Sheet Metal Workers Union, Local No. 65

National Labor Relations Board - Board Decisions

Jun 27, 1958

120 N.L.R.B. 1678 (N.L.R.B. 1958)

1678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Arlington Ave., East Orange, New Jersey, and at its warehouse located
in the Evans Terminal Building, Hillside, New Jersey; also at the.
Triangle Radio Tubes, Inc., at Arlington Ave., East Orange, New.
Jersey, but excluding office clerical employees, plant clerical em-
ployees, professional employees, executives, technical employees,
watchmen, guards, and all supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
Sheet Metal Workers Union , Local No. 65, AFL-CIO and Inland
Steel Products Company. Case No. 8-CB-213. June 27,1958
DECISION AND ORDER
On December 30, 1957, Trial Examiner Louis Plost issued his Inter-
mediate Report 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 copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief, and
the Charging Party filed a brief in support of the Intermediate.
Report.'
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Bean, and Fanning].
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 Intermedi-
ate Report, the exception, briefs, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner with the modifications noted below.
1. We agree with the Trial Examiner that the Respondent violated.
Section 8 (b) (3) of the Act when its representative, Desch, refused
on October 15, 1956, to sign the collective-bargaining contract whose
terms had been finally agreed upon on September 11, 1956.
We see no reason to overrule the Trial Examiner's credibility find-
ings. His extensive analysis of the testimony of the Company's and
the Respondent's witnesses amply bears out his conclusion that the
Respondent's negotiators acted as if they had full authority to reach
and execute a binding agreement, and exercised their apparent au-
thority during the 1956 bargaining in the manner displayed during
1 As the record, exceptions, and briefs adequately present the issues and positions of
the parties, the Respondent's request for oral argument is hereby denied.
120 NLRB No. 216.
SHEET METAL WORKERS UNION, LOCAL-NO. 65 1679
the 1954 and 1955 course of negotiations. In attacking the Trial
Examiner's credibility findings, the Respondent points to the fact
that Local 65 adopted bylaws in November 1955, empowering its
executive board to act as a negotiating committee, and requiring that
all agreements be submitted to the Respondent's membership for
approval before being signed. It urges that the Trial. Examiner's
failure to consider the effect of these bylaws on the authority of its
business representatives to conclude binding agreements has vitiated
his credibility findings. It is not at all clear whether this provision
of the bylaws represented a modification of the Respondent's bargain
ing procedures or was merely a written codification of its past prac-
tice; nor is it clear whether the provision was intended to apply to,
bargaining between the Respondent and the small number of so-
called manufacturing employers, of whom the Company was one, or
only to the multiemployer associations in the construction industry
with whom the Respondent had more extensive dealings. But what-
ever the 1955 bylaws were meant to accomplish, we are satisfied that
the Trial Examiner was correct in concluding that Desch and his
fellow negotiators did not alert the Company to the possibility that
their right to bind the Respondent had been diminished.
2. Four months after the Respondent refused to honor the agree-
ment which Desch had concluded, it notified the Company that it had
abandoned its claim to represent the unit for which it had been certi-
fied, and requested the return of its union label. The Respondent
took this step, although the employees in the unit had not repudiated
it, in order to extricate itself from its bargain with the Company.
The Respondent's unlawful refusal to sign the agreement is not ex-
cused by its subsequent abandonment of its representative status, and
the violation committed still remains to be remedied.
THE REMEDY
The Trial Examiner recommended that the Board order the Re-
spondent to execute the agreement which the Company had reduced
to writing, upon Desch's approval of all its terms, but with a new-
termination date of 2 years from the date of execution, instead of the
original termination date of July 17, 1958. Such an order would
impose upon the Respondent and the employees in the unit a contract
for 4 years rather than the 2 years originally agreed upon. As the
Company has put into effect the provisions of the 1956 contract,
thereby carrying out its part of the agreement, we believe that no
purpose would be served by extending the contract for an additional
2-year period. We shall therefore only provide that the Respondent_
sign the 1956 agreement with the July 17, 1958, termination date, if
the Company so desires; and, upon the Company's request, bargain
1680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with it for a new agreement, and if an understanding is reached,
embody such understanding in a signed agreement.
ORDER
Upon the entire record in this case , and pursuant to Section 10
(c) of the National Labor Relations Act, the National Labor Re-
lations Board hereby orders that Respondent Sheet Metal `Yorkers
Union, Local No. 65, AFL-CIO, its officers, agents, successors, and
assigns shall:
(1) Cease and desist from :
(a) Refusing, if requested to do so by the Company, to execute
the written agreement tendered to it by the Company on October
15, 1956, and effective to July 17, 1958, and refusing to bargain col-
lectively with the Company, as the representative of the employees in
the unit for which it was certified and, if an understanding is reached,
embody such understanding in a signed agreement.
- (2) Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) If requested to do so by the Company, forthwith sign the
agreement tendered to it by the Company on October 15, 1956, to be
effective to July 17, 1958, and, upon request, bargain collectively
with the Company as the exclusive bargaining representative of the
employees in the unit for which it was certified, and if an under-
standing is reached, embody such understanding in a signed agreement.
(b) Post at its offices and meeting halls copies of the notice attached.
hereto marked "Appendix."' Copies of said notice, to be furnished
by the Regional Director for the Eighth Region, shall, after being
duly signed by the Respondent's representatives, be posted by it
immediately upon receipt thereof, and be maintained by it for sixty
(60) consecutive days thereafter in conspicuous places, including all
places where notices to members of Respondent are customarily posted.
Reasonable steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(c) Mail to the Regional Director for the Eighth Region signed
copies of the notice attached hereto marked "Appendix," for posting
at the premises of Inland Steel Products Company, the Company
willing, for sixty (60) consecutive days, in places where notices to
employees are customarily posted.
(d) Notify the Regional Director in writing, within ten (10) days
from the date of this Decision and Order, what steps the Respondent
has taken to comply herewith.
2 In the event that this Order is enforced by a decree of a United States Court of Ap-
peals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
SHEET METAL WORKERS UNION, LOCAL NO. 65 1681
APPENDIX
NoT:CE TO ALL MEMBERS OF SHEET METAL WORKERS UNION, LOCAL
No. 65, AFL-CIO
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify you that :
WE WILL, if requested to do so by Inland Steel Products Com-
pany, sign and execute the agreement tendered to us by said
Company on October 15, 1956, effective to July 17, 1958, and we
will, upon request bargain collectively with the aforesaid Com-
pany as the exclusive bargaining representative of the employees
in the unit for which we have been certified, and if an under-
standing is reached, embody such understanding in a signed
agreement.
SHEET METAL WORKERS UNION, LOCAL
No. 65, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
It having been charged by Inland Steel Products Company, herein called the
Company , that Sheet Metal Workers Union, Local No. 65 , AFL-CIO, herein called
Local 65 , had engaged in and is now engaging in certain unfair labor practices affect-
ing commerce as set forth and defined in the Labor Management Relations Act, 1947,
herein called the Act, the General Counsel of the National Labor Relations Board,
herein called the Board , on behalf of said Board , by the Regional Director for the
Eighth Region , issued a complaint alleging that Local No. 65 was engaging in conduct
violative of Section 8 (b) (3) of Section 2 (6) and ( 7) of the Act.' With respect to
the unfair labor practices the complaint alleged that:
At all times since July 15, 1953 , the Respondent [Local No . 65] has been
the representative for the purposes of collective bargaining of a majority of the
employees in an appropriate unit , and by virtue of Section 9 (a) of the Act
has been , and is now, the exclusive bargaining representative of all the em-
ployees in said unit for the purposes of collective bargaining in respect to rates
of pay , wages, hours of employment, or other conditions of employment.
The complaint further alleges that "on or about October 15, 1956 , and at all times
thereafter, Respondent [ Local No . 65] did refuse and continues to refuse , to execute
[an] agreed upon collective bargaining agreement " fully negotiated and agreed
upon in all its terms by the Company and Local No. 65 and covering only the em-
ployees in the aforesaid appropriate bargaining unit.
1 Section 8 ( b) (3) of the Act makes it an unfair labor practice on the part of a union
"to refuse to bargain collectively with an employer , provided it is the representative of
his employees subject to the provisions of Section 9 (a)."
483142-59-vol. 120-107
1682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local No. 65 duly filed an answer denying that it had engaged in any of the
alleged unfair labor practices?
Pursuant to notice a hearing was held before Louis Plost, the Trial Examiner, at
Cleveland, Ohio, October 29 and 30, 1957. The General Counsel, Local No. 65, and
the Company were represented by counsel, all being herein referred to in the names
of their principals. The parties participated in the hearing and were afforded full
opportunity to be heard, to examine and cross-examine witnesses, to introduce evi-
dence bearing upon the issues, to argue orally, and to file briefs and/or proposed
findings of fact and conclusions of law with the Trial Examiner.
The General Counsel and Local No. 65 argued orally on the record, and the
Company waived its right to present an argument. A brief has been received from
the Company.
The Trial Examiner denied motions by Local No. 65 to dismiss the complaint.
After the close of the hearing the parties stipulated that an exhibit 3 inadvertently
not offered be received. The exhibit is hereby received.
Upon the entire record in the case, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE CHARGING PARTY, INLAND STEEL PRODUCTS COMPANY
Inland Steel Products Company is, and has been at all times material herein, a
Delaware corporation with its principal office at Milwaukee, Wisconsin, and is en-
gaged in the manufacture, sale, and distribution of metal fabricated building sup-
plies, with plants located in various States of the United States, including Cleveland,
Ohio.
The Company has annually shipped finished products from its Cleveland, Ohio,
plant to points directly outside the State of Ohio valued in excess of $125,000.
Only the Company's Cleveland plant is involved in these proceedings.
II. THE ORGANIZATION INVOLVED
Sheet Metal Workers Union , Local No. 65, AFL-CIO, is a labor organization
within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Refusal to bargain
1. The appropriate unit and the representation of Local No. 65 therein
There is no dispute that following a Board-conducted election among certain of
'the Company's employees in its Cleveland, Ohio, plant designated as a unit appro-
priate for, the purposes of collective bargaining within the meaning of Section 9 (b)
of the Act and more particularly described as:
All hourly-rated manufacturing employees at the Company's Cleveland branch,
excluding all warehouse employees (including shipping-receiving and mainte-
nance employees), truckdrivers, office and clerical employees, and all supervisory
employees as defined in the Act.
Local No. 65 was certified as the representative of said unit of employees on July
15, 1953, and has since 1954 contracted with the Company in their behalf and that
the Company has "checked off" dues on behalf of Local No. 65 from the wages of
said employees.
Upon the entire record the Trial Examiner therefore finds that since July 15, 1953,
Local No. 65 has been the representative of the employees in the above-described unit
of employees for the purposes of collective bargaining found to be appropriate.4
2. The refusal by Local No. 65 to bargain
Frank J. Brown, now the Company's manager of labor relations and formerly its
manager of industrial relations, charged in both positions with the negotiation of
2 The charge was filed April 10, 1957, and due notice given on that date. The com-
plaint is dated September 23, 1957, the notice of hearing issued the same date The
answer was filed October 2, 1957.
3 General Counsel's Exhibit No 6
4 As will be discussed later, Local No 65 on February 7, 1957, notified the Company
that it abandoned its claim to represent the employees in question
SHEET METAL WORKERS UNION, LOCAL NO. 65 1683
contracts with the unions representing the Company's employees, testified that he
participated in the negotiation of contracts with Local No. 65 in 1954, 1955, and 1956.
Brown testified that all the Company 's negotiations with Local No. 65 followed a
uniform pattern. According to Brown:
The procedure would be for the union to furnish the company notification that
they wished to reopen the contract incorporating certain changes. A meeting
would be arranged between the company and the union. The demands would
be presented in detail and there would be as many meetings held as would be
necessary to reach agreement . At those meetings, Mr. Clarence Desch was the
spokesman for the union . He would be accompanied at various times by other
business representatives and by the steward who was an employee of our com-
pany in many of the meetings.
Brown further testified:
Q. Now, in 1954 and '55, did the company reach agreement on a contract
with Local 65?-A. Yes. They did.
Q. And, was that-and were those contracts reduced to writing in each
year?-A. Yes. They were reduced to writing after the agreement reached
between the business agent and the company representatives-when that agree-
ment was reached it would be presented to the employees in our unit for their
acceptance before it would be reduced in writing and then it was incorporated
in a document. [ Emphasis supplied.]
A. After the agreement had been reached and after the employees had ac-
cepted the package, Mr. Desch would notify Mr. Gruenert who was branch man-
ager of the Cleveland Plant that such acceptance had been-was forthcoming, Mr.
Gruenert would contact me in Milwaukee. I would make arrangements with
our legal counsel in Chicago to prepare the necessary copies of the agreement
and it would be sent back to me in Milwaukee and I would check over the
document and then sign it myself and have certain other people in Milwaukee
sign it. I would then mail the necessary copies to Cleveland to Mr. Gruenert.
He would sign it and as would Mr. Desch sign it to complete the execution
of the agreement.
Q. Who signed the contracts in 1954 and 1955 for Local 65?-A. Clarence
Desch.
Q. Anybody else?-A. No.
Local No. 65 admits that the procedure as outlined by Brown was followed and
that Bus ness Representative Clarence Desch had full power to negotiate and sign
agreements in 1954 and 1955 but contends that although the procedure followed
was in the same in 1956 negotiations Desch had been stripped of his powers and
the contracts he negotiated were required to be submitted to the executive board
and approved by the full membership of Local No. 65.5
Brown testified he attended the June 15 meeting together with Carl F. Gruenert
and Mr. Oakley, Local No. 65 being represented by Business Representatives Desch
and Rohaley and Shop Steward Zilbert, and that he attended subsequent meetings
June 19, August 3, and September 6. During these conferences the salient discussion
was on wage rates. Brown testified that the September 6 meeting was opened with
a statement by Business Representative Desch:
that the previous offer that we had made, the last meeting that I attended,
was unsatisfactory to the people in the unit and that we had to have something
different.
According to Brown:
We finally did make a proposal then on a three year basis again for 15 cents
the first year, 10 cents the second year and 10 cents the third year, with certain
liberalizations in our insurance package, which were outlined at that time.
We stated that this would be our final proposal.
Q. After you made this proposal I think you stated that-did Mr. Desch
make any reply?-A. Yes. Mr. Desch stated that to him the last proposition
we made sounded like a good deal but that he would have to present it to the
G The membership of Local No. 65 is not shown in the record, however its secretary,
Elza P. Kelsey, testified that between "five and six hundred" men attended meetings.
The unit of employees of the Company involved herein consists of appropriately 15
individuals
1684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees in the unit to see whether or not they would accept it. He would
do so within the next day or so and he would let Mr. Gruenert know whether
or not the employees in the unit had accepted our final offer.
Brown further testified that on September 11 while in his office at Milwaukee
he received a long distance telephone call from Business Representative Desch in
Cleveland; that Desch asked that the agreement be changed to a 2-year term to which
Brown agreed. Brown testified:
Mr. Desch made the statement, told me at that time that having a two year
.contract this way meant that he would not be bargaining at the same time then
at the expiration of a two year contracts as the Teamsters who represented our
warehouse unit that would be bargaining. I told Mr. Desch that the company
would go along on the two year basis as he had outlined, but, that he should
get official confirmation of the acceptance from either Mr. Greene or Mr.
^Gruenert in Cleveland.
Q. Did he make any reply to that?-A. Clarence replied, "fine, we have
the two year agreement."
Melvin R. Greene, Jr., at the time the Company's regional manager (at present
its Cleveland, Ohio, branch manager) testified that on September 11, 1956, Business
Representatives Desch and Thomas and Shop Steward Zilbert called at his office
in Cleveland. Desch, acting as spokesman, stated "that he thought it [the negotiated
agreement] was a fair contract" but that "he would prefer that the contract be on
a two year basis." Greene testified:
I told Mr. Desch that the company would be agreeable to a two year contract
on the basis of 15 cents the first year and 10 cents the second year, to which
Mr. Desch said that, then you would have yourself a deal. He asked me if
I would contact Frank Brown in Milwaukee and advise him of our agreement
here today and I told him that I would contact Frank immediately and tell him
- of the acceptance and ask Frank to proceed with the preparation of the formal
contract documents.
Manager Brown testified that following the September 11 call from Desch he
received a confirming call from Manager Greene and thereupon had the agreement
arrived at by himself and the representatives of Local No. 65 drawn as a formal
contract, which he and the Company's vice president signed and forwarded to Carl
F. Gruenert (at the time the Company's branch manager. at Cleveland) "for his
signature and the signature of Mr. Desch which represented the final execution."
Carl F. Gruenert testified that on or about October 5, after he had received the
above-mentioned contract he advised Desch by telephone "that they were in my
hands ready for his signature"; that Desch stated "he would come in and sign it on
October 15"; that on October 15, before Desch arrived Gruenert signed the contract
and all necessary copies; that Desch came to his office , examined the contract , stated
that "the wage agreement clause and the length and duration of the contract and
everything was in order" and that:
he indicated that they needed a letter of intent from the company indicating
the items planned for manufacturing in Cleveland.
Desch then stated "they needed that for approval of their executive board."
According to Gruenert no mention of the executive board had been made on any
previous occasion during the negotiations.
Business Representative Desch , with respect to the "letter of intent ," testified:
TRIAL EXAMINER: When and at what meeting did you first raise with the
Inland Company what products the company was going to make under the terms
of the proposed agreement as set forth in Exhibit Number 6?
* * * * * * *
The WITNESS: After we were in possession of the contract. The
TRIAL EXAMINER: You never raised the question of what products the com-
pany was going to make with any representatives of the company until General
Counsel's Exhibit Number 6 was given to you by the representatives of the
company, is that right. Is that what you are saying?
The WITNESS: Yes.
Gruenert further testified that following Desch's request for the letter he asked
Greene to come to his office and had Desch repeat his remarks; told Desch "that to
my mind it was all over with and all that we had to do was sign it"; that Desch again
stated he had to have a letter of intent." He testified:
SHEET METAL WORKERS UNION, LOCAL NO . 65 • 1685
Q. Did he make any mention as to the form that was to be in?-A. No.
Just to be a letter. As I remember I mentioned then that after all the letter
could not be a part of the contract itself. We had gone through that. It was
agreed that such a letter need not be part of the contract.
Q. Who agreed to that?-A. Mr. Desch.
Greene corroborated Gruenert.
Gruenert further testified that: On October 28 he sent a letter to Desch " indicating
the items we planned to manufacture at the Cleveland plant"; on November 1 or 2
he telephoned Desch and asked for an answer to his letter but was told by Desch
that "he was still waiting for approval from the executive board"; on November 7
or 8 he again called Desch and again was told there had been no action taken by
the executive board; that sometime late in November Business Agents Desch and
Thomas called at his office and informed him in Greene's presence that the executive
board 6 wished to meet with the sheet metal product manufacturers of Cleveland, the
Company included; and he consented to attend on certain conditions to which Desch
also agreed. Gruenert testified:
I agreed as long as they would not discuss-or there would be no discussion of
wage rates and any attempt to reopen the contract or anything else. It was
purely just a meeting.
Gruenert further testified that while Desch and Thomas were at his office discussing
the proposed meeting with the executive board he was also advised for the first time
that Desch had only limited authority in negotiation. Gruenert testified:
Q. Was there any discussion or talk about the authority of business repre-
sentatives at that meeting by Mr. Desch?-A. If I could place the date-but we
were advised that the business agents had no longer authority to sign contracts
or commit the local. The executive board would retain such authority.
Q. About when was it that you were told that?-A. I'm trying to-about
November 27th I think.
Q. Is that your best recollection?-A. That is my best recollection.
Q. At any time prior to that occasion, did you have occasion when any
representatives of the union advised you that the business representatives had'
no authority to execute or negotiate contracts?-A. No.
The meeting between the manufacturing companies, including the Company,
was held December 5, the secretary of Local No. 65 read a list of products "o.K'd to.
be manufactured and labeled [with the Union's label] by the companies present";
no agreement was reached. On January 24, 1957, Local No. 65 gave the Company
an additional list of articles to which it could affix the Union's label.
Gruenert further testified that on January 24, 1957, at the time the additional
list was furnished the Company, Business Representative Desch told him he would
sign the contract if the Company agreed to the product limitations. However,
according to Gruenert's testimony:
Well, I said that that had not been a part of it and we had reached agreement
that this was something that was brought in from the outside, not to our
knowledge, hadn't come up during our negotiations and that we had reached
agreement, the contract had not been signed as yet by the local and that we felt
that we should stand there and that the contract as written should be signed.
Q. What did Mr. Desch say, if anything to reply to that?-A. He said that
he had instructions from the executive board to break the contract and get up a
new one.
Q. Did that conclude the discussion at that time?-A. That pretty much did.
On February 7, 1957, the Company received the following letter from Local
No. 65:
CLEVELAND 14, Omo, February 7, 1957.
INLAND STEEL PRODUCTS COMPANY,
1541 East 38 Street,
Cleveland 14, Ohio,
(Attention: Mr. C. F. Gruenert.)
GENTLEMEN: In view of our failure to date to agree upon the substantive
provisions of an agreement between your Company and this Union, I am, under
the instructions of our Executive Board, giving you notice that we abandon our
claim to representation as the collective bargaining agent of your employees.
6 Executive board always refers to the executive board of Local No. 65.
1686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Your'employees who are members of this Union are being notified of this
decision. It will be in order for you to cease deductions of union dues for
the account of this Union.
Effective upon receipt of this letter, the use of our union label is no longer
authorized and we request you to return all copies of the label to this office.
We regret the necessity for this decision but wish to acknowledge our ap-
preciation for the cordial relations that have existed between us, also acknowl-
edgement of receipt of this letter is desired.
Very truly yours,
(Signed) CLARENCE DESCH,
(Signed) WILLIAM THOMAS,
(Signed) PAUL ROHALEY,
SHEET METAL WORKERS' LOCAL UNION
No. 65.
Business Representatives.
Local No. 65 has not signed the agreement and has returned the Company's check
covering dues "checked off" after February 1957.
Greene and Gruenert corroborated Brown's testimony as to the negotiation meet-
ings between the Company and. the representatives of Local No. 65.
Contention of Local No. 65
Three business representatives of Local No. 65 testified they participated in
various negotiating meetings for the 1956 contract with the Company.
Paul Rohaley testified that he is a business representative and a 'member of the
executive board of Local No. 65, having held both posts for the past 8 years.
Rohaley testified he participated in the original contract negotiations between the
parties in 1954; that during these negotiations the items to be manufactured were
discussed in detail. He testified:
The items that were fabricated at the Cleveland Plant at that time were gone
over item by item and the rate was set up for those particular items that were
fabricated in the Cleveland Plant.. . .
The initial contract is not in evidence, however the contract effective June 17,
1955 (the second agreement between the parties) is in evidence. It makes no
mention of items to be manufactured.
The above testimony was offered as "background" and taken as such, the Trial
Examiner accordingly bases no finding on it. However, it should be pointed out
that the representatives of Local No. 65 admitted that during the negotiations which
are the basis for this proceeding, the question of products to be manufactured was
not raised until after the 1956 agreement was negotiated, reduced to writing, signed
by the Company, and given to the negotiating representative of Local No. 65 for
his signature.
Rohaley testified that he attended but one "collective bargaining negotiating meet-
ing" on the 1956 contract; that the meeting was "I imagine the 15th" of June; that
he was with Clarence Desch for Local No. 65; that at this meeting:
Well, we talked over different items. There was a proposal from the local
representing the unit there and a proposal, a counter proposal from the com-
pany. Towards the end of the meeting I told Mr. Gruenert very definitely, I said
that as a member of the executive board I like to inform you that any agree-
ment reached between-in these meetings between the company and the local
would have to go back to the executive board for their approval and then to
the general membership for their acceptance. [Emphasis supplied.]
TRIAL EXAMINER: General membership of what? The Union?
The WITNESS: Of the Union. And that is true.
Rohaley was not questioned regarding the nature of the "proposals from the local
representing the unit" or "the counter proposal from the company." His entire
testimony with respect to the one negotiating meeting he attended being confined
to the alleged statement of his limited authority and the further testimony that after
he made the statement the Company's representatives "had no comment."
Business Representative William Thomas testified that together with Desch in
the "early part" of July he attended a negotiation meeting at the Company's office.
Regarding the meeting he testified:
It was after the proposal that had been put up by the Inland Steel Company
and had been discussed with the unit employed by the Inland Steel Company
and their answer was that it was necessary to return it at that time.
SHEET METAL WORKERS UNION, LOCAL NO. 65 1687:
Thomas was asked by the attorney for Local No. 65: '
Q. Now, at anytime during that first meeting that you attended was there
anything said in your presence about the authority which you possessed to
negotiate?
Over objection the Trial Examiner permitted the witness to answer the question,
the answer being:
I won't quote him word for word but the gist of the thing was, you of course,
undersand that anything that we speak of here will have to be taken back to
the executive board and subsequently to the body for their recommendation
and approval.
Thomas testified further no response was made to Desch.
On cross-examination regarding this July meeting, Thomas could recall none of
the details of the rejected proposal nor remember if a counterproposal was made.
According to the testimony of all other witnesses , no meeting took place in July.
Thomas further testified he attended two additional negotiating meetings with
the Company, one of these he placed in "September, shortly after Labor Day,"
the other in November after the written contract had been presented to Local No. 65
by the Company.
With respect to the September meeting Thomas evaded questions as to how long
the meeting lasted . He testified:
Well, there was some conversation carried on and the proposal had already
been in a written form and Mr . Desch said he would take it back, take it before
the unit employed by Inland Steel to see what their thoughts were on it, on'
the proposal.
Q. You really don't have any definite recollection what was said at that
meeting, do you?-A. No.
As to all the meetings he attended Thomas was asked by the attorney for Local
No. 65:
Q. Was the statement that you just related having been made by Mr. Desch
at the first meeting you attended repeated in any other meeting that you attended?
Thomas agreed : "That statement was made at every meeting that I attended."
Business Representative Clarence Desch who was the principal negotiator for Local
No. 65 with the Company testified that in 1954 and 1955 he negotiated the contracts
with the Company; that in those years he had complete authority to fully negotiate
and execute a collective -bargaining agreement on behalf of Local No. 65; that in
1956 this authority had been taken from him , testifying:
There was taken away from the authority of the business agents the right to
negotiate and conclude an agreement without obtaining the recommendation and
the approval of the membership . To [sic] distinct steps.
that he attended all the negotiation meetings for the 1956 agreement with the Com-
pany ; that however he had no independent recollection of the dates of the meetings.
In questioning Desch with respect to his first 1956 meeting with the Company,
the attorney for Local No . 65 (whose witness Desch was) first summarized the
testimony of the General Counsel 's witness , Carl F . Gruenert, and asked:
Was there any statement made by you or Mr . Rohaley concerning your position
in the bargaining session?
Desch answered:
Yes. There was. A position that we had to assume, we were at that time
engaged in a lawsuit with our International by our Local Union and the conclu-
sion of that lawsuit had not been consumated and there were to some people
who were there some mention made of some involvement in the settlement
between our International and Local 65 on the five firms who had a manufac-
turing rate , Inland Steel being one of them.
Counsel then asked:
Q. State whether or not either you or Mr. Rohaley made any reference to
your authority as negotiators?
Desch answered "I don't know."
Following this statement the following questions and answers were propounded
and given:
1688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. (By Mr. Riemer.) Now, at any subsequent meeting, and there were a
number of meetings with representatives of the company were there not?-
A. That's right.
Q. You have no reason to doubt the various dates that have been mentioned
by Mr. Brown and Mr. Greene, have you?-A. No. I have no reason.
Q. And, you do have a fairly definite recollection of a meeting which was
held on or about September 11th, do you not?-A. Yes. I do.
Q. Or September 5th-or September 6th. September 6th?-A. Yes.
Q. That was shortly after Labor Day?-A. Correct.
Q. Now, before that meeting which Mr. Brown was the fourth meeting, before
that meeting will you state whether or not you at any time in negotiations with
the company and its representatives made any reference to your authority as the
negotiator?-A. I did.
Over objection of the General Counsel, the Trial Examiner permitted Desch to
testify further as follows:
Q. What was your answer?-A. I did.
Q. And, what was the statement that you made, please?-A. I tried to ex-
plain that the authority that I had previously was no longer in my possession
and a certain procedure would have to be followed. Namely, that anything
that was arrived at would have to go to the executive board of the local union
for its recommendation to the membership and the membership would act on
that recommendation, approving or disapproving.
Desch was unable to fix any dates, but testified that he made the statements to
Brown, Gruenert, and Oakley, representing the Company, and to Rohaley or Thomas
(of Local No. 65) or both as well as to Zilbert, the shop steward.
Desch further testified:
TRIAL EXAMINER: Tell us when?
The WITNESS: I can't give you a date. It was on a Monday of such and such
a month or Tuesday. I can't-
By Mr. Riemer:
Q. If you cannot give us an exact date when that statement was made to
the company representatives can you tell us whether it was made at only one
meeting or was it made in two meetings, three meetings? How often was it,
made?-A. It was made at more than one meeting.
Q. Can you tell us whether or not the statement was made before the meeting
of September 6th?-A. Yes.
Q. 1956?-A. It was.
Q. Can you tell us whether it was made at that meeting on September 6th
1956?-A. It was.
Desch was the first witness to be called by Local No. 65. Rohaley its third
witness. Rohaley testified, as has been found herein, that he attended but one
negotiating meeting with the Company; that this was on June 15 (in reality the,
first, real negotiating meeting) according to Rohaley at this meeting he told Gruenert
that the business agents had been limited as to negotiation and all matters were
subject to approval of the executive board and the Local.
With respect to any statements by the representatives of Local No. 65 regarding
the limitation of their authority in negotiating and executing the collective-bargaining
agreement for 1956, the three representatives of the Company testified that such
statements were never made prior to the final and complete negotiations and delivery
of the 1956 agreement signed by the Company.
Manager Frank J. Brown testified:
Q. At any meeting that you attended in Cleveland in 1956, at which Mr.
Desch was present, did Mr. Desch say anything to you or the representatives
of the company about a change in the union 's by-laws?-A. No, sir.
Q. Did Mr. Thomas ever mention that?A. No, sir.
Q. Or Mr. Rohaley?-A. No. sir.
Q. You have no recollection then or any statement being made by any
union representative to you or to any other representative of the company
concerning a amendment of union by-laws relating to the negotiation of
contracts?-A. No, sir.
Melvin R. Greene, Jr., testified:
By Mr. Riemer:
Q. Is it your testimony, Mr. Greene that at none of the meetings you
attended there was no mention by union representatives that any agreement
SHEET METAL WORKERS UNION, LOCAL NO. 65 1689
reached would be subject to approval by the executive board of the union?-A.
No, sir.
Q. Or subject to the approval of the membership?-A. No, sir.
Q. That wasn't discussed?A. No, sir.
Carl F. Gruenert testified:
Q. . . at any of these mettings that you attended between the beginning
of negotiations and beginning in June up to September 11th was there any
mention by any of the union representives at any of these meetings that any
agreement would require approval of anyone other than the employees in your
unit?A. No.
Conclusion as to the Alleged Statements Regarding Their Limited Authority by the
Business Representatives of Local No. 65
As between the testimony of two groups of negotiators to an agreement, one
consisting of men who cannot recall the dates of the meetings, or the discussions of
details, whose testimony is evasive and in some respects contradictory, but who all
very vividly recall that each of them made a clear statement regarding a vital change
in the authority they previously exercised, and who all clearly recall that the state-
ment was made at all the meetings, but can recall no reply being made to the
statement which would vitally effect the negotiations, on one hand, and the testi-
mony of the opposing group which is clear and concise as to every detail of the
various meetings , and which include a categorical denial by each of the latter group
that the alleged statement was made during the negotiations , but was raised only
after all matters were finally reduced to writing and signed by one of the parties, the
Trial Examiner as between the two groups can only accept the testimony of the
latter group.
On the entire record as a whole and his observation of the witnesses while
testifying, the Trial Examiner does not credit the testimony of Clarence Desch,
William Thomas, and Paul Rohaley to the effect that either of them as representa-
tives of Local No. 65 in negotiations with Frank J. Brown, William R. Greene, Jr.,
and Carl F. Gruenert as representatives of the Company between the dates of
June 6, 1956, and November 27, 1956, informed Brown, Greene, Gruenert or either
of them that their authority as business representatives of Local No. 65 was limited
and that any agreement at which they might arrive was subject to the approval of
the executive board of Local No. 65 and of the entire membership of said Local.
Further, as found herein, Gruenert testified that on January 24, 1957, Desch told
him "that he had instructions from the executive board to break the contract and
get up a new one." Desch denied making the statement. On all the evidence
considered as a whole and from his observation of the two men, the Trial Examiner
credits Gruenert and finds that on January 24, 1957, Desch told Gruenert, in
effect, that he had orders to break the contract.
Resume
The Trial Examiner has found that the alleged limited authority of the business
agents representing Local No. 65 was not disclosed to the Company until after all
the terms of the 1956 agreement had been negotiated and reduced to writing.
It is clear that the identical procedure followed in all previous' negotiations was
followed during the 1956 negotiations.
Despite their contention that they repeatedly advised the Company's negotiators
that all proposals must first be cleared by the executive committee and the entire
membership of Local No. 65, the negotiators for Local No. 65 testified that after
each session they informed the Company's negotiators they had reported the preced-
ing session 's proposals to the membership of the unit involved, namely the Com-
pany 's employees. This was in strict compliance with former negotiating procedure
between the parties and in the opinion of the Trial Examiner strongly supports the
finding that the business agents did not make any statements regarding alleged
limited authority.
The Trial Examiner finds that on September 11, 1956, after the Company had
agreed to the request of Local No. 65 that the contract be changed to a 2-year period,
all matters in negotiation between the parties had been fully resolved and the
negotiations for the 1956 agreement had been completed in a meeting of the minds
of both parties . The Trial Examiner finds that reducing the agreement to writing
by the Company and forwarding copies to Desch for his signature was established
procedure between the parties.
1690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Trial Examiner is mindful'-of Brown's testimony, which Desch did not deny
that on September 11, with respect to the 1956 agreement, Desch told him in a
telephone conversation, "fine, we have the two year agreement." The Trial Examiner
is likewise mindful of Gruenert's testimony that Desch on October 5, told him over
the telephone that he would be in on October 15 and sign the agreement. On the
entire record, and his observation of the witnesses, the Trial Examiner credits
Gruenert and finds that Desch did make this statement on October 5.
Desch admitted that there was no objection to the contract's wage terms and
other provisions on the part of Local No. 65, and further admitted that the question
of "the kind of products to be manufactured by the Company" was not raised until
October 15, 1956, when Desch called at the Company's office, presumably to affix
his signature to the contract.
The Trial Examiner is convinced and finds that the issue of "products to be
manufactured by the Company" was deliberately injected into the matter of the
contract only after a full agreement had been reached, not as a genuine issue but
as a pretext for the sole purpose of circumventing the 1956 contract already
agreed upon.
The real reason of Local No. 65 in attempting to evade the contract, not given
but clearly disclosed by evidence which crept into the record, shows that the unit
of employees of the Company directly involved under the agreement is a well nigh
infinitesimal part of the entire membership of Local No. 65 but does create an
economic "conflict of interest" between it and the general membership. Local No.
65 apparently sought to resolve this conflict only after, the agreement between it
and the Company had been negotiated, it went so far as to give orders "to break
the contract" after unsuccessfully injecting a spurious issue, and quite clearly then
sacrificed the minor unit in apparently seeking "the greatest good for ,the greatest
number" as shown in its letter to the Company stating "we abandon our claim
to representation as the bargaining agent of your employees."
The Trial Examiner does not agree with the General Counsel that by its untimely
raising of the false issue of "products to be manufactured" Local No. 65 has engaged
in an-independent violation of Section 8 (b) (3) of the Act, but although not deeming
it necessary to pass on this contention the Trial Examiner does find this conduct
on the part of Local No. 65 to be clear evidence of bad faith.
The internal affairs of a union are not within the ambit of the Act, however, the
Trial Examiner is persuaded that on the entire record he may properly find that
the letter wherein Local No. 65 informed the Company that it had abandoned its
claim to the unit and ordered the Company to cease affixing the Union's label to
its products is evidence of bad faith and was only a subterfuge by Local No. 65.
The Trial Examiner so finds. -
The record discloses that Local No. 65 did continue to accept dues "checked
off" by the Company from the unit's members until the February 7, 1957, letter,
and further discloses that the Company put the 1956 contract, not signed by Local
No. 65, into effect as to all its terms.
Concluding Findings
Upon the entire record, the evidence considered , as ,a whole, the Trial Examiner
finds that Local No. 65 has engaged in conduct violative of the Act, more particu-
larly Section 8 (b) (3) thereof, by refusing to execute a collective-bargaining
agreement with the Company as hereinabove found .7
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Local No. 65 set forth in section III, above, found to constitute
unfair labor practices occurring in connection with the operations of the Company
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
Since it has been found that Local No. 65 has engaged in and is engaging in
certain unfair labor practices affecting commerce, it shall be recommended that
it cease and desist therefrom and take certain affirmative action in order to effectuate
the purposes of the Act.
It has been found that Local No. 65 refused to bargain collectively with the
Company by refusing to execute 'a contract fully and completely negotiated and
.,, New England Die Casting Company, 116 NLRB 1.
E. V. PRENTICE MACHINE WORKS, INC. 1691
reduced to writing, it will therefore be recommended that Local No. 65 execute
the said contract as drawn, dated July 17, 1956, and effective to July 17, 1958.
Upon the basis of the foregoing findings of fact, and upon the entire record, the
Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Inland Steel Products Company is engaged in commerce within the meaning
of the Act, and its operations meet the jurisdictional standards set by the Board.
2. Sheet Metal Workers Union, Local No. 65, AFL-CIO, is a labor organization
within the meaning of the Act, and represents and bargains for the unit of employees
described herein as an appropriate unit for collective bargaining.
3. Since July 15, 1953, and at all times material herein, Sheet Metal Workers
Union, Local No. 65, AFL-CIO, has been the representative for the purposes of
collective bargaining for the following described unit of the employees of Inland
Steel Products Company, Cleveland, Ohio:
All hourly rated manufacturing employees at the Company's Cleveland, Ohio,
plant excluding all warehouse employees (including shipping-receiving and
maintenance employees), truckdrivers, office and clerical employees, and all
supervisory employees as defined in the Act.
4. By failing and refusing to bargain with the Inland Steel Products Company
in its capacity as the exclusive representative of the employees within the appro-
priate unit, the aforesaid Local No. 65 has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (b) (3) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
E. V. Prentice Machine Works, Inc. and International Associa-
tion of Machinists , District Lodge No. 24, AFL-CIO. Case No.
36-CA-788. June 27,1958,
DECISION AND ORDER
On January 30,1958, the Trial Examiner Howard Myers issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was ehgaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent and the
General Counsel filed exceptions to the Intermediate Report, and the
Respondent filed a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Jenkins, and Fanning].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed.' His
1 For the reasons stated in The Great Atlantic and Pacific Tea Go, 118 NLRB 1280,
we find no merit in the Respondent's exceptions to the Trial Examiner's rulings denying
Respondent's motion at the hearing that the Board make available to the Respondent for
inspection and copying affidavits of the three complainants herein which the General
Counsel obtained during the investigation of the charges, the General Counsel having
previously denied such request by the Respondent. Member Jenkins, who expressed his
120 NLRB No. 210.