L-U-C-E Manufacturing Co.

National Labor Relations Board - Board Decisions

Jun 12, 1967

165 N.L.R.B. 288 (N.L.R.B. 1967)

288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
L-U-C-E Manufacturing Company and Kansas
City Luggage and Novelty Workers Union
Local No. 66 affiliated with International
Leather Goods , Plastics & Novelty Workers
Union , AFL-CIO. Cases 17-CA-2702 and
17-CA-2702-2.
June 12, 1967
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On August 3, 1966, Trial Examiner Alba B. Martin
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. He further
found that the Respondent had not engaged in
certain other unfair labor practices alleged in the
complaint. Thereafter, the Respondent and the
General Counsel filed exceptions to the Decision
with supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings made by the
Trial Examiner at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision,' the exceptions and briefs, and
the entire record in this case, and finds merit in
certain of the Respondent's exceptions.
On June 27, 1966, subsequent to the hearing
herein, but before the issuance of the Trial
Examiner's Decision, the Charging Party, the Local
Union, filed a motion with the Trial Examiner for
permission to withdraw the charges in this
proceeding, stating that "the matters in dispute
between the parties have been settled and a renewal
agreement has been executed by authorized
representatives of each party." The International
Union, which participated in the hearing,
participated in "the settlement and renewal
agreement," and joined and consented to this
request for the withdrawal of the charges. The
General Counsel opposes the granting of the motion
to withdraw. The Trial Examiner denied the
Charging Party's motion in his Decision, and
Respondent has excepted to this ruling of the Trial
Examiner.
The record shows that the Respondent and the
Union (the Charging Party) have a bargaining
relationship dating back to 1942. The matters in
dispute between the parties in this proceeding have
been settled, and a renewal agreement has been
executed by authorized representatives of each
party. The parties have thus renewed their
harmonious relationship and have concluded
another contract.
The Board, having duly considered the matter,
and in view of all the circumstances herein,
concludes that the motion to withdraw the charge
should be granted and the complaint herein
dismissed.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
I After the issuance of the Trial Examiner's Decision, the
Respondent on August 17, 1966, filed a motion to reopen the
record, (1) to receive a copy of a May 13, 1966, Supplemental
Agreement between the Respondent and the Kansas City
Luggage & Novelty Workers Union, Local No 66 of the
International Leather Goods, Plastics & Novelty Workers Union,
and (2) to receive and consider evidence with respect to the
Union's health and welfare fund and pension fund to show how
they affected Respondent's duty to bargain with the Union On
August 19, 1966, the General Counsel filed opposition to the
Respondent's motion to reopen the record In view of our
disposition of this case, we find it unnecessary to rule upon this
motion
'T'RIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ALBA B. MARTIN, Trial Examiner: This consolidated
proceeding, with all parties represented by counsel, was
heard before me in Kansas City, Missouri, from January 27
to February 2, 1966, on complaint of the General Counsel
and answer of L-U-C-E Manufacturing Company.' The
issues litigated were whether Respondent violated Section
8(a)(5) and (1) of the National Labor Relations Act, as
amended, 29 U.S.C. Sec. 151, et seq., on June 5, 1965, by
bypassing the Local Union, the certified exclusive
bargaining agent , and bargaining directly with and on
June 6 signing a contract with certain employees rather
than the Local Union; by thereafter refusing to negotiate
and discuss with the Union; and on September 1, 1965, by
unilaterally putting into effect a health and welfare plan
without negotiating it with the Local Union. After the
hearing the General Counsel and Respondent filed briefs,
which have been carefully considered. Several months
after the hearing the Charging Party, the Local Union,
filed a motion for leave to withdraw the charges, stating
that "the matters in dispute between the parties have been
settled and a renewal agreement has been executed by
authorized representatives of each party." The
International Union joined in this motion, and the General
Counsel opposes it. This motion is hereby decided in
accordance with the findings and conclusions herein.
After the hearing the General Counsel filed a motion to
correct the record in certain respects. As the suggested
' The Union filed the charge in Case 17-CA-2702 on June 7,
1965 , and filed the charge in Case 17-CA-2702-2 on
September 30, 1965
165 NLRB No. 35
L-U-C-E MFG. CO.
corrections appear correct to me, and as no party has
objected, the motion is hereby granted. The motion has
been placed in the original exhibit file as Trial Examiner's
Exhibit 1.
Upon the entire record and my observation of the
witnesses, I hereby make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT COMPANY
Respondent, L-U-C-E Manufacturing Company (herein
called Respondent, Respondent Company, L-U-C-E, and
the Company), is a Missouri corporation engaged in the
manufacture of luggage and related items at its plant at
Kansas City, Missouri, its only facility here involved.
Respondent annually receives from points outside the
State of Missouri goods, products, and materials valued in
excess of $50,000 and annually ships to points outside the
State of Missouri goods, products, and materials valued in
excess of $50,000. Respondent is now and has been at all
times material herein an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Kansas City Luggage and Novelty Workers Union Local
No. 66 ( herein called the Local Union and the Union),
affiliated with International Leather Goods , Plastics &
Novelty Workers Union , AFL-CIO (herein called the
International Union and the International ), is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Bargaining History Prior to Bypassing the Union on
June 5-6,1965
The Local Union was certified by the Board in 1942 (42
NLRB 207) as the exclusive bargaining representative for
all production and maintenance employees at
Respondent's Kansas City plant, excluding supervisory
and clerical employees and janitors. There has been no
subsequent certification of any other labor organization,
and ever since the certification the Local Union has been
the duly certified collective-bargaining representative of
all employees in the unit. Since the certification, the Local
Union and Respondent have had a continuing collective-
bargaining relationship which has produced some 15
contracts governing their relationship from 1942 until
December 31,1964.
The Local Union is affiliated with the International
Union named in the caption and is subject to the rules of
the International's constitution. Members of the Local in
their obligation of membership obligate themselves to
obey the rules and regulations of the Local Union and the
' Under "Contract Uniformity" the International constitution
provided for the formulation of a comprehensive policy on
contract uniformity either by "Convention Mandate" or by the
general executive board 'of the International The constitution
provided that the general executive board would implement this
policy through the general officers and that local unions should
submit their contract demands to the International for approval
based upon the International's contract uniformity policy The
constitution granted the general executive board through the
International president in consultation with and approval of the
general officers, authority to grant modification and temporary
relief from enforcement of industry contract uniformity policy to
any local union "which may make such justified request upon
289
constitution of the International.
In the negotiations leading up to the 15 contracts the
Local Union was represented by its business
representative and by a negotiating committee . Usually
the Local was assisted by one or more representatives of
the International Union . Under the constitution of the
International Union , to insure contract uniformity local
unions were to submit their contract proposals and their
negotiating contracts to the International for approval.2
Every contract between the Local and the Company
except the disputed one of June 6, 1965, and possibly
except two earlier ones ,' was signed on behalf of the Union
by its business agent (business manager, business
representative).' In addition all of the contracts between
January 1943, and May 1959, with the exceptions noted in
the footnote, were signed on behalf of the Local by its
president and secretary -treasurer . The contract of
December 18, 1959, was executed for the Local by its vice
president , business representative , and at least two
members of the negotiating committee . The contract of
December 30, 1960 , was executed by the business
representative and at least three members of the
negotiating committee . The contract of December 28,
1962, was signed by the business representative and at
least two members of the negotiating committee . The last
contract, executed December 20, 1963, was signed by the
business representative and at least three members of the
negotiating committee . I conclude from the above and
upon the preponderance of the evidence that up until the
disputed June 6, 1965, contract , both Respondent and the
Local have considered the signature of the Local's
business representative as necessary to the consummation
of a written agreement between them.
The Local customarily consulted its members in the L-
U-C-E plant in the formulation of contract demands, and
for approval of negotiated contracts ; but there was no
evidence that the Local ever delegated its authority to
bargain for the L-U-C-E employees , back to the employees
themselves or some of them or to all or some of the
negotiating committee.
During the 1964-1965 negotiations for a new contract to
succeed the one which expired the last day of 1964, the
parties met some 11 times from November 24, 1964, to
May 18 , 1965. No contract was achieved . The Union was
represented by its business agent and a negotiating
committee of three L-U-C-E employees : Louise Vann (who
was also shop chairman at the L-U-C-E plant and was
elected vice president of the Local in April 1965), Iva
Mitchell , and Martha Wyse. A representative of the
International Union was frequently present . Respondent
was represented by two lawyers, Myron K . Ellison and
John K. Bestor, who for many years had conducted
Respondent 's negotiations and handled its relations with
the Union.
reaching a stalemate in collective bargaining process " The
International constitution provided that each local union shall
submit to the International president and the general officers
each negotiated contract for approval, and that approval would be
granted when the contract negotiated was in conformity with the
foregoing provisions
' Who signed the December 1952 contract was not shown on
the exhibit copy Who signed the December 1954 contract was not
shown on the exhibit copy, but there were lines for the signatures
of the Local's president, secretary-treasurer, and business
representative
' See footnote 3, above
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the 1964-1965 L-U-C-E negotiations strikes
occurred and were settled at the plants of Gateway
Luggage Manufacturing Company, Inc., and Neevel
Luggage Manufacturing Company, Respondent 's principal
competitors in the Kansas City area . As the Local also
represented the employees at Gateway and Neevel, what
was happening at those two firms had an impact on the
bargaining at L-U-C-E. Respondent took the position that
the wage rates at L-U-C-E must not be more than those at
Gateway and Neevel, and reminded the union negotiators
that L-U-C-E was already paying 5 cents an hour more
than Neevel . Once at least , there was discussion as to
whether there should be joint bargaining for all three
companies . The contracts which resulted from the
Gateway and Neevel settlements , provided for 40 hours'
pay for 37- 1/2 hours' work conditioned upon the Union's
winning the same concession from L-U-C-E.
The situation at Scranton , Pennsylvania , also had an
impact upon the 1969-1965 negotiations at Kansas City.
Respondent was owned by Mrs. A. P. Luce, its president.
Her son was president of another corporation , named L-U-
C-E Luggage, Inc., whose plant was in Scranton, That
company was heavily in debt to Mrs. A. P. Luce. The same
attorneys represented both corporations and represented
Respondent before me. The Scranton employees were
represented by another local of the International. The
Scranton employees went on strike June 2, 1965, after the
old contract expired May 31, 1965.
Early in the Kansas City L-U-C-E negotiations, in
January and February 1965, the parties discussed the
possibility of adopting in Kansas City the entire existing
Scranton contract , including the Union ' s health and
welfare plan . Several times during the Kansas City
negotiations , Raymond Dooley , vice president of the
International , and other International officers suggested
joint negotiations for the Kansas City and Scranton plants,
and suggested the possibility of a strike at Kansas City.
Arrangements between Respondent ' s attorney , Ellison,
and the president of the International for a " summit"
meeting in New York to avoid work stoppages at both
plants were all but consummated when the Scranton strike
began; and Respondent's attorney refused to go to New
York.
In a meeting of Kansas City L-U-C-E members on
March 3, 1965, when Dooley was talking to the employees
along the lines of "no contract-no work ," the employees
voted not to strike and to continue the negotiations . Dooley
informed Respondent ' s negotiators of this employee
sentiment.
The different points of view between the International
officers and at least some Kansas City L-U-C-E employees
related at least in part to the so-called "Convention
Mandates ." For several years the International officers
had been advocating two International convention
mandates : the Union ' s health and welfare plan, and 40
hours' pay for 37-1 /2 hours' work. In the 1962-1963
negotiations the Local 's negotiators asked for the 37.1/2•
hour work plan, but not for the health and welfare plan,
although at a meeting L-U-C-E members voted against
asking for either. The members of the negotiating
committee , Pansy Burns, Iva Mitchell, and Martha Wyse,
were against the 37-1/2-hour work plan. The resulting
contract included neither . For some time the International
did not approve the contract and the International
president did not sign it. The Local ' s executive board
retaliated by withholding the per capita payments it owed
the International. Finally an International representative
brought in the contract signed by the International
president and explained that the International's objection
to it was its ommission of the two mandated clauses. The
Local's business agent was expelled from the Union at the
end of 1963.
At the opening session of the 1964-1965 negotiations,
the Local's spokesman, its business representative, Carl
Haley, withdrew from its written demands the 37-1/2-hour
week and the health and welfare plan explaining that they
were convention mandates, but that the Kansas City L-U-
C-E employees did not want them. Other testimony
indicated that the L-U-C-E employees believed that if they
pursued the 37-1/2-hour demand they would end up with
37-1/2 hours of pay for 37-1/2 hours of work, and they did
not want that. As for the International's health and welfare
plan, the Local's spokesman indicated they preferred
another health and welfare plan, which they proposed.
At the third negotiation session, on December 11, 1964,
International Vice President Dooley entered the
negotiations and in substance reinstated the Union's
health and welfare plan and the 37-1 /2-hour-week plan as
union demands in the negotiations. They were discussed
off and on in the negotiations after that
On April 26, 1965, after the L-U-C-E negotiations had
been in progress for some 4 months, the Local's
incumbent business manager, Carl Haley, was defeated
for reelection by Carlos Medina in what was described in
the International's newspaper as a close election. Haley's
defeat may or may not have resulted in some degree from a
divided opinion within the Local as to Haley's position in
the L-U-C-E negotiations concerning the two convention
mandated issues.
At the last negotiation session, prior to the June 5 and 6
bypassing of the Local Union, on May 18, the Union
pressed for wages and working conditions consistent with
those achieved in the Gateway and Neevel 3-year
contracts, each of which included an immediate 7-1/2-
cent-an-hour raise the first year, the International 's health
and welfare plan the second year, and 40 hours' pay for 37-
1/2 hours' work the third year. Respondent's attorneys
presented a written package proposal of 10 items, which
included an immediate 4-cent-hour raise, the Company's
rather than the International's health and welfare plan,
and no clause providing for 37-1/2 hours' work at 40 hours'
pay. The Union rejected the Company's proposals because
of disagreement with the wage structure, the bonus
proposal, the Company's health and welfare plan, and the
disposition of a pending arbitration case. According to the
credited testimony of Carlos Medina, the union
spokesman said the Union would recommend the company
proposals to the L-U-C-E employees only if they were
changed to provide an immediate 7-1/2-cent-raise and the
Union's health and welfare plan. The Company's attorneys
rejected these changes. The Company's attorneys then
stated they would like to have the L-U-C-E employees have
an opportunity to vote on the Company's proposals, and
pressed the union representatives to state when a
"ratification" meeting would be held. The Union's
spokesman said the Union knew its obligations and did not
need Respondent to tell it how to conduct its business.
Nevertheless the parties discussed whether such a
"ratification" meeting would be held that week. Then
there was further discussion about the cost of the
Company's health and welfare plan, and discussion of the
problems involved in the Union's health and welfare plan,
according to the credited testimony of Bestor, On this note
the meeting adjourned. Upon the evidence set forth in this
L-U-C-E MFG. CO.
paragraph and the preponderance of the evidence in the
entire record, I conclude that the June 18 meeting
adjourned with no meeting of the minds and no impasse in
the bargaining.
The following day, one of Respondent's attorneys met
Business Agent Medina at an arbitration meeting and
asked him if he had yet arranged a meeting with the L-U-
C-E employees.
The Union's monthly meeting in May was held on
May 24, but as only five or six L-U-C-E employees
attended, the L-U-C-E proposals were not presented or
discussed.
Medina arranged for a meeting on June 3 to present and
explain the Company's package proposals. At the urging of
Iva Mitchell and Martha Wyse, two members of the
negotiating committee, he was able to arrange to have it
advanced to June 2. This meeting turned out to be a fiasco
because the Union, pursuant to its bylaws and a notice to
L-U-C-E employees, undertook to restrict the meeting to
members in good standing whose dues were paid up. (Dues
had not been checked off since the expiration of the prior
contract at the end of 1964.) This meant that a number of
L-U-C-E employees were turned away at the door, even
though Supervisor Jule Cunningham handed money at the
entrance to some of them to pay their dues. Also, some
Neevel and Gateway employees were present, and some
L-U-C-E employees did not like that. Chaos reigned, the
International representative who was trying to get the
meeting to order was unable to do so, someone called the
police, and the meeting was abandoned.
On June 3, 1965, the Union passed out to L-U-C-E
employees in front of the L-U-C-E plant a handbill reading
as follows:
June 3, 1965
NO CONTRACT...... NO WORK!
TO ALL L-U-C-E MANUFACTURING COMPANY
EMPLOYEES
Gateway and Neevel Luggage contracts have been
signed and settled successfully. These contracts call
for 7-1/2 cents per hour increase in wages, Health &
Welfare and pension retirement coverage, 37 1/2 hour
work week with 40 hours pay.
Your employers have not at any conference offered
as much. They continue to submit tricky offers and an
insurance coverage that is vague. Obviously they are
not bargaining in good faith.
The Company depends upon a small minority of
stooges to keep your shop divided. The time has come
when this minority must be prevented from you
gaining a fair and just settlement similar to the
settlements of Gateway and Neevel, or even better.
The Scranton shop of L-U-C-E is on strike as of
Wednesday, June 2nd, for improved wages and
working conditions, etc. Your fight is theirs and their
fight is yours.
Your International Union is supporting the
Scranton Local 41 strike and will also support the L-
U-C-E workers of Kansas City. Exercise your rights as
good trade unionists and Americans-No contract ...
No Work !
For some years employees had been trying without avail to get
supervisors out of the Local because they lessened the
effectiveness of the Union The only two supervisors with whom
we are here concerned were Mary Archer and Jule Cunningham
291
Fight for a living wage and a good union contract
and union protection.
Sincerely and Fraternally,
K C LUGGAGE & NOVELTY WORKERS
UNION LOCAL NO. 66
Anna Kellerman President
Louise Vann Vice-President
Daisy Allsworth Secretary-Treasurer
Carlos Medina Business Manager
B. Bypassing the Union and Dealing Directly With
Employees
1. The facts
On Saturday morning, July 5 (the plant was working that
day), a leadwoman, Pansy Burns, circulated for signatures
a petition asking for an immediate meeting to learn what
the Company had offered and to vote on it and saying that
if they could not get a meeting they wanted to "dispose of"
the officers of the Local and get new officers who would
give them meetings. Without seeking permission and on
company time without being docked for it, Burns left her
job without reprimand and spent about 1-1/2 hours
circulating the petition. She was assisted by other
leadwomen who had their employees stop work, read the
petition and, in some cases at least, converse with Burns.
Burns circulated the petition on all four production floors
where the approximately 247 employees in the appropriate
unit at work that day worked. The leadwomen had been
covered by the expired contract, and had been members of
the Local. They, or most of them including Pansy Burns,
had been in arrears in their union dues since the cessation
of the checkoff with the expiration of the last contract, and
under the constitution of the International (article XIII,
sec. 6), were in a state of automatic suspension from
membership. That Respondent knew and approved what
Burns and the other leadwomen were doing follows from
the fact that simultaneously that morning Jane Luce
telephoned Respondent's attorney, Bestor, and told him
the employees were circulating a petition. Further, it is
inconceivable that Supervisor Mary Archer, who was over
Burns and in charge of her floor, did not miss her for 1-1/2
hours and did not know what she was doing. Particularly is
this so since a few days before, on May 26, Archer had
herself participated with two members of the Union's
negotiating committee (Wyse and Mitchell) in trying to get
an early union meeting; and since Archer attended the
meeting of employees that Saturday afternoon, June 5.
Supervisor Archer was herself a suspended member of the
Local because her dues were in arrears.'
Lunchtime consisted of one-hour free time beginning at
11:30 a.m. At lunchtime on June 5, Pansy Burns and two
members of the negotiating committee, Iva Mitchell and
Martha Wyse, were absent from the plant for about 1-1/2
hours while they drove to the home of the president of the
Local and back to try to get a union meeting set for that
afternoon. They left about 11:30 and returned just a few
minutes before the meeting held that afternoon at 1:30.
Although Supervisor Jule Cunningham knew where and
why they went, they were not docked for the time beyond
the one-hour lunchtime that they were away. Cunningham
On June 17, 1965, after the June 5-6 events, the Local wrote
Cunningham that "because of your supervisory status you are
ineligible for membership in our Union and we are hereby
terminating your membership "
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
knew because Mitchell had asked Cunningham's
permission for the three of them to go to see the president
of the Local, Anna Kellerman, to see if she would hold a
meeting.
The three asked the president of the Local, Anna
Kellerman, to call a special union meeting for L-U-C-E
employees, which the Local's bylaws permitted the
president to do upon written petition by seven members in
good standing. Kellerman credibly testified that in her 24
years as a member of the Local she did not recall any
occasion when a meeting had been called on the spur of
the moment. She explained that because of a funeral she
could not be present at a meeting that afternoon; she did
not object to their holding a meeting, although the Local's
rules provided that-the president or vice president "shall"
preside over all meetings of the Local. According to
Kellerman's credible and credited testimony, Kellerman
offered to call Business Manager Carlos Medina for them
and they told her not to, saying that they wanted "no part
of Carlos." The three left Kellerman without any
arrangements for the meeting having been made.
Burns, Mitchell, and Wyse returned to the plant,
immediately asked and received permission of Jane Luce
to hold a meeting in the company cafeteria to see if the
employees would accept the Company's proposed
contract. Burns gave the petition to Jane Luce and told her
to read it. Jane Luce was the daughter of Mrs. A. P. Luce,
president of Respondent. Jane Luce, a woman in her 40's,
was looked upon by the employees as an important
member of management from whom they received orders.
According to Respondent's attorney who has done
business with her since about 1952, Jane's duties "are
kind of what she makes them." The entire record proved,
and I conclude, that Jane Luce was an agent of
Respondent.
Then, at 1:30, shortly after the return from Kellerman's
house, the meeting was held on company time in the
company cafeteria. The leadwomen on the various
production lines told employees to turn off their machines
and go to a meeting in the cafeteria. Although most of the
employees working that day attended the meeting, Louise
Vann, the vice president of the Local, shop chairman at
the L-U-C-E plant, and member of the negotiating
committee, was not invited to attend and did not attend.
Supervisors Archer and Cunningham attended the
meeting. The meeting was attended by employees who
were delinquent in their dues to the Union and under the
Union's bylaws automatically suspended. Some of the
employees present were new employees who had not yet
joined the Union. No officer of the Local was invited or
attended. The president did not call the meeting. The
president or vice president of the Local did not preside,
which the bylaws of the Local provided they should do if
this was a meeting of the Local. Wyse, Mitchell, and Burns
were up front. Wyse opened the meeting by stating the
meeting was about the Company's proposal. Pansy Burns,
a former officer of the Union and former member of the
negotiating committee, but then holding no office or
function with the Union, rapidly and in a soft voice read off
the Company's 1-page package proposal. Wyse asked if
there were any questions. The only question raised was
whether this was a legal meeting. Burns replied that it
was. There was no discussion of the proposals. A standing
vote was taken and the proposals were approved by a large
margin. Someone asked if the contract had to be signed by
the business manager to be legal. Burns replied in the
negative. The group approved a resolution to the effect
that the Local's executive board was not to interfere with
the contract.
After the meeting, which lasted about 15 minutes, the
employees returned to their work. Burns then informed
Jane Luce that the employees had accepted the
Company's proposal and asked her what was to be done
next. Jane Luce telephoned one of the Company's
attorneys, Bestor, told him that "the employees" (not the
Union or the employees who were members of the Union)
had "ratified" the company proposal, that they wanted to
know if a contract could be drawn up, and that they were
concerned about the possibility of pickets at the plant the
following Monday, June 7. The Company's attorney
drafted a contract that afternoon, as though it were a
contract between the Company and the Local, although he
knew from recent bargaining history and the May 18
meeting that the leadership of neither the Local, who
spoke for the Local in negotiations, nor the International,
approved this May 18 package proposal. The document he
prepared was executed the following morning, Sunday,
June 6. It was signed for the Company by Mrs. A. P. Luce;
and, purporting to act for the Local, by Iva Mitchell and
Martha Wyse of the Local's negotiating committee,
Germaine Glaze, one of eight members of the Local's
executive board, and by Pansy Burns, who had no office or
function with the Local. Burns signed at the suggestion of
Attorney Bestor, since she had participated in getting it
"ratified." Louise Vann, the third member of the Local's
negotiating committee, was not asked to sign the contract,
nor was Medina, the business agent, nor were any officers
of the Local, including the president and secretary-
treasurer, who for many years had signed the contracts for
the Local.
Sunday afternoon, helped in drafting by Attorney Bestor
and presumably Jane Luce, Respondent sent the Local's
business agent, Carlos Medina, a telegram reading as
follows:
We understand that you propose to place pickets at
our plant Monday, June 7. This is to advise you that at
a meeting of the members of your Union employed by
L-U-C-E the Company's offer of May 18 was ratified
by a vote of 200 in favor of the proposal, 5 against.
Following the ratification a contract was executed by
Mrs. Luce for the Company and by a majority of the
negotiating committee and all members of the
executive board for the Union.6 Further we
understand that the L-U-C-E employees at this
meeting passed a resolution directing you not to
attempt to strike or picket this plant. Any strike or
picketing action by the Union during the term of our
contract with Local No. 66 will violate that contract
and will force us to seek our remedies in court against
you and Local No. 66.
Sunday afternoon Respondent also sent the Local's
president a telegram to the same effect.
On Saturday afternoon Pansy Burns telephoned the
president of the International Union in New York City, and
told him that "we have a contract" and in substance "a
meeting" had ratified it; that she was calling him to
s Attorney Bestor credibly testified that the telegram as
composed said "a" member of the executive board instead of "all
members "
L-U-C-E MFG. CO. 293
prevent pickets from picketing the place on Monday
morning. The president of the International said only that
he would contact the Local.
A union handbill over Medina's signature was written
after his receipt of the above telegram and it was
distributed to L-U-C-E employees on Monday, June 7. This
handbill claimed the June 5 meeting was not a bona fide
union meeting, not called under union rules and
regulations, and not binding on anyone. It referred to it as
a captive meeting on company property under company
auspices.
On June 21, Respondent forwarded to the Union dues
checked off pursuant to the June 5 "contract."
Respondent's covering letter indicated Respondent knew
the Union contended the "contract" was not valid The
Union returned the check with a June 28 covering letter
reading as follows:
This is to advise you that your letter of June 21,
1965, has been received and is being treated as the
self-serving document it is. Your so-called "contract"
is a nullity and if the remittance of check-off is
conditioned upon recognizing an invalid instrument
then, of course, I have no choice but to return your
check to you.
Your letter is merely further evidence of the unfair
labor practices you have been engaged in.
Since this letter, Respondent has regularly forwarded
checks for checked-off dues money to the Union and the
Union has regularly returned them to Respondent.
At all times between the filing of the original charge on
June 7, 1965, and the hearing some 7 months later, the
Union always contended the resulting "contract" was not
a contract with it and was an unfair labor practice.
The Union brought charges against Wyse and Glaze for
signing the "contract" and bypassing the Union. They
were expelled from the Local for failing to appear before a
committee.
2. Analysis, Respondent's defenses, and conclusions
On June 5 and 6, 1965, the Local Union was the
exclusive bargaining agent of the employees in the
certified appropriate unit. Until those days, Respondent
had been negotiating with the Union's official
representatives: its business agents, its three-member
negotiating committee, and representatives of the
International Union.
On June 5 and 6, Respondent took advantage of divided
sentiment within the Local and within the negotiating
committee concerning local support for the International's
convention mandates, which presumably had been
adopted as bargaining goals at one or more countrywide
conventions. Respondent assisted those employees who
were against the convention mandates by knowingly
permitting them to circulate and have employees sign a
petition on company time and property, by permitting
them to hold a meeting of company employees on company
time and property, and by permitting three employees to
be absent for 1-1/2 hours on company time to arrange for
the meeting. As Respondent's attorneys knew, Pansy
Burns, who took the strongest initiative to bring the
meeting about, then held no office or position in the Local
and was not acting for the Local. She spent about 2-3/4
hours of company time on June 5 soliciting signatures on
the petition, visiting Kellerman's house, and at the
meeting.
The June 5 meeting was clearly not a meeting of the
Local, as Respondent well knew. It was not called or
presided over by the Local's president. President
Kellerman's alleged remark, to the three who visited her,
"you kids go ahead and have your little meeting, you have
to live with it," did not make the meeting a union meeting.
It was not called as a meeting of the Local, or even of L-
U-C-E employees who were members of the Local. It was
called for all L-U-C-E employees, including those who had
never joined the Local and those who were automatically
suspended but in arrears in their dues. If the meeting had
been called as a meeting of the Local or as a meeting of the
L-U-C-E employees who were members in good standing
of the Local surely Louise Vann, a L-U-C-E employee and
shop chairman, vice president, and a member of the
negotiating committee of the Local, would have been
informed the meeting was going to occur. She was not
informed. Nor was any other officer of the Local, nor the
business agent, Medina, told of the meeting or invited to it.
Several witnesses testified that Burns read the
proposals in a soft voice and too rapidly and that they did
not understand what she read. There was no explanation
of the meaning of the company proposals, no discussion of
their merits, and no real opportunity for free expression of
employee sentiment. It was a captive meeting with a
captive audience acting like captives. Under the
circumstances, as an accurate expression of employee
sentiment on the negotiation issues, the vote was
meaningless.
The contract of June 6 was a contract with four
employees in violation of Respondent' s legal obligation to
bargain and contract with only the exclusive bargaining
agent, the Union.' It was not a contract with the Union
because there was no meeting of the minds at the
bargaining table between the Respondent and the Union.
The negotiation session of May 18, the last session before
execution of the June 6 contract, did not end with a
meeting of the minds, and Respondent knew from the
entire course of the negotiations that no agreement had
been reached. So that On June 5 there was nothing to
ratify. As the contract was not a contract with the
exclusive bargaining agent, it was a contract with four
employees who represented nobody, and was legally a
nullity.
Additional evidence that the June 6 contract was not a
contract with the Local was the fact that there was no line
on it for the signature of the Local's business agent, whose
signatures had appeared on every previous contract. This
time the employee promoters of the contract wanted "no
part of" the business agent obviously in favor of the
convention mandates who only 6 weeks before had
defeated in what was described as a close election the
incumbent business agent who had withdrawn the
convention mandates at the first bargaining session.
Additional evidence that Respondent knew its June 6
contract was not with the Local is the fact that
Respondent found it necessary to send telegrams to the
Local's president and business agent telling them the
contract had been "ratified." If the contract had really
been with the Local, surely the Company could have
assumed that the Local 's agents who negotiated it would
Medo Photo Supply Corporation v N.L.R B, 321 U S. 678, National Licorice Co., 104 F 2d 655 (C.A 2); The Arundet
Quaker State Oil Refining Corporation v N L R B , 270 F 2d 40, Corporation , 59 NLRB 505
46 (C.A. 3). Cf J I Case Co v N .L R B , 321 U S . 332, N L.R.B v
299-352 0-70-20
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inform such important local officials as the president and
business agent about it.
That Respondent intended to bypass the Local's
authority as exclusive bargaining agent and force the
Local to accept the Company's proposals which did not
include the convention mandates is further shown by the
facts that when immediately the Union protested
Respondent's actions in the June 7 handbill, the filing and
serving upon Respondent of the charge on June 7, and the
Local's June 28 letter to Respondent, the latter made no
move to undo its unlawful actions of June 5 and 6.
The General Counsel urged as additional proof that
Respondent bypassed the Local on July 5 and 6, the
alleged fact that the leadwomen, Pansy Burns and others,
were supervisors and were therefore working in the
interest of Respondent. Upon the entire record I find it is
not necessary to resolve this question in order to resolve
this proceeding The record contained some, though not
necessarily conclusive, indication that they were
supervisors within the meaning of the Act. On the other
hand, it would not necessarily follow that, even so, they
were working solely in the interest of Respondent on July 5
and 6, since for many years they had been members of the
Union, and as, since 1945, they had been specifically
included in the coverage of the several contracts between
the Union and the Company. Also, during the first half of
1965, when they were delinquent in their dues, the Union
sought to collect the dues by writing the Company that if
they were not paid up the Union would request the
discharge of the delinquents.
Respondent contended it was justified in what it did in
order to prevent a strike or picketing at its plant beginning
on Monday, June 7. If a strike had occurred it would have
been a primary strike to accomplish economic ends. Under
the Act, employees had a right to engage in such a strike
and there was nothing unlawful in the Local's or the
International's efforts to bring it about. The fact that a
possible strike was "in the wind" did not justify
Respondent in bypassing the exclusive bargaining agent.
In fact, the record established that neither a strike nor
picketing was planned for the L-U-C-E plant for the
following Monday or for any day. Under all the
circumstances a legal strike was a possibility some time in
the future, but this fact did not justify Respondent's
actions. The International's or the Local's potential resort
to a legal economic tool did not justify Respondent in
exploiting a division within the Local and the Local's
leadership and in bypassing the Union.
Respondent contended the General Counsel did not
sustain his burden of proof as to what was the appropriate
unit. The General Counsel showed that the Union was the
certified bargaining agent and that since the certification
the parties have negotiated many contracts and had a
continuous collective-bargaining relationship up until the
challenged events on June 5 and 6, 1965. Insofar as the
record showed, during the 1964-1965 negotiations
Respondent did not question the Union's representation of
a majority of the employees in an appropriate unit. There
was no evidence that Respondent had a good-faith doubt
as to the Union's representation of a majority of the
employees in an appropriate unit. Under all the
circumstances of this proceeding I hold that the General
Counsel has sustained his burden of proof as to the
appropriate unit and that Respondent had no good-faith
doubt concerning the Union being the exclusive bargaining
agent of the employees in the appropriate unit. The
appropriate unit was the one certified by the Board: all
production and maintenance employees, excluding
supervisory and clerical employees and janitors.
Respondent contended that it cannot be held to have
refused to bargain with the Union because the Union was
engaging in activity proscribed by the antitrust laws.
Respondent contended that the strike-settlement
agreements between the Union and Gateway and Neevel,
which were conditioned upon the Union's winning the
same 37-1/2-hour concession from L-U-C-E, were in
violation of the antitrust laws, citing Penntngton,8 and that
Respondent cannot be held to have refused to bargain
because the Union was refusing to bargain in good faith by
bargaining to an impasse in an attempt to implement its
violation of the antitrust laws. This defense is not valid for
several reasons. Firstly, as has been found above, the
Union did not bargain to impasse over the 37-1/2-hour
clause. At the May 18 meeting, the last negotiation session
prior to the bypass, the Union's spokesman, Hayes, said
the Union would submit the Company's package proposal
to the union membership if two certain changes were
made, and these changes did not relate to the 37-1/2-hour
clause which the Company's proposal did not include.
Thus, at this point in the negotiations, the Union waived
the 37-1/2-hour clause, at least for the time being. In the
second place, Respondent conceded that it had not filed
an antitrust suit because it could not prove any damages.
In the third place, this is not the appropriate forum to try
an antitrust suit.
Respondent contended it cannot be held to have refused
to bargain with the Union because the Union bargained in
bad faith by insisting, as a condition precedent to an
agreement, on the inclusion of the Union's health and
welfare plan, which was an unlawful plan. This defense is
not well taken There is no evidence that during the
negotiations Respondent ever claimed to the Union that its
health and welfare plan was illegal. This must have been
an afterthought worked up in defense of this case. During
the negotiations Respondent was objecting to the union
plan on the merits, on the ground that it spread the
benefits too thin. If Respondent had continued
negotiating with the Union instead of bypassing it, it is
possible that in the end the parties could have achieved a
meeting of the minds on a health and welfare plan. As to
the alleged illegality of the Union's plan, Respondent
asserts that it is illegal under Section 302 of the Act.
Respondent sought, vainly, to prove that alleged illegality
here, although Section 302(e) of the Act grants to the
Federal District Courts jurisdiction to restrain violations of
that Section.
Respondent contended it cannot be held to have refused
to bargain with the Union because the Union bargained in
bad faith by manipulating for bargaining on a
multiemployer basis rather than for the single Kansas City
plant. Respondent contended that the Union sought to
bargain for the Gateway and Neevel units and also the
Scranton plant, as well as the Kansas City plant. This
defense also is without merit. In seeking to gain what it
considered to be better wages and working conditions for
the employees of the Kansas City plant, the Union was
seeking to use whatever assistance it could find from its
situations at the other three plants. Respondent's
attorneys were not attorneys for Gateway or Neevel, and
both they and the Union knew they were negotiating only
s United Mine Workers v Pennington, 381 U S 657
L-U-C-E MFG. CO.
for the wages and working conditions of the employees at
the Kansas City plant.
Respondent offered numerous other contentions and
several other defenses, all of which have been carefully
considered and which I find to be without merit in defense
to the bypassing allegations of the complaint.
Upon the above considerations, the preponderance of
the evidence, and the entire record considered as a whole,
I hold that on June 5 and 6, 1965, by bypassing the
certified exclusive bargaining agent and negotiating
directly with employees; by assisting a few employees in
trying to get employee approval of Respondent's
bargaining proposals; and by executing the contract with a
few employees who did not have and who Respondent
knew did not have authority from the Local to enter into
such contract; Respondent refused to bargain collectively
with the Union and interfered with, restrained, and
coerced employees in violation of the rights guaranteed in
Section 7 of the Act, Respondent thereby violating Section
8(a)(5) and (1) of the Act.
C. Unilaterally Instituting a Health and Welfare Plan
Respondent 's June 6 "agreement" with employees
contained a health and welfare program which was to
become effective on January 1, 1966. On August 24, 1965,
Respondent wrote Business Manager Medina of the Local,
referred to the "agreement " as being with the Local, and
said Respondent wished to discuss with the Local the
feasibility of advancing the effective date to September 1,
1965. This was Respondent 's answer to a union letter of
August 9, 1965, to some of its members who were L-U-C-E
employees , saying that as the Union considered the
"agreement" a nullity the Union was refusing to accept the
dues moneys Respondent was checking off from the
employees ' pay and forwarding to the Union ; that under
the International 's constitution those in arrears more than
2 months were automatically suspended from union
membership ; and that suspension canceled any rights or
benefits the suspended employee may have had under an
insurance policy the-Union had covering its members. The
union letter urged employees to pay up their dues, and
stated that the executive board of the Local had decided to
keep the insurance in force until August 31, 1965, in order
to give employees an opportunity to pay their dues and
establish their good - standing membership by that date
On August 27, Medina replied to Respondent's
August 24 letter saying the Local would meet with
Respondent , that he had been unable to contact the
Local's attorney , Manning, who was out of town , that "if I
can contact Mr. Manning by Monday , August 30, we will
contact you for an early appointment ." Medina's letter
observed that if they did not arrive at an agreement before
September 1, "there is no reason why it cannot be made
retroactive to September 1. . ." Medina stated also that
his letter was without prejudice to any rights and that the
Union preserved its right to insist upon Respondent's
negotiating an "authorized Union agreement."
On August 31, Respondent 's attorney wrote Medina as
follows:
We did not hear from you on Monday , August 30 as
you promised in your letter of August 27 and we
endeavored to reach you by telephone today since, as
we stated in our letter of August 24, the Company
wanted to place the insurance benefits into effect on
the first of September . However , your office told us
you were away and would not be back the rest of the
295
day. In your letter of August 27 you mentioned that if
we do not arrive at an agreement with respect to the
insurance program before September 1 "there is no
reason why it cannot be made retroactive to
September 1 (or earlier if mutually satisfactory)." We
find that insurance companies do not write health and
welfare insurance on a retroactive basis and the only
way the L-U-C-E employees can have the benefit of an
insurance program on September 1, 1965, is for the
company to commit itself to the payment of the
premium for that coverage today. Knowing that you
and your organization would not wish to stand in the
way of your members receiving any additional
benefits which might be afforded them by their
employer, we feel confident that you would not object
to the company going ahead with instructions to the
insurance company to put this health and welfare
program into effect as of 12:01 a.m , September 1st.
We fully appreciate, as you pointed out in your letter
of August 27, that you and your organization do not
want to prejudice any of your rights, positions or
prerogatives. Consequently, without prejudicing any
of your rights, positions or prerogatives, the company
has arranged for California Western States Life
Insurance Company to place into effect the life
insurance benefits and accidental death and
dismemberment benefit portions of the health and
welfare program effective tomorrow, September 1,
1965, instead of January 1, 1966, as originally agreed
upon.
We want you to know that we are still ready and
willing to discuss this matter with you and your
negotiating committee and we shall appreciate it if
you will let me know when you and your committee
will be available for a meeting.
Respondent caused the insurance to go into effect, as set
forth in its letter, and it went into effect on September 1.
It is clear from the above facts, and I find, that
Respondent placed the insurance into effect on
September 1, unilaterally and without giving the Union a
reasonable opportunity to discuss the riatter first.
Respondent first advised the Union of its desirb to advance
the effective date only 1 week ahead of that effective date,
which in view of its strained relationship with the Union
was not sufficient to be reasonable. Respondent's
misinterpretation or misquotation of Medina's letter as a
promise which he allegedly had not kept did not make
Respondent's position any more tenable. Respondent's
placing the insurance into effect without giving the
certified exclusive bargaining agent a reasonable
opportunity to meet and discuss the matter was a
unilateral changing of wages and working conditions and a
further refusal to bargain with the Union, Respondent
thereby further violating Section 8(a)(5) and (1) of the Act.
D. Alleged Refusal to Discuss and Negotiate With Union
Since June 6,1965
The complaint alleged that since June 6, 1965,
Respondent has refused and continues to refuse to
negotiate and discuss with the Union. On September 16,
1965, Respondent met and discussed with representatives
of the Local Union and representatives of the International
Union the health and welfare plan then in effect by virtue
of Respondent 's unilateral action , and also the Union's
health and welfare plan. It cannot be found upon this
record that upon this occasion Respondent refused to
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
negotiate with the Union. On the preponderance of the
evidence, I do not find that at all times since June 6, 1965,
Respondent has refused to discuss and negotiate with the
Union.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent set forth in section I, above, have a close,
intimate, and substantial relationship 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
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act.
On June 27, 1966, the Charging Party, the Local Union,
filed with me a motion for permission to withdraw the
charges in this proceeding, stating that "the matters in
dispute between the parties have been settled and a
renewal agreement has been executed by authorized
representatives of each party." The International Union,
which participated in the hearing, filed a document stating
that it participated in "the settlement and renewal
agreement," and that it joined and consented to the
request for withdrawal of the charges. The General
Counsel opposes the granting of the motion to withdraw.
As all parties have indicated that since the hearing the
parties have signed a new collective agreement, I accept
that as a fact; and hold that as the parties have now
bargained to a contract a bargaining order is not necessary
as a part of the remedy.
Remaining unremedied is Respondent's bypassing of
the Union in June 1965, and its unilateral action in August.
These were not technical violations but were serious
violations having a vital impact upon employee rights and
which should not be left unremedied. Respondent should
therefore be required to post an appropriate notice. In
view of these unremedied violations I hereby deny the
motions to withdraw the charges.9 As Respondent's
unilateral action consisted of granting employees life
s The motions are denied for the reason that the purposes of the
Act will not be effectuated without the findings of statutory
insurance and accidental death and dismemberment
benefits at no cost to employees, I shall not order, as
requested by the General Counsel in his brief, that
Respondent rescind that action. Nothing herein requires
Respondent to rescind that action. As no party has
recommended any remedy concerning the checked-off
dues being held in escrow, I make no recommendation
concerning them.
Upon the basis of the foregoing findings of fact, and the
entire record in the case, I hereby make the following:
CONCLUSIONS OF LAW
1. L-U-C-E Manufacturing Company is engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. Kansas City Luggage and Novelty Workers Union
Local No. 66 affiliated with International Leather Goods,
Plastics & Novelty Workers Union, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
3. On June 5 and 6, 1965, by bypassing the certified
exclusive bargaining agent and negotiating directly with
employees in negotiating a contract; by assisting a few
employees in trying to get general employee approval of
Respondent's bargaining proposals; and by executing a
collective agreement with a few employees who did not
have and who Respondent knew did not have authority
from the Local to enter into such agreement; Respondent
refused to bargain collectively with the Union and
interfered with, restrained, and coerced employees in
violation of the rights guaranteed in Section 7 of the Act,
and thereby has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of
the Act.
4. By unilaterally placing employee insurance benefits
into effect on September 1, 1965, without giving the
certified exclusive bargaining agent, the Union, a
reasonable opportunity to meet and discuss the matter,
Respondent further refused to bargain with the Union and
thereby has further engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(5) and
(1) of the Act.
5. The aforesaid labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
violation herein made and without the remedial order herein
recommended.
I