the hearing the
General Counsel filed a brief.
Upon the basis of the entire record, ' and from my observation of the witnesses,
I adopt the following:
1 On July 30 , I issued a notice to show cause within 10 days why certain corrections
should not be made in the transcript of testimony . As the parties have manifested their
assent to such corrections , the record is hereby ordered corrected in the respects shown in
the attached Appendix B A copy of the notice to show cause , of my transmittal letter,
and of the parties' response thereto have been marked as Trial Examiner ' s exhibits and
incorporated in the record.
MIAMI SWIM PRODUCTS, ETC.
FINDINGS OF FACT
1351
1. THE BUSINESS OF THE RESPONDENTS
Silby-Dolcourt Chemical Industries, Inc., d/b/a Miami Swim Products, herein-
after called Miami, is a Florida corporation and has a principal office and place of
business in Miami, Florida, where it is engaged in the manufacture and sale of plastic
water toys and water sports items. During the 12 months preceding the issuance of
the complaint, Miami shipped directly to out-of-State points products valued in
excess of $50,000.
I find that Miami is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act and that it will effectuate the policies of the Act to assert jurisdiction
over it.
The record shows that Lawrence I. Hollander, hereinafter called Hollander, acted
as agent for Miami in conducting negotiations for Miami with the Charging Party,
and, it is alleged in the amended complaint that, in so acting, he violated Section
8(a) (5) and (1) of the Act. As such agent, he is an "employer" within the meaning
of Section 2(2) of the Act, and jurisdiction may be asserted over him on the same
basis as over his principal, Miami.
II. THE UNION INVOLVED
International Leather Goods, Plastics and Novelty Workers Union , AFL-CIO,
hereinafter called the Union , is a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICE
The amended complaint alleges that:
1. Since August 21, 1962, Hollander has bargained with the Union in bad faith,
by, inter aka, holding himself out to the Union as having authority to bind Miami
and by refusing to sign a written agreement embodying terms which he had accepted
on behalf of Miami.
2. Since August 21, 1962, Miami bargained with the Union in bad faith by, inter
alia, suspending bargaining from December 26, 1962, to January 21, 1963, because
of the pendency of unfair labor practice charges, by refusing to reduce to writing
and execute the terms of an agreement reached with the Union, and by refusing
to grant Hollander sufficient authority.
A. Sequence of events
On July 27, 1962, a representation election, conducted by the Board among Miami's
employees, was won by the Union and it was certified on August 6 as the representa-
tive of such employees.
Several days after the election, Puga, an employee of Miami, had occasion to talk
to Miami's president, Dolcourt, about the election. It is undisputed that in the
course of this conversation Dolcourt deplored the fact that all his Cuban employees
had voted for the Union, and related that he had once operated a plant in New York
and that, when a union came upon the scene, he closed the plant; and it is not denied
that, in Puga's words, Dolcourt asserted that he "never would sign with any union
because he don't like the union and he has too much nand he don't need the union in
the factory because that will bring him more trouble and he will close that factory
too " The discussion ended with a comment by Dolcourt that Miami's lawyer would
meet with the Union the next day.
Miami's lawyer, Hollander, did in fact meet on August 1 with the Union's Inter-
national representative, Schwartz. Miami's vice president, Feinberg, also attended.
At this, the first bargaining session, Hollander announced that he had authority only
to "negotiate" concerning contract terms and not to make any commitments bind-
ing on Miami. Feinberg confirmed this statement. About a week after this meet-
ing, Schwartz delivered to Hollander a copy of the Union's proposed contract, and
then visited the plant where he met Dolcourt. Dolcourt termed the employees "un-
grateful" and "traitors," asserting that "he didn't intend to have them tell him how
to run his business." Thereafter there were nine bargaining sessions (August 17,
September 7 and 24, October 3, 11, and 25, and November 29, 1962, and January 21
and February 19, 1963) 2 at which Hollander alone attended for Miami. On
April 19, Schwartz submitted to Hollander a complete draft of a contract, contain-
2 All references hereinafter to the months of August through December relate to months
In 1962, otherwise, the applicable year is 1963.
1352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing the terms which he believed he and Hollander had agreed to during the negotia-
tions. About May 10, this draft was transmitted by Hollander to Feinberg, who
voiced objections to certain provisions, and at the time of the hearing (May 20
and 21) no contract had as yet been executed.
B. Discussion
1. The appropriate unit; Union's majority status
It is undisputed that the following employees of Miami constitute a unit appropri-
ate for purpose of collective bargaining.
All production and maintenance employees, including shipping and receiving
employees, but excluding office clerical employees, sales personnel, guards,
professional employees, and supervisors as defined in the Act.
On August 6, 1962, the Board certified the Union as the representative of the em-
ployees in the foregoing unit.
2. The refusal to bargain in good faith
a. The refusal of Miami to execute a contract
The General Counsel seems to have taken inconsistent positions with respect to
certain of the alleged violations of the Act, complaining, on the one hand, of the
fact that Hollander had no authority to bind Miami, and, on the other hand, of the
refusal of Respondents to execute a written agreement embodying the understanding
reached between Hollander and Schwartz. It would seem that if Hollander had no
authority to bind Miami, any terms negotiated by him being subject to its approval,
such agreement as he may have reached with the Union would not constitute a legally
binding contract which either Hollander or Miami was required to reduce to writing
or execute under Section 8(a)(5) of the Act. While that subsection, as amplified
by Section 8(d), makes it an unfair labor practice for a party to refuse to "execute
a written contract incorporating any agreement reached if requested by" the other
party, I take it this applies only where the "agreement reached" is one that is legally
binding on the parties and that the foregoing language does not apply to a tentative
agreement reached by one who had not authority to conclude a final, binding
agreement.3
The General Counsel seeks to reconcile this apparent conflict by contending that,
while Hollander had no actual authority to bind Miami, Miami is estopped by
Hollander's conduct during the negotiations to deny that he had such authority.
Thus, the General Counsel's position with regard to this aspect of the case, insofar
as it affects Miami, reduces itself to the following propositions: (1) That Hollander
and Schwartz reached complete agreement on all contract issues, and (2) that
Miami is estopped to deny that Hollander had authority to bind Miami with respect
to such agreement.
Miami denies both that complete agreement was reached between Hollander and
Schwartz and that it is estopped to deny Hollander's authority to bind it. These
issues will be considered seriatim.
(1) Was there a complete agreement?
It is undisputed that about a week after the initial meeting of August 1, Schwartz
submitted a complete contract proposal, and that in the ensuing meetings the
various clauses of this proposal were discussed by Hollander and Schwartz, and,
according to Schwartz, by the end of the November 29 meeting all differences be-
tween him and Hollander had been resolved, except with respect to five "articles"
proposed by Hollander at that meeting relating, inter alia, to management preroga-
tive and grievance procedure. Schwartz added that, in presenting these articles to
him, Hollander indicated that they were the only matters remaining to be settled;
that at the next meeting, on January 21, the foregoing five articles were discussed; that
it was agreed to delete some of the provisions thereof and to amend others; that at
the conclusion of the meeting all substantive differences had been resolved; and
that it was agreed that Hollander would reduce to writing the five articles as revised
and all other terms agreed upon by Schwartz and Hollander.
3 See Paul Robey, an individual d/b/a Crown Drug Company, 136 NLRB 865, where the
Board refused to order an employer to sign an agreement negotiated by one with no power
to bind the employer.
MIAMI SWIM PRODUCTS, ETC. 1353
On January 28, Schwartz wrote Hollander, reciting the fact that at the January 21
meeting negotiations had been "concluded" on a collective-bargaining agreement,
which was to be reduced to writing by Hollander that week. The letter then re-
quests that, in view of the parties' "complete agreement," the 10-cent wage increase
agreed upon be placed in effect immediately, even before the formal execution
of the contract. Elsewhere the letter lists the items purportedly covered by the
agreement reached, and states:
Since agreement has been reached on all of these items, save and except for the
wording over which there is no insistence on any particular words or type
[sic] to be included, and since you are experienced and adept at drawing
clauses to be included in union contracts, we see no reasons why there should
be any great delay or further problems.
Hollander replied on January 30 as follows:
I shall prepare the written agreement in accordance with the discussion we
had at our last meeting, and I suggest that we meet at my office on Friday,
February 15, 1963, at 2:00 o'clock p.m. at which time I shall furnish you with
the written contract for further discussion to see if the same meets with our
mutual understanding.
Until such time as we execute the contract, I cannot agree to put into effect
the economic factors agreed upon. Also, as I have expressed to you on many
occasions, my agreements are still subject to confirmation by my clients, it
being my intention that if you and I agree upon all phases of the contract,
including the language thereof, I shall submit same and recommend the
execution of same by my client.
In a letter of February 9, Schwartz expressed confidence that Miami would accept
Hollander's recommendations as reflected in the agreement reached with Schwartz,
citing prior statements by Hollander that his clients "would go along with' any
agreement" he would make. However, at the next meeting, held on February 19,
Hollander handed Schwartz a letter drafted by Hollander, which took issue with
Schwartz' interpretation of Hollander's authority to bind Miami, and concluded that
in view of this difference of opinion as to Hollander's authority, he had decided
not to submit to Schwartz at the February 19 meeting, as he had promised to do,
"a written proposal in contract form, embodying the agreements we reached through
many prior meetings," inasmuch as such action might be construed as a "direct
offer" 4 by Hollander to Schwartz, and Hollander requested in this letter that
Schwartz, instead, submit to Hollander "a written proposal in contract form em-
bodying your interpretations of our past meetings and conversations and the results
thereof."
Pursuant to this request, Schwartz prepared a draft incorporating all the matters
which he believed had been agreed to, and submitted it to Hollander on April 19.
He was handicapped, however, in preparing this draft by the fact that he did not
have before him a copy of the "5 articles" discussed above,5 nor did he have
any written record of the various agreed-upon revisions of those articles. Accord-
ingly, it is clear, as the General Counsel conceded at the hearing, that this draft
agreement prepared by Schwartz does not accurately reflect the agreement allegedly
reached on January 21 6
To sum up Schwartz' version, on January 21, 1963, he and Hollander reached
a complete agreement, which Hollander undertook to reduce to writing, but, when
a dispute flared up over the binding effect of such agreement on Miami, Hollander
proposed that Schwartz prepare a draft of the agreement, which he did, albeit
with some inaccuracies. If this version is credited, it would follow that, while
Schwartz did not succeed in transcribing accurately the terms thereof, there was a
complete agreement on January 21.
Hollander's version was that complete agreement was never reached between
him and Schwartz. More specifically, Hollander asserted that at the January 21
meeting, the following issues were left unresolved:
4 At the hearing, Hollander explained that by this phrase he meant a "binding offer."
i He had returned the only copy of these articles to Hollander and failed to retrieve it
when he prepared his draft agreement These articles, with notations regarding revisions,
were introduced at the hearing as General Counsel's Exhibits Nos 27 to 31, inclusive
9 Comparison of articles 14, 15, 24, and 25 of Schwartz' draft agreement (General
Counsel's Exhibit No 26) with the provisions of the "5 articles" relating to the same sub-
ject matter, reveals substantial differences, even taking into account the various 'evisions
of the "5 articles" described by Schwartz at the hearing
1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. The inclusion in the "no-strike" clause of a provision imposing liquidated
damages upon the Union for breach of such clause.
2. The inclusion in the contract of a clause defining the job classifications in
Miami's plant.
Hollander testified further that when, early in May 1963, he submitted Schwartz'
final draft to Miami's vice president, Feinberg, Hollander stated that "these are the
agreements essentially we had reached," and he testified that he was at that time
"essentially in agreement with the clauses included in the contract except for certain
clauses which could be done [sic] by interlineation." When asked to identify
those clauses, Hollander indicated that he would have altered the arbitration pro-
vision drafted by Schwartz to provide for the selection of three arbitrators, one
by each party, and the third by the other two arbitrators,7 a procedure to which
Schwartz had allegedly agreed on January 21, and that he would have inserted a
provision assessing liquidated damages against the Union in case of breach of the
no-strike clause.
Thus, if one credits Hollander, complete agreement was not reached on Janu-
ary 21, because of failure to resolve the matter of job classifications and a "damage"
clause, and complete agreement was not reached thereafter, on the basis of Schwartz'
final draft, because such draft did not contain the aforementioned "damage" clause
and provided for a method of appointing arbitrators which differed from that agreed
to on January 21 a In sum, Hollander's position was that there was no complete
agreement between him and Schwartz on January 21 because of the failure to agree
on a "damage" clause, and job classifications, nor in May because of the "damage"
clause and arbitration issues. Schwartz, on the other hand, denied that there was
any discussion on January 21 of job classifications or a "damage" clause, and insisted
that the arbitration clause in his April 19 draft reflected the agreement reached on
January 21.
In -resolving the foregoing conflict insofar as it relates to the alleged agreement of
January 21, 1 deem it proper to give special weight to certain admissions by Hollander
in correspondence with Schwartz ante litem motam. On February 9, Schwartz had
written Hollander deploring any further delay in executing the contract, and assert-
ing that they had "already agreed on everything" and that all that remained was
reduction of the agreement to writing. In his reply letter of February 19, although
taking issue with other statements in Schwartz' letter relating to his authority to bind
Respondent, Hollander does not question the accuracy of Schwartz' assertion that
complete agreement had been reached, and, in fact, acknowledges that Hollander
promised to submit "a written proposal in contract form, embodying the agreements
reached through many prior meetings." The foregoing quoted language appears to
contradict Hollander's testimony that he had undertaken on January 21 to deal in
his draft of a contract with unresolved issues as well as those that had been resolved,
and lends support to Schwartz' testimony that there were no unresolved issues on
that date, and that all that Hollander had to do was prepare a draft which, as
Hollander's own letter puts it, embodied "the agreements reached through many
prior meetings."
I find therefore that full agreement was reached between Hollander and Schwartz
on January 21 .9
Moreover, even if it were found that there was no such agreement on January 21,
the record would still warrant a finding that there was such agreement in May on
the basis of Schwartz' final draft. Feinberg testified that Hollander's task was to
negotiate a complete contract with Schwartz and submit it to Miami for its approval
This accords with Hollander's understanding, as reflected in his letters of January 30,
7 Schwartz had provided for only one arbitrator, to be designated with the aid of the
Federal Mediation and Conciliation Service.
8 The matter of defining job classifications, which, according to Hollander. remained un-
resolved on January 21, was not dealt with in Schwartz' final draft However. Hollander
did not cite that as an obstacle to acceptance of that draft, presumably because, as he
explained at the hearing, such definition was desired only by the Union, for the protection
of the employees Moreover, the fact that such draft differed from the January 21 agree-
ment with respect to the language of the "5 articles" (see above) was not regarded by
Hollander as of any moment when he submitted the draft to Feinberg, as he makes no
reference thereto in his testimony
9 For reasons indicated above, the terms of such agreement would have to be gleaned
(1) from Schwartz' April 19 draft and (2) from the evidence in the record as to the re-
visions of the five articles agreed upon on January 21, but which were inaccurately
rendered in Schwartz' draft.
MIAMI SWIM PRODUCTS, ETC. 1355
quoted above , which concludes with the assurance to Schwartz that Hollander will
submit a contract to his client and recommend its execution , once agreement is
reached on "all phases of the contract ." [Emphasis supplied .] I find therefore that
it was Hollander's responsibility to submit a complete agreement to Miami.
Hollander testified that he did submit Schwartz' final draft to Feinberg early in
May, and, when asked what he told Feinberg , Hollander replied:
I just told him that this was the contract , and told him to, of course , go over it,
that these are the agreements essentially we had reached and I want your feelings
on the matter , your partners ' thought in regard to the contract.
While Hollander subsequently testified , as already noted, that he had reservations
about the draft in certain respects already discussed , including the omission of a
"damage" clause , there is no testimony either by Hollander or Feinberg that Hollander
communicated these reservations to Feinberg , nor is there any explanation of his
failure to do so. It was inconsistent with Hollander 's responsibility , as found above,
for him to submit to Miami a contract as to which there was not complete agree-
ment between him and Schwartz , or, having submitted such a conract , not to advise
Feinberg of the area of disagreement . 10 Certainly , if Hollander regarded the absence
of a "damage" clause, for example, as of any moment , it was his duty to call it to
Feinberg 's attention . As I do not deem it likely that Hollander would thus act
contrary to his duty to his client , the fact that he submitted Schwartz' final draft to
Feinberg with, as he testified , merely the statement that this was the contract nego-
tiated with Schwartz is persuasive either that Hollander did not in fact have any
reservations about the contract , or that, if he did, he did not regard them as a suffi-
cient reason for not executing the contract as drafted by Schwartz.
I find therefore that , in May ( as well as January ) there was complete agreement
between Schwartz and Hollander on the terms of a collective -bargaining contract
(although, for reasons already noted, there were some discrepancies between the
agreements reached in January and in May).
(2) Is Miami bound?
The question remains whether Miami is bound by any agreement reached between
Hollander and Schwartz , so that it may now be required to execute such agreement.
It is not disputed that at the initial bargaining session on August 1, both Hollander
and Feinberg made it clear to Schwartz that any contract negotiated by Hollander
would be subject to Miami's approval . Moreover , there is no contradiction of Fein-
berg's testimony , which I credit, that Miami at no time advised Hollander of any
enlargement of his authority , nor is there any contention that any such advice was
given directly by Miami to Schwartz . General Counsel contends , however, in his
brief that Miami is estopped to deny that Hollander had power to bind it after mid-
November 1962, when Miami received, and failed to disavow , a copy of a letter
dated November 13, from Hollander to Schwartz , which, according to the General
Counsel , stated that Hollander had full authority to bind Miami. Respondents deny
that such was the intent or meaning of the letter.
In resolving this point , it becomes necessary to consider the circumstances under
which the letter was written as well as the contents thereof. By letter of No-
vember 8,11 Schwartz had taxed Hollander with reneging on promises to discuss con-
tract proposals with his "clients" and to bring them to the bargaining sessions, and
requests that Hollander arrange for their attendance at future meetings.
In a reply letter of November 13, Hollander rejected this request , stating*
It is not my intention at this time to . have my clients present at said
meeting inasmuch as I feel and have advised you that at this particular stage
of our negotiations that [sic] I have complete authorization and authority from
my clients to act for and on its [sic] behalf.
to As already related, Hollander testified, in effect , that he felt that a "damage" clause
and a provision for a three-man arbitration board could be inserted in the agreement by
"interlineation ." However , this does not explain his failure to suggest this to his client
or how such interlineation would discharge Hollander 's responsibility to submit a complete
agreement to Miami. Obviously , the agreement would still be incomplete unless and until
Schwartz assented to the interlineated changes
11 This letter bears the date of "November 15" (see General Counsel's Exhibit No. 13).
However , at the hearing Schwartz testified that this date was erroneous . the correct date
being November 8
1356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A copy of the foregoing letter was sent to Miami and was admittedly seen by
Feinberg, who, so far as appears from the record, made no comment thereon to
Hollander or Schwartz.
The General Counsel contends that the effect of the letter is to assert that Hollander
had complete authority to bind Miami, and, having failed to disavow this assertion,
Miami is estopped to deny that Hollander had such authority when he subsequently,
as found above, reached agreement with the Union. Hollander, however, chal-
lenges this interpretation of the letter, contending, in effect, that it was merely in-
tended to convey that he had full authority to conduct the negotiations at that point,
without the presence or assistance of any other representative of Miami, but was not
intended to suggest that there had been any enlargement of his authority so as to
enable him to bind Miami by his negotiations; and Feinberg testified in substance that
this was his understanding of the import of the letter
It may be argued against this position that it was at least implicit in Schwartz'
letter of November 8, that he wanted officials of Miami to attend the bargaining
meetings so that they could make binding commitments at the bargaining table regard-
ing the matters under discussion and that, when such request was rejected by Hollander
on the ground that he had full authority "to act for" Miami, Schwartz was justified
in believing that Hollander meant that he was empowered to bind Miami, and there
was therefore no need for any other representative of Miami to attend the negotiations.
On the other hand, it must be noted that Hollander's statement that he had full
authority to act is qualified by the phrase "at this particular stage of our negotia-
tions," which circumstance tends to support Respondents' contention that Hollander
meant only to say that he was the only one designated at that time to deal with
Schwartz, and that not until some later phase of the negotiations (i.e., when full
agreement had been reached between Schwartz and Hollander) would there be
any intervention by anyone empowered to bind Miami.12 However, whatever
Hollander's intention , in view of the letter's ambiguity, it cannot be said that it
would have been unreasonable for Schwartz to construe the letter as claiming the
power to bind Miami. The question remains whether Schwartz did in fact so
construe it. That he did not, is evidenced by the fact that in his next letter to
Hollander (on December 14) Schwartz again proposes, in effect, that he meet
with Hollander and his "clients in order to . . . conclude a collective bargaining
agreement ." On that date negotiations were still incomplete, there being some
issues still unresolved. If Schwartz construed Hollander's letter of November 13
as a claim of authority to bind Miami, and genuinely believed that he had such
authority there would appear to have been no reason for him to propose again a
meeting with Hollander's "clients" for the purpose of discussing the unresolved
issues. Further, in his next letter of December 18, Schwartz refers to Hollander's
promise that they would meet with his "clients and perhaps conclude an agreement."
It is thus evident that whatever impression Schwartz may have gleaned theretofore
as to Hollander's authority, he was aware on December 14 and 18 that any agree-
ment reached between him and Hollander would have to be submitted to Miami's
officials for their approval.
It is true that, when this requirement of company approval was later cited, in
Hollander's letter of January 30, Schwartz, in replying on February 9, referred
(1) to alleged (oral) statements by Hollander at bargaining meetings that Miami
would "go along with any agreement" reached at such meetings, and (2) the fact
that the absence of Miami officials from the bargaining meetings had been ex-
plained by Hollander and Miami on the ground that Hollander "had full authority
to negotiate," leading Schwartz to assume that Miami would "go along with"
Hollander's recommendations.
As to (1), the short answer is that, even if such (oral) statements were made
during negotiations,13 there is no evidence or contention that they were authorized
or adopted by Miami. It is well settled that an agent cannot enlarge his authority
by his own act.14 Moreover, as already stated, Schwartz' repeated requests on No-
12 Perhaps, this meaning would have been more aptly expressed if Hollander had in his
letter described his authority at the particular stage of the negotiations as "exclusive"
rather than as "complete," for Hollander's position was essentially that his authority was
complete only in the sense that he did not at that point share with anyone else the power
to confer with Schwartz
13 Hollander's reply letter of February 19 asserts that his statements to Schwartz were
only to the effect that he "anticipated" that his recommendations to Miami would be effec-
tive, and that these statements were made in the context of an express disclaimer of any
power to bind Miami
14 See Restatement of the Law, Agency (1958 ed ), sec 168.
MIAMI SWIM PRODUCTS, ETC. 1357
vember 8, and thereafter for participation in the bargaining by Hollander's principals
militates against a finding that Schwartz in fact was led by such statements to
believe that Hollander had the power to commit Miami.
As to (2), this presumably refers to Hollander's November 13 letter, previously
discussed,15 and, while Schwartz here sets forth his interpretation of that letter,
the weight of this as evidence that he in fact so construed the letter is impaired
by its self-serving nature as well as by the difficulty of reconciling such interpreta-
tion with Schwartz' repeated requests in December, noted above, for meetings with
Hollander's "clients." 16
Upon consideration of all the foregoing matters, I find (1) that Hollander was
not in fact authorized by Miami to make binding commitments,17 and (2) that
Miami is not estopped to deny that he had such power by any statement of
Hollander to Schwartz concerning his authority, as (a) the only such statement
which came to the attention of Miami was Hollander's November 13 letter, which,
while somewhat ambiguous, was not in fact understood by Schwartz, to assert a
power to bind Miami,18 and (b) no estoppel could apply as to any of Hollander's
other (oral) statements, as they were not known to Miami and were not, in any
event, construed or relied upon by Schwartz as assertions of power to bind Miami.
I conclude, therefore, that, while Schwartz and Hollander reached complete agree-
ment as early as January 21, Miami was not bound by such agreement, and that
its failure to execute a written contract embodying such agreement did not violate
the requirements of Section 8(d) of the Act cited above.19
b Other allegations of violations of Section 8(a) (5) by Miami
The General Counsel contends that the Respondents violated Section 8(a)(5)
in respects other than that heretofore considered. Essentially, this contention is
that Miami bargained in bad faith as shown by the manner in which the negotiations
were conducted 2°
With respect to this aspect of the case, the complaint, as amended, alleges that
Miami bargained in bad faith with no intention of reaching an agreement, as
evidenced by the following conduct:
(a) Suspension of bargaining from December 26 to January 21 because the
Union filed charges against Miami
(b) Refusal of Hollander, since January 21, to refer to Miami for approval
the agreement reached between him and the Union.
(c) Refusal of Miami to grant Hollander or any other agent "sufficient
authority . . . to negotiate a contract."
15 While Schwartz' letter of February 9, as noted above, refers to statements by Miami,
as well as Hollander, concerning Hollander's authority, there is no evidence or contention
that any such statements were made directly to Schwartz by officials of Miami
10 Moreover, I deem it significant that Schwartz' February 9 letter (like Hollander's
reply) speaks in terms of "recommendations" by Hollander, which implies recognition
that, whatever weight such recommendations might have, Hollander was not empowered to
make legally binding commitments and that Miami would have the last word
17 This is conceded by the General Counsel
11 There can be no estoppel without reliance, Restatement of the Law, Agency, supra,
sec 8d See also see 166e
10 There may, moreover, be some question whether the Union ever requested Miami to
execute any written contract. (Absent such request, the failure to execute would not be
unlawful under Section 8(d) ) The record shows only that Schwartz submitted his draft
to Hollander on April 19, and met about May 1 with Hollander who promised to discuss the
draft with Miami and call Schwartz. Any finding of a request to execute would have to
be inferred from the circumstances In view of my disposition of the matter, I do not
deem it necessary to pass on this point.
30 Had it been found above that a legally binding agreement was in fact negotiated by
Hollander, which Miami was required to execute, any further finding that such contract
was negotiated in bad faith would seem at the very least, to be moot The appropriate
remedy for such further findings would be an order requiring Respondents to bargain, and
it is not apparent what useful purpose would be served by an order to bargain if the
parties had already reached a binding agreement. There would in that case be nothing
left for them to bargain about. Indeed, the General Counsel indicated, in effect, at the
hearing that the only remedy he was seeking in the event of a finding that there was a
binding agreement was an order requiring merely that Respondents sign such an agree-
ment ; for he submitted at the hearing it draft of a proposed remedial order to that effect.
1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As to (a), the record shows that on December 17 the Union filed a charge with
the Board against Miami (Case No. 12-CA-2538) alleging violations of Section
8(a)(1), (3), and (5). The next day, Schwartz wrote Hollander requesting a
meeting. On December 26, Hollander, in reply, stated -that, in view of the Union's
filing of the charge that Miami had refused to bargain in good faith , the "atmos-
phere" was not "conducive to . . . further negotiations," and he concluded:
It is therefore my suggestion that until these charges are disposed of .. .
further meetings between us be suspended.
It was not until January 15 that Hollander consented to meet again with the
Union. It is well-settled that the filing of charges with the Board does not relieve a
respondent of the duty to bargain. I find therefore that, by rejecting Schwartz' re-
quest for a meeting on that ground, Miami violated Section 8(a)(5) and (1) of
the Act 21
As to (b), above, there is no evidence that Hollander refused to submit the agree-
ment of January 21 to Miami. On the contrary, it has been found that early in
May he did submit to Feinberg Schwartz' version of that agreement. The inclusion
of this allegation in the complaint seems attributable to the fact that the complaint
issued several weeks before the contract was referred to Feinberg, and the allegation
seems, in any event, to have been abandoned by the General Counsel, as he makes
no reference thereto in his brief. I find no merit therein.
As to (c), above, which relates to Hollander's limited authority this raises the
more basic question whether Miami was bargaining through Hollander with an
honest desire to reach a binding agreement.
A revealing clue to Miami's approach to bargaining is afforded by the statements
made early in August by Miami's president, Dolcourt, to Puga, and to Schwartz.
As related above, these statements were to the effect that the employees were
"traitors," that Dolcourt did not intend to have them tell him how to run his business,
that he would never sign a contract with any union, and that he would sooner close
the plant 22
The question arises why Miami nevertheless proceeded to negotiate at some length
through Hollander, and permitted him ostensibly to reach accord with Schwartz on
all the issues in dispute. At first blush, such conduct would seem to argue Miami's
good faith. However, upon closer scrutiny of the manner of Hollander's bargaining
and the limitations imposed thereon by Miami, it becomes apparent that such bar-
gaining was better calculated to avoid, rather than to reach agreement.
It has been found that Hollander had no power to bind Miami but merely to dis-
cuss the contract issues with Schwartz and to submit to Miami for approval any agree-
ment he might reach. As to the effect which Miami would give to such agreement,
Feinberg testified that he would regard it as representing Hollander's recommen-
dations as to what terms Miami should accept, but, at the same time, Feinberg
admitted that, while he would give great weight to such recommendations with regard
to the "legal aspects" of the contract, he would give little, if any, weight thereto on
economic issues, in view of Hollander's unfamiliarity with Miami's operational
problems.
It follows that Hollander was in the peculiar position of having authority to nego-
tiate an agreement on economic issues for a client who intended to pay scant atten-
tion to any settlement he might effect in that vital area. One would think that, if
Miami had so little confidence in Hollander's ability to deal with its economic prob-
lems, it would have briefed him at some point during the negotiations as to its posi-
tion with regard to such matters. However, Hollander, himself, admitted that, while
he had many contacts with Feinberg during the period of the negotiations, in the
course of which reference was made to the negotiations, there was little discussion of
the merits of any particular proposal, but for the most part merely reports by him
on "what was going on." 23 Feinberg's testimony on this point was equivocal. He
21 E.g., Solo Cup Company, 142 NLRB 1290 ( IR) (Suspension of bargaining for 15 days
because of the filing of charges )
22 While it would appear that by Dolcourt's statement that he would never sign a con-
tract and would sooner close the plant, Miami independently violated Section 8(a) (1) of
the Act, the General Counsel does not allege any such independent violation, presumably
because the statements were made more than 6 months before the filing of the instant
charge. See Section 10(b) of the Act. However, such statements may properly be con-
sidered as background evidence in evaluating Miami's good faith. United States Gypsums
Company, 143 NLRB 1122
23 The only exception to this procedure appears to have been with respect to the matter
of the wage increase Hollander testified that be mentioned to his clients the proposal for
MIAMI SWIM PRODUCTS, ETC. 1359
repeatedly stated that , in his discussions with Hollander he refrained from taking any
firm position on any issue until he could see the entire contract , but at the same time
he asserted that Hollander 's role in the negotiations was to discuss "the points" that
Feinberg had raised with Hollander, thereby implying that he had given Hollander
definite statements of position on the contract issues. However, he was vague as to
what these "points" were and when he had raised them with Hollander.
In view of Feinberg 's equivocation and vagueness , and in view of Hollander 's frank
admission that there was little discussion between him and Feinberg of the merits
of any particular proposal, I do not credit Feinberg 's testimony to the extent that it
conflicts with Hollander 's, and find that, except for the wage increase , Feinberg took
no position , tentative or otherwise , vis-a-vis Hollander with respect to any of the
matters in issue. The wage increase, although an important economic issue, was
only one among a multitude of such issues.
There is thus presented the spectacle of Hollander purporting to negotiate a sort
of "preliminary" contract , although he had no familiarity with Miami's operational
problems, and no advance briefing on its bargaining objectives , and although Miami
admittedly had no confidence in his judgment on the economic issues involved in the
bargaining . He was thus in the position of bargaining at random . Had Miami
honestly desired to reach a binding contract , it would have been pure happenstance if
Hollander's negotiations had produced an agreement that coincided with Miami's
bargaining objectives.
The fact that Miami should elect to employ a bargaining technique that was so
ill-adapted to reaching agreement is persuasive that Miami did not in fact desire an
agreement . It is not surprising therefore , that when Hollander submitted to Feinberg
the result of his negotiations , Feinberg rejected it because he allegedly found fault
with four specific provisions and "several more" which were not specified at the
hearing.
I am constrained to find, therefore , that, as Dolcourt admitted to Puga, Miami had
no intention of entering into an agreement with the Union ; and that, to avoid such
agreement , while appearing to comply with the Act, Miami resorted to the device
of bargaining through an agent, and of reserving the power to reject any agreement
he might negotiate.
I conclude therefore that Miami did not bargain in good faith on and after Au-
gust 21 , and that it thereby violated Section 8 ( a) (5) and ( 1) of the Act 24
C. The allegations as to Hollander
The amended complaint, as further amended at the hearing, alleges that Hol-
lander failed to bargain in good faith , as evidenced by the following acts:
(a) Holding himself out to the Union as having authority to negotiate on behalf
of, and ' bind, Miami.
(b) Failing to report the progress of negotiations to Miami.
a 10-cent raise , and they indicated in effect that they had already decided to give such an
increase
24 At the hearing the Respondents adduced evidence that Schwartz lacked power to bind
the Union , as he was required to submit the result of the negotiations to the Union's mem-
bers for their approval . This raises the question whether a limitation on the authority of
a union's negotiator excuses a like limitation on the authority of an employer 's negotiator.
While there are cases so holding ( see The Philip Carey Manufacturing Company (Miami
Cabinet Division ), 140 NLRB 1103 ; Midwestern Instruments, Inc., 133 NLRB 1132,
1139-1140 ; Rice Lake Creamery Company, 131 NLRB 1270, 1292-1294; W. W. Cross and
Company, Inc, 77 NLRB 1162 , footnote 11), in those cases, there was no evidence , as there
is here, that the reservation by the respondent of power to reject any agreement reached
by its agent was for the purpose of foreclosing the negotiation of a binding agreement
See W. W Cross and Company , Inc., supra The only question in those cases was essen-
tially whether bargaining through an intermediary satisfied the requirement of the Act
that the parties meet and confer-or, in other words, whether such bargaining was a per ae
violation , absent any evidence of bad faith . It appears to be the view of the Board that,
under such circumstances , the respondent ' s negotiator need have no greater power than
his opposite number, presumably on the ground that it would be inequitable to require a
respondent who sincerely desires to reach agreement to make binding commitments at the
bargaining table in exchange for tentative commitments by the other party. However,
such considerations are not relevant where, as here, the respondent has no intention of
reaching a binding agreement , and engages merely in surface bargaining for reasons un-
related to any limitation on the authority of the other party's agent. See Han-Dee Spring
& Mfg Co., Inc ., 132 NLRB 1542 , 1543-1544; Bewley Mills, 111 NLRB 830 , 831, footnote 2
1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Failing and refusing to sign a written agreement embodying terms and con-
ditions which he had agreed to on behalf of Miami.
(d) Failing to advise the Union promptly concerning the areas of agreement
which were not acceptable to Miami.
(e) Failing to advise the Union promptly as to which of his recommendations
were being rejected by Miami and the reasons therefor.25
These matters will be considered seriatim:
1. Assertion of authority to bind Miami
The gist of the General Counsel's complaint here appears to be that Hollander
falsely held himself out as having authority to bind Miami 26 and the General
Counsel' s main reliance here appears to be upon the letter of November 13 dis-
cussed above. It has already been found that that letter was ambiguous with regard
to the extent of Hollander's authority, as it might be read to mean , either, as the
General Counsel contends, that Hollander had the power to bind Miami, or, as
Respondents contend, that he had the sole authority at that point to meet and
confer with the Union. However, such ambiguity would not constitute evidence of
bad faith, unless Hollander in fact intended thereby to convey the misleading
impression that he had the power to bind Miami. Hollander denied that this
was his intention.27 Such denial was not contradicted by any other evidence and
is not so inherently incredible that I would feel justified in rejecting it out of hand
Accordingly, I find insufficient evidence of bad faith in the November 13 letter.28
25 It was also alleged that Hollander's bad faith was evidenced by his failure to advise
Miami that the duty to bargain required more than "a mere readiness to meet and talk "
At the hearing General Counsel adduced no evidence to support this other than such in-
ference as might be drawn from the totality of Respondents' conduct. However, as I did
not deem this a sufficient ground for inferring what advice Hollander actually gave Miami,
I granted Respondents' motion to dismiss that allegation, after the General Counsel had
rested. No reference is made to this point in General Counsel's brief, and it has pre-
sumably been abandoned.
29 Thus, at one point in his brief, the General Counsel states that Hollander's had faith
was evidenced by his "unfounded assertion that he had complete authority to act for"
Miami. [Emphasis supplied ]
27 While Hollander's actual intention in writing the November 13 letter would not be
relevant on the issue of estoppel (the critical question there being what Schwartz reason-
ably understood the letter to mean), such intention is relevant here in appraising
Hollander's good faith, which necessarily involves an inquiry into his state of mind.
a It is not clear whether Geneial Counsel also relies here on certain testimony of
Schwartz that Hollander stated during negotiations that, while he did not have authority
to bind Miami, "when he gave his word on something it was finished," that when
Hollander agreed to something, Schwartz could "accept it as having been agreed to," and
when Hollander said "it was done it was finished." Hollander admitted at the hear-
ing that he told Schwartz that he felt his recommendations would be accepted by Miami as
to "legal" and "technical" clauses in the contract, and his testimony is silent as to what
weight he thought would be accorded to his economic recommendations. However, his
letter of February 19, cited above, acknowledges that he told Schwartz that he felt his
recommendations would be "effective," and the letter draws no distinction in this regard
between "legal" and other clauses In view of Schwartz' admission that Hollander's
foregoing statements as to his authority were made in the context of a disclaimer of any
power to bind Miami, and in view of the vagueness of Schwartz' testimony on this point,
I find that Hollander did not assert that his resolution of an issue was dispositive of the
matter, but that, as stated in his letter, he merely expressed the belief that his recom-
mendations would be effective. The question remains whether even this expression was a
conscious overstatement of his actual bargaining role While I have found from Feinberg's
testimony, that Miami was not disposed to give any weight to Hollander's recommenda-
tions in the economic area, there is no evidence that Hollander knew this. In fact,
Feinberg testified that Hollander was not told what effect would be given to any of his
recommendations, and it would have been logical for Hollander to assume, absent any in-
dication to the contrary, that his recommendations would be treated with the same
deference usually accorded to the recommendations of one entrusted with negotiating a
contract See also the discussion of this point, below. Accordingly, I find insufficient
evidence of bad faith in Hollander's oral representation as to his bargaining authority.
MIAMI SWIM PRODUCTS, ETC. 1361
2. Failure to report progress of negotiations to Miami
This evidently has reference to Hollander's alleged failure to give Miami progress
reports during the course of the negotiations. In his brief the General Counsel
contends that Hollander was "responsible for the failure to communicate the course
of negotiations to his principal" during a 5-month period-i.e., from mid-August
to mid-January. However, it is not clear on what evidence the General Counsel
bases his contention that there was no such communication between Hollander and
Miami. The only evidence on the point is that of Hollander and Feinberg that
during the period covered by the negotiations there were a number of meetings
between Hollander and his clients at which reference was made to the negotiations,
and at which Hollander reported on the state of the negotiations. While it is true
that, as found above, such reports were merely general in nature and there was little
discussion of the merits of any particular proposal, the record precludes a finding
that there was a total failure to report, as alleged by the General Counsel, or that
the frequency of the reports made did not meet the requirements of good-faith
bargaining. Accordingly, I find no merit in that allegation.
3. Failure to sign written agreement
Subparagraph (c) alleges Hollander's refusal to sign a written contract embody-
ing the terms he had agreed to on behalf of Miami. It has already been found that
Miami was not legally required to execute such an agreement, and there is no reason
to discredit Hollander's testimony that, because of his limited authority, he did
not regard the agreement reached between him and Schwartz as binding on Miami.
Moreover, there is no evidence that it was contemplated at any time that Hollander,
rather than an officer of Miami, would sign such agreement as might be. negotiated.
I perceive no basis, therefore, for finding that Hollander's failure to sign evidenced
bad faith. (It is clear from General Counsel's brief, in any event, that he does not
seek an order requiring Hollander to sign an agreement. Such an order would more-
over be incongruous if, as I have found, Miami is not bound by such agreement.)
4. Failure to advise the Union of the contract proposals not acceptable to Miami
This allegation, as distinct from the one next mentioned, presumably refers to
the alleged failure of Hollander to notify Schwartz, during the negotiations, of
Miami's position on each item being considered by the negotiators. Thus, in his
brief, the General Counsel cites as evidence of bad faith Hollander's failure to
"obtain from his principal agreement or disagreement as to each item negotiated
by Schwartz and Hollander, and his failure to transmit to Schwartz the position of
the principal." As already found, while Hollander made frequent reports to Miami
on the negotiations, there was rarely any discussion of the merits of any proposal,
and only with respect to the wage increase is there any evidence that Hollander
made any effort to elicit from Miami its reaction to a bargaining issue. However,
whether such conduct evidenced bad faith on the part of Hollander may more
properly be considered in the context of Hollander's total conduct, rather than in
isolation. Such consideration will be attempted at a later point in this report.
5. Failure to advise the Union of Miami's rejection of the agreement and the
reason therefor
Hollander received Schwartz' final draft on April 19, and, when they next met,
about May 1, Hollander told Schwartz that he had not yet read the draft but
would discuss it with Miami and contact Schwartz
Feinberg reveiwed Schwartz' final draft about May 10, and Hollander testified,
without contradiction, and I find, that it was not until May 13 that he was fully
apprised of Feinberg's objections to the agreement. Hollander testified further
that he discussed them with Feinberg only very briefly in preparation for the
instant hearing, and had not yet had an opportunity to formulate any new proposals
to the Union on the basis of Feinberg's objections. The implication of this testi-
mony is that Hollander preferred to wait until he had such opportunity before
reporting to Schwartz on Miami's reaction to the agreement. While it would seem
that Hollander might have acted more expeditiously in the matter of advising the
734-070-64-vol. 145-87
1362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union of his client's reaction to the agreement, I find, in view of the circumstances
related above, that his delay was not so inexcusable 29 as to evidence bad faith.30
Assuming that no inference of bad faith may be drawn from the foregoing par-
ticular items alleged by the General Counsel, considered separately, the question
remains whether Hollander's total conduct adds up to bad faith. It has already
been found that his principal, Miami, had no desire to conclude an agreement with
the Union. However, unlike the case of Miami, there is no direct evidence that
Hollander had a fixed purpose not to reach agreement with the Union nor is there
any direct evidence that he was aware of such purpose on the part of Miami and
that the function assigned to him was to engage merely in surface bargaining.
Accordingly, whether he was privy to Miami's unlawful design can be determined
only on the basis of such inferences as may be drawn from his conduct during the
negotiations. The fact that, as Miami's legal adviser and negotiator, he occupied a
confidential relation to Miami might be deemed to warrant an inference that he was
not ignorant of its desire to circumvent the Act. However, Miami may well have
feared that full disclosure of its unlawful design to Hollander might deter him from
accepting his assignment. It may be contended further that, in any event, the fact
that Miami, for the most part, failed to take any position on the merits of any
of the Union's proposals should have convinced Hollander that Miami was utterly
indifferent to the outcome of the negotiations and had no desire to conclude a con-
tract. However, if, as Hollander's February 19 letter implied, Hollander honestly
(though mistaken) believed that his client had confidence in his judgment and would
be guided by his recommendations, as reflected in the terms of such agreement as
he might negotiate with Schwartz, he might well have thought that to be the reason
for Miami's failure to discuss the contract issues with him. In this connection,
it has already been pointed out 31 that there is insufficient evidence that Hollander
did not in fact believe that his recommendations would be effective, and, indeed,
that he did so believe is affirmatively indicated by Hollander's conduct vis-a-vis
Schwartz during the negotiations, which comported with that of a negotiator who
is conscientiously endeavoring to obtain a contract for his principal on the most
favorable terms. Thus, the record shows that he bargained extensively with
Schwartz concerning the details of a lengthy and complex agreement, and suc-
ceeded in inducing Schwartz to scale down his demands in many areas.32 And,
whatever views Hollander may have expressed at the hearing regarding the extent
of agreement finally reached between him and Schwartz, the fact remains that he
admittedly submitted the product of the negotiations to Feinberg as representing
a complete agreement. It is difficult to believe that, if Hollander, a busy practi-
tioner, had been aware that he was required only to engage in sham bargaining and
that his principal had no interest in the outcome, he would have taken such pains with
the minutiae of the multifarious issues involved in the bargaining, or made such
assiduous efforts to resolve the differences between him and Schwartz. I am there-
fore not persuaded that Hollander did not sincerely desire to reach an agreement.
However, I find that in one respect Hollander deviated from the statutory require-
ment that he meet and confer with the Union. This consisted in his above-noted
refusal, for a period of about 3 weeks, to schedule a meeting because of the Union's
filing of charges against Miami 33 I find therefore that by such refusal Hollander
29 It may be noted that Schwartz himself, delayed about 2 months in submitting his
final draft of a contract to Hollander.
31 Schwartz testified that sometime after the May 1 meeting he sought the aid of the
Federal Mediation and Conciliation Service in arranging a meeting with Miami and
Hollander, and that that agency reported that it was unable to arrange such a meeting.
However, as the record does not disclose the reason for such inability, there is no basis for
finding, nor is there any contention, that Miami or Hollander refused to meet at that time.
31 See footnote 28, supra.
32 Even a casual comparison of Schwartz' original proposed contract (General Counsel's
Exhibit No. 3) with his final draft (General Counsel's Exhibit No 26) reveals so many
modifications of the Union's original demands on minor, as well as major, issues, as to com-
pel the conclusion that Hollander gave careful and detailed consideration to the Union's
proposals and made diligent (and successful) efforts to reach agreement on the basis of
terms substantially more favorable to Miami than those first proposed by Schwartz.
33 Although such refusal is not alleged by the General Counsel as a violation by
Hollander, but only by Miami, the issue was fully litigated, and is sufficiently related to
the subject matter of the allegations as to Hollander in the amended complaint. See
Granada Mills, Inc., 143 NLRB 957.
MIAMI SWIM PRODUCTS, ETC. 1363
failed to discharge his duty to meet, thereby violating Section 8(a)(5) and (1) of
the Act 34
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above , occurring in con-
nection with the operations of Miami described in section I, above, have a close,
intimate , and substantial relation to trade, traffic , and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
It having been found that the Respondents violated Section 8(a)(1) and (5) of
the Act, it will be recommended that the Respondents cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act. In this
regard I shall recommend that the Respondents be ordered to bargain in good faith,
upon request , with International Leather Goods, Plastics and Novelty Workers Union,
AFL-CIO, as the exclusive representative of the employees in the appropriate unit.
CONCLUSIONS OF LAW
1. All Miami's production and maintenance employees at its Miami, Florida, plant,
including shipping and receiving employees , but excluding office and clerical em-
ployees, sales personnel , guards, professional employees , and supervisors as defined
in the Act, constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
2. At all times material , Intel national Leather Goods, Plastics and Novelty Workers
Union, AFL-CIO, has been and still is the exclusive representative of all the em-
ployees in the aforesaid unit for the purposes of collective bargaining , within the
meaning of Section 9 (a) of the Act.
3. By refusing, since August 21, 1962, to bargain in good faith with the aforesaid
labor organization as the exclusive representative of its employees in an appropriate
unit, Miami has engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8 (a) (5) and (1) of the Act.
4. By suspending bargaining because of the filing of charges with the Board,
Hollander refused to bargain with the aforesaid labor organization within the mean-
ing of Section 8(a) (5) and (1) of the Act.
RECOMMENDED ORDER
Upon the entire record in the case , and the foregoing findings of fact and con-
clusions of law, it is recommended that Respondent , Silby-Dolcourt Chemical Indus-
tries, Inc, d /b/a Miami Swim Products, Miami, Florida , its officers, agents, in-
cluding Respondent Lawrence I. Hollander , successors , and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain in good faith concerning rates of pay, wages , hours of
employment , or other conditions of employment with International Leather Goods,
Plastics and Novelty Workers Union, AFL-CIO as the exclusive representative of
all production and maintenance employees at its Miami , Florida, plant, including
shipping and receiving employees , but excluding office and clerical employees , profes-
sional employees , sales personnel , guards, and supervisors as defined in the Act.
(b) In any like or related manner, interfering with, restraining, or coercing its em-
ployees in the exercise of their right to self-organization , to form, join, or assist the
above-named Union, or any other labor organization , to bargain collectively through
representatives of their own choosing , and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities.
2. Take the following affirmative action which is deemed necessary to effectuate
the policies of the Act:
(a) Upon request, bargain in good faith with International Leather Goods, Plas-
tics and Novelty Workers Union, AFL-CIO, as the exclusive representative of all
'4 While such violation might in a different context be deemed to indicate that, when
Hollander did meet with the Union, he negotiated in bad faith , I am unable so to find
here in view of the relatively short interruption of the negotiations involved , the fact
that upon resuming negotiations Hollander reached complete agreement with Schwartz,
and the considerations cited above negating Hollander 's awareness of Miami' s bad faith.
1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
production and maintenance employees at its Miami, Florida, plant, including shipping
and receiving employees, but excluding sales personnel, office and clerical employees,
professional employees, guards, and supervisors as defined in the Act, with respect
to rates of pay, wages, hours of employment, or other conditions of employment,
and, if an understanding is reached, embody such understanding in a signed, written
agreement.
(b) Post at its place of business in Miami, Florida, copies of the attached notice
marked "Appendix A." 35 Copies of said notice, to be furnished by the Regional
Director for the Twelfth Region, shall, after being duly signed by the Respondents
or their representative, be posted by the Respondents immediately upon receipt there-
of, and be maintained by them for a period of at least 60 consecutive days thereafter,
in conspicuous places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Ithe Respondents to insure that such
notices are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the Twelfth Region, in writing, within 20
days from the date of receipt of this Intermediate Report, what steps the Respondents
have taken to comply herewith.36
1511 this Recommended Order is adopted by the Board, the words "A Decision and
Order" shall be substituted for the words "The Recommended Order of a Trial Examiner"
In the notice. In the further event that the Board's Order is enforced by a decree of a
United States Court of Appeals, the words "A Decree of the United States Court of
Appeals, Enforcing an Order" shall be substituted for the words "A Decision and Order."
36If this Recommended Order is adopted by the Board, this provision shall be modified
to read: "Notify said Regional Director, in writing, within 10 days from the date of this
Order, what steps the Respondents have taken to comply herewith."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
WE WILL bargain in good faith, upon request, with International Leather
Goods, Plastics and Novelty Workers Union, AFL-CIO, as the exclusive rep-
resentative of all employees in the bargaining unit described below concerning
rates of pay, wages, hours of employment, or other conditions of employment,
and, if an understanding is reached, embody it in a signed written agreement.
The bargaining unit is:
All production and maintenance employees at our Miami, Florida, plant,
including shipping and receiving employees, but excluding office and
clerical employees, sales personnel, professional employees, guards, and
supervisors as defined in the act.
WE WILL NOT, by refusing to bargain in good faith, or in any like or
related manner, interfere with, restrain, or coerce employees in the exercise
of their right to self-organization, to form, join, or assist International Leather
Goods, Plastics and Novelty Workers Union, AFL-CIO, or any other labor
organization, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, or to refrain from any or
all such activities.
SILBY-DOLCOURT CHEMICAL INDUSTRIES, INC.,
D/B/A MIAMI SWIM PRODUCTS,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
Dated------------------- ---------------------------------------------
(LAWRENCE I. HOLLANDER)
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.
Employees may communicate directly with the Board's Regional Office, 1200
SW. First Street, Room 104, Miami, Florida, Telephone No. 377-1114, if they have
any question concerning this notice or compliance with its provisions.
UNIVERSAL MANUFACTURING CO., INC . 1365
APPENDIX B
1. Page 16, line 7, strike "if".
2. Page 25, line 13, change "will reserve" to "have reserved".
3. Page 43, line 11 , change "stopped from resisting" to "stopped from insisting".
4. Page 99, lines 16 and 17, change "type of" to "typed".
5. Page 121, lines 10 to 16, strike from "There" to "remains" and substitute the
following: "Even if there was one little difference the whole thing would be out of
whack, and I couldn't order them to sign an agreement incorporating verbatim the
language contained in G.C. 26, if the witness testifies that even one clause was dif-
ferent. Now, should there be an order to that effect, the question would still
remain."
6. Page 151, line 12, change "employer" to "statement".
7. Page 154, line 20, change "I" to "he".
8. Page 172, lines 7 to 12, strike entire sentence beginning with "Under" and sub-
stitute the following: "Under the modern rules you can file inconsistent pleadings and
they will be treated as alternative allegations , and so I suppose here there are alterna-
tive allegations either that you didn't have any power to bind but on some theory
of estoppel there was a binding contract or that the fact that you had no power to
bind was evidence of bad faith."
9. Page 176, line 4, strike "it" and change "that" to "why".
10. Page 177, line 19, change "answer" to "complaint" and "can't" to "can".
11. Page 178, line 15, change "error" to "merit".
12. Page 178, line 19, change "he" to "it".
13. Page 178, line 24, change "Respondents" to "Union".
14. Page 184, line 17, insert after "law": "that, while a complaint".
15. Page 184, line 19, change "as" to "is".
16. Page 193, line 21, insert "not necessarily" after "would".
17. Page 196, line 8, change "fact" to "contract".
18. Page 199, line 20, insert "not" before "say".
19. Page 200, line 4, insert "he" after "felt".
20. Page 226, line 9, insert "no" before "contract".
21. Page 235, line 21, change "economic" to "non-economic".
22. Page 240, line 16, change "general specifying" to "specific".
23. Page 248, line 3, change "sign" to "means".
24. Page 259, line 20, change "same" to "contract".
25. Page 259, line 23, change "agreed and liquidation provision" to "agreement
for liquidated damages".
26. Page 262, line 4, change "litigations" to "limitations".
27. Page 264, line 16, change "to produce" to "produced".
Universal Manufacturing Co., Inc . and United Packinghouse,
Food & Allied Workers , AFL-CIO. Cases Nos. 15-CA-2223-2,
15-CA-9223-3, and 15-RC-2631. January 30, 1964
DECISION, ORDER, AND DIRECTION OF SECOND
ELECTION
On October 3, 1963, Trial Examiner Louis Libbin issued his Deci-
sion in the above-entitled proceeding , finding that the Respondent
had engaged in and was engaging in certain unfair labor practices,
recommending that it cease and desist therefrom and take certain
affirmative action, and also recommending that the representation
election held on December 21, 1962, in Case No. 15-RC-2631, be set
aside and a new election held, all as more fully set forth in the at-
tached Trial Examiner 's Decision . He further found that the Re-
spondent had not engaged in certain other unfair labor practices
145 NLRB No. 136.