City Transfer Co., Ltd.

National Labor Relations Board - Board Decisions

Jun 28, 1967

166 N.L.R.B. 38 (N.L.R.B. 1967)

38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
City Transfer Co., Ltd., and Hawaii Employers
Council and Hawaii Teamsters and Allied Work-
ers, Local 996. Case 37-CA-430
June 28, 1967
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND ZAGORIA
On April 24, 1967, Trial Examiner James R.
Hemingway issued his Decision in the above-enti-
tled proceeding, finding that the Respondents had
not engaged in any unfair labor practices as alleged
in the complaint and recommending that the com-
plaint be dismissed in its entirety, as set forth in the
attached Trial Examiner's Decision. Thereafter, the
General Counsel filed exceptions to the Trial Ex-
aminer's Decision and a supporting brief. An an-
swering brief was filed by the Respondents.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions,' and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended. the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner, and hereby
orders that the complaint herein be, and it hereby is,
dismissed in its entirety.
' In view of the Union's admitted belief that the moving and storage
negotiations had resolved all aspects of the negotiations except freight
wage rates, the record does not contain sufficient evidence to substantiate
the Union's claim of a change in position (either implied or apparent) by
City Transfer The union position admits to an interpretation of past bar-
gaining practice similar to the Respondents' interpretation City Transfer
had not been a full participant in past negotiating sessions without being
personally represented on the employer bargaining committee It was not
personally represented on the bargaining committee in the freight negotia-
tions Thus, in accordance with the conceded bargaining history, it is
reasonable to find that City Transfer' s intention was to limit its participa-
tion in the freight negotiations to freight wage rates Therefore, the Trial
Examiner correctly concluded that City Transfer had not placed itself in
such a position as would require it to incorporate the provision for
preferential seniority and premium pay for union freight stewards into a
collective-bargaining agreement
DECISION AND RECOMMENDED ORDER
STATEMENT OF THE CASE
JAMES R. HEMINGWAY, Trial Examiner: Upon a
charge filed on August 18, 1966, by Hawaii Teamsters
166 NLRB No. 34
and Allied Workers, Local 996, herein called the Union,
the Regional Director for Region 20 of the National
Labor Relations Board, herein called the Board, acting
for the General Counsel of the Board, on November 29,
1966, issued a complaint against City Transfer Co., Ltd.,
and Hawaii Employers Council, herein called Respond-
ents, alleging that Respondents had engaged in unfair
labor practices within the meaning of Section 8(a)(5) and
(1) of the National Labor Relations Act, as amended, 29
U.S.C. Sec. 151, et seq., herein called the Act.
In substance, the complaint alleges that on about July
25, 1966, after a series of collective-bargaining meetings,
Respondents and the Union reached agreement on the
terms and conditions of a collective-bargaining contract
covering an appropriate unit, but that Respondents
refused to execute a written contract embodying the
terms and conditions of the collective-bargaining agree-
ment reached. Respondents' answer, filed on December
8, 1966, denied that Respondents had engaged in the bar-
gaining alleged or engaged in the unfair labor practices al-
leged in the complaint.
Pursuant to notice, a hearing was held in Honolulu,
Hawaii, on February 20, 1967. At the close of the
General Counsel's case-in-chief, the Respondents moved
to dismiss. The motion at that time was denied. At the
close of the hearing, Respondents again moved to
dismiss. Ruling was reserved and is disposed of by the
Recommended Order herein. Time was fixed for the filing
of briefs, and this time was later extended. Briefs were
received from the General Counsel and from the
Respondents.
From my observation of the witnesses and upon all the
evidence in the case, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT CITY TRANSFER CO.
Respondent City Transfer Co., Ltd., herein separately
called City Transfer (Hawaii Employers Council being
separately called the Council), is, and has been at all
times material hereto, a Hawaii corporation with its prin-
cipal office and place of business located in Honolulu,
Hawaii, where it is engaged in the business of transport-
ing freight and household goods and supplying storage for
such freight and household goods.
City Transfer, in the course and conduct of its business
operations, during the calendar year preceding the is-
suance of the complaint, received in excess of $50,000
pursuant to contracts with, or as agent for, various in-
terstate common carriers operating between and among
various States of the United States, including among
others, Mayflower Long Distance Moving Agency,
which annually receives in excess of $50,000 for its trans-
portation services.
The Council is a voluntary association of employers
existing for the purposes, among others, of representing
and assisting employers, including City Transfer, in
negotiating and entering into labor contracts with the col-
lective-bargaining representatives of their employees, in-
cluding the Union.
Jurisdiction of the Board is not in issue. I find that the
Board has jurisdiction within the meaning of the Act.
II. THE LABOR ORGANIZATION
The Union is a labor organization that represents, for
CITY TRANSFER CO.
the purposes of collective bargaining , employees of many
employers in Hawaii , including those in an appropriate
unit at City Transfer.
III. THE UNFAIR LABOR PRACTICES
A. Refusal to Bargain
1. The appropriate unit and the Union's majority therein
The complaint alleges and the answer admits that a unit
composed of all employees of City Transfer employed on
the Island of Oahu (Hawaii), excluding office clerical em-
ployees, professional employees, guards and/or
watchmen, and supervisors as defined in the Act, con-
stitutes a unit appropriate for the purpose of collective
bargaining within the meaning of Section 9(b) of the Act.
Following a Board-conducted election in 1950, the
Union was certified by the Board as the exclusive bar-
gaining representative for all employees in the aforesaid
unit within the meaning of Section 9(a) of the Act, and the
Union, since that date, has been the exclusive representa-
tive of all such employees for the purpose of collective
bargaining with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employ-
ment. No issue is raised as to the Union's status.
2. Bargaining history
The Council has, for some time, represented a number
of trucking companies in collective bargaining with the
Union. These companies, so far as the instant
proceedings are concerned, are, for the most part, classed
as either moving and storage companies (sometimes
called van lines), which handle household goods, on the
one hand, and freight companies, which move general
freight, on the other hand. City Transfer and one other
company- H. C. & D. Moving and Storage- were
unique in that they operated to a substantial degree in
both lines of business. In 1963, the Union negotiated first
with the freight group, and City Transfer participated,
through the Council, in such negotiations; and, along with
the other freight companies, City Transfer reached an
agreement. This agreement was signed by City Transfer
for all employees, whether engaged in moving household
goods or freight, although separate wage schedules for
each class of employees were attached to the agreement.
However, since the wage rates of employees engaged in
moving and storage work were not settled in the negotia-
tion with the freight employers, City Transfer first at-
tached to its 1963 agreement with the Union a wage
schedule for employees engaged primarily in the move-
ment of freight and later, after the Union had negotiated
an agreement with employers engaged in the operation of
moving and storage businesses, City Transfer added to its
1963 written agreement a schedule of wage rates for its
moving and storage employees, based on the results of
the moving and storage negotiations. However, City
Transfer sat in only on the freight negotiations that year. i
Except for possible differences in classifications of em-
ployees and wage rates, the terms reached for the two em-
i The evidence indicated that it was customary for City Transfer to bar-
gain with the first group (where the two classes of employers did not bar-
gain simultaneously) and would merely append a list of wage rates settled
by the second group's bargaining.
2 It was not customary to sign a written settlement, but it was done in
this instance because a mediator had been called in, and he insisted on a
39
ployer groups were uniform except for the identity of one
of the eight named holidays agreed to. The 1963 contract
was a 3-year term, but it contained a reopening clause for
renegotiating wages in 1965. In 1965 such negotiations
took place, but since the result was a flat-rate increase for
all employees, no question in that year arose concerning
differences between moving and storage employees and
freight employees.
3. The 1966 negotiations for moving and storage agreement
On January 24, 1966, the Union wrote a letter to City
Transfer stating a desire to revise the existing contract,
which was to expire on April 1, 1966, and it enclosed a
list of proposed changes but reserved the right to amend,
modify, or add to those proposals during the course of
negotiations. City Transfer replied that the Council
would represent it "during the negotiation of the con-
tract."
Apparently, the Union had sent the same notice to em-
ployers in both the freight handling and in the moving and
storage operations, because when negotiations com-
menced in February 1966, the Council, which
represented about seven moving and storage companies
and nine freight companies, sought to bargain for both
groups simultaneously. The Union, however, refused to
do this and insisted upon separate bargaining. Rather than
shuttle back and forth from meetings of one group to
meetings of the other, one employer representative sug-
gested deferring the negotiations for the freight group
until a settlement agreement was reached with the moving
and storage group. The Union assented to this and further
freight negotiations were suspended. In 1966, City
Transfer management representatives sat in on the
Union's negotiations with moving and storage employers,
but they did not attend the later freight negotiation ses-
sions.
A settlement agreement between the Union and the
moving and storage employers, represented by the Coun-
cil, was signed on June 24, 1966.2 Sometime during the
following week, Roy Kitamura of the Council, who was
the chief negotiator for the employers, met with Bernard
Stern, the chief negotiator for the Union, and reviewed
the results of the settlement. Kitamura at this time
pointed out to Stern that there remained only freight wage
rates to be settled for H. C. & D. and City Transfer.
Although the aforesaid settlement agreement was
signed by the Council for all bargaining employers who
had been in the moving and storage group negotiations
(other than H. C. & D.), it was the custom for each em-
ployer to sign a new individual agreement. To this end,
the Council, according to custom, prepared new agree-
ments, using as a format the former agreements, insofar
as they remained unchanged, and using the settlement
agreement terms, insofar as changes or additions were
reached therein, and the Council then sent the drafts to
the Union for approval and signature.
The evidence is undisputed that such a draft agreement
was prepared by the Council for City Transfer and was
mailed to the Union. However, the date when it was sent
to the Union was not definitely fixed by the record. It is
written agreement That agreement was signed by the Council on behalf
of the employers it represented . The settlement included all but H. C. &
D. (the other combined freight and moving and storage company besides
City Transfer), for whom negotiations, at the Union's request, had earlier
been severed . Except for freight rates , H. C & D. reached agreement with
the Union on June 27, 1966
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conceded that the draft of the new agreement for City
Transfer was not mailed before negotiations between the
Union and the freight group commenced on July 6, 1966.
The testimony of Stem, chief negotiator for the Union,
concerning the date of delivery, left it in doubt. He
testified at one point that the Union did not receive the
draft of the City Transfer agreement until after the
negotiations for the freight group had been concluded on
July 26, 1966. At another point, however, he conceded
that the Union could have received the draft either before
or after that date. Finally he also conceded that the Union
could have received the draft of the entire agreement, ex-
clusive of freight rates, before the conclusion of the
freight negotiations, and that it might have received
separately merely a draft of the freight wage rates for City
Transfer in the form of an appendix after the conclusion
of the freight negotiations. Kitamura, chief negotiator for
the employers' group, although uncertain of the date of
mailing of the draft agreement, thought it was no later
than July 15, 1966. Neither side, however, attempted to
remove all doubt as to the date by producing a covering
letter or other documentary evidence. Stern did admit
that the draft of the City Transfer agreement was
received at the same time as the drafts of other moving
and storage companies rather than later when the drafts
of the freight companies agreements were received. The
exact date when the draft agreement of City Transfer was
received could, to some extent, bear on the intention of
the parties, for the Respondents contend that the agree-
ment for City Transfer (except as to rates for the latter's
freight-handling employees) was concluded on June 24,
1966, and that only the freight rates remained open for
settlement for City Transfer at the negotiations between
the freight companies and the Union, whereas it is the
Union's contention that City Transfer was included,
without limitation, in the freight group negotiations, thus
throwing the City Transfer contract open for renegotia-
tion or at least for further negotiations as to freight em-
ployees, and that City Transfer was therefore bound by
the settlement reached in the freight company negotia-
tions. On all the evidence, I find that the draft agreement
containing all terms except the wage rates for City
Transfer's freight employees was received by the Union
on about July 15, 1966.
At the July 6, 1966, meeting, an employer's committee
represented the freight employers group. The committee
was composed of representatives of four of the freight
companies (not including City Transfer) in addition to
Kitamura of the Council, who was the chief spokesman.
Stem, spokesman for the Union at this meeting, asked
Kitamura what companies he and his committee
represented. Kitamura replied that he would let Stern
know at the next meeting.3 Stern then told the employers
that the Union wanted the same terms as those reached
in the van lines (moving and storage) settlement and a few
other things besides. The only additional demand he
listed which is of concern here was a provision for
preferential seniority for stewards in layoffs and 10 cents
an hour more pay for stewards over the wage rates for
other employees in the same classification. This same de-
mand had been made by the Union in its negotiations with
the moving and storage group, but it had there been re-
jected by the employers and the Union had withdrawn its
3 The reason for deferring notice of companies represented was that a
meeting of freight company representatives was scheduled for July 7 to
discuss among themselves the terms they desired. Some companies failed
to attend, and these companies were presumed to desire no representation
demand. It was initially rejected also by the freight com-
panies.
At the second meeting, held on July 8, 1966, Kitamura
responded to Stern's request and listed the names of em-
ployers he and his committee represented in the current
negotiations and he also specified several that the Council
would not represent. Stern testified that Kitamura named
nine employers, including City Transfer, as employers
that were represented. Since the others named by
Kitamura were not identified at the hearing, the evidence
fails to disclose whether or not H. C. & D. was one of the
nine named as represented. The situation of H. C. & D.
was similar to that of City Transfer in that it had (albeit
apart from other moving and storage companies) reached
an agreement with the Union on all matters except wage
rates for the freight employees. Determination of the
latter rates for H. C. & D. was deferred and the rates
were to be settled in the freight negotiations. It is con-
ceded that H. C. & D. did not participate in the "general"
freight negotiations, but it is not clear whether or not H.
C. & D. participated in the freight negotiations as to rates
only or whether it was merely to accept the rates there
agreed upon. I assume that it, like City Transfer, had no
management representative present. When Kitamura
named the nine employers represented, he did not state
that City Transfer (or anyone else) was being represented
only as to wage rates.
At this meeting, the employers rejected the Union's
proposal for steward's preferential seniority and extra
pay, recounted problems of the industry, and requested
on behalf of the employers a number of variances from
the terms of the agreement proposed by the Union, all
more favorable to the freight employers. After a discus-
sion of noncost items that day, the parties again met on
July 13, 1966, and a discussion took place concerning
cost items. One provision which the employers wanted
was a 2-day waiting period before sick leave became ef-
fective unless the employee was hospitalized. In the mov-
ing and storage settlement, the Union had succeeded in
reducing the waiting period to only 1 day starting in 1967.
Regarding such differences, Stern, for the Union, asked
Kitamura, for the employers, how the latter proposed to
handle such differences between the moving and storage
agreement and the proposed freight agreement with
respect to a company like City Transfer, which had al-
ready agreed to terms wherein the freight employers
sought a change. Kitamura replied that he was not sure,
but that "we might wind up with two agreements," as
Kitamura quoted himself, or that "we might have to have
two agreements, one for the van lines and one for the
freight," as Stern quoted Kitamura. Kitamura did not ex-
plain this remark to Stern, and Stern sought no explana-
tion.
The final session of the freight negotiations began on
July 25 and went on after dinner far into the night and
early morning hours of July 26. When the employers,
after a caucus, returned and announced their assent to all
other provisions contained in the agreement reached
between the Union and the moving and storage compa-
nies (not already otherwise settled in the freight negotia-
tions) except the steward's clause, the Union's president,
Arthur Rutledge, replied that in that case the freight em-
ployers did not have a settlement and would probably
and so were not represented by the Council There is no evidence that
City Transfer management representatives attended this meeting or, if
they did, what they might have said regarding City Transfer's desires.
CITY TRANSFER CO. 41
have a strike in the morning. The employers' representa-
tives then walked out to the hall, leaving a group of union
representatives conferring privately in Rutledge's office.
When the latter came out of that office into the waiting
room, Kitamura was waiting there, the remaining em-
ployer representatives being still in the hall. Kitamura
then told Rutledge, in the presence of Stern and the other
union representatives who had attended the negotiation
session that night (as stipulated by the parties at the hear-
ing): "Okay. We have got a deal," meaning that the
freight employers accepted even the steward's provision.
Following the meeting - of July 25, 1966, Kitamura
drafted new written agreements for the freight employers
who were represented in the negotiations (other than City
Transfer), incorporating the changes reached in the oral
settlement, and mailed these drafts to the Union for ap-
proval and signature. With these drafts, Kitamura in-
cluded for City Transfer an appendix listing rates of pay
for employees in City Transfer's freight operations which
was to be added to the draft agreement for City Transfer
which Kitamura had previously mailed to the Union with
the batch for the moving and storage companies. That
draft already had appended to it an exhibit listing the rates
of pay of employees in the moving and storage opera-
tions. When he saw the freight contract drafts, Stern
telephoned Kitamura and asked where the shop steward
language was for City Transfer. Kitamura replied that the
parties had already reached an agreement for City
Transfer except for the freight wage rates and that all that
remained to do was to attach the schedule he had just
sent. Stern told Kitamura that this had been his un-
derstanding, too, until Kitamura had said that he
represented City Transfer for freight negotiations (at the
July 8 negotiations). Stern did not testify that he com-
plained of anything except the omission of the steward
language which had been agreed to by the freight em-
ployers at the last negotiation session.
There was at least one other difference between the
freight agreement and the moving and storage agreement,
previously reached. Under the moving and storage agree-
ment , the employer had to give 48 hours' notice before
changing starting time, whereas the freight operators had
succeeded in inducing the Union to reduce the required
period of notice to 24 hours. Regarding this change,
Kitamura had met with Sidney Jensen, secretary and
manager of City Transfer, on an unidentified date, but be-
fore agreement was reached thereon, and asked him if his
Company would be put to a competitive disadvantage as
a result of the difference. Jensen replied that it would not.
No attempt was made by Kitamura to induce the Union
to make a change in this notice provision of City
Transfer's agreement.
Kitamura testified that his reply to Stern's question as
to how the freight employers' proposed changes would be
handled with respect to City Transfer (i.e., "We may
wind up with two contracts.") was one that had not been
authorized by City Transfer and that he had had in mind
only that, if the freight employers had obtained a benefi-
cial provision not obtained by the moving and storage em-
ployers, he intended to seek to persuade the Union to
agree to a modification of the City Transfer agreement.
There is no evidence that he had been requested by City
Transfer to do this.
Kitamura testified that City Transfer had authorized
the Council to negotiate only for rates of pay during the
freight negotiations. Jensen, secretary and manager of
City Transfer, similarly testified. The Council's
authorization to represent City Transfer for freight wage
rates was not reduced to writing. No new letter concern-
ing the Council's authorization or limitation of authoriza-
tion was written to the Union by City Transfer in connec-
tion with the freight negotiations. The only express notice
to the Union of the Council's authority to bargain for City
Transfer was given by the letter from City Transfer dated
February 3, 1966, hereinbefore mentioned.
4. Arguments and conclusions
The General Counsel contends that City Transfer, by
refusing to sign an agreement containing the clause
agreed to by freight employers concerning steward's
preferential seniority and extra pay, had refused to bar-
gain within the meaning of the Act. The Respondents'
position is that (except for freight wage rates) City
Transfer had already reached agreement with the Union
in the moving and storage negotiations and had a contract
complete except for freight wage rates; that the Council
had been given no authority to bargain anew with the
Union on behalf of City Transfer at the freight negotia-
tions; that the Council had only residual authority to
complete the terms of the 1966 contract by negotiating
the freight wage rates and adding an appendix; that any
inference to the contrary to be drawn from Kitamura's
failure to mention that negotiations for City Transfer
were to be limited to wage rates or from his statement
about the possibility of winding up with two contracts
was unwarranted.
At the outset, I observe that City Transfer employees,
both moving and storage and freight, are in a single bar-
gaining unit. Neither City Transfer nor the Union would
have been obliged to bargain more than once for an agree-
ment concerning employees in a single unit . City Transfer
may have contributed to the idea of separate bargaining
for the two types of employees by authorizing the Council
to bargain for it in group negotiations. But in 1966 the
Union made separate bargaining for the two types of em-
ployees virtually mandatory by refusing to bargain with
moving and storage employers and freight employers at
the same time. The Union did not even suggest separate
bargaining with City Transfer, as it had not only sug-
gested but had required with H. C. & D., the other com-
bined freight and van line business. The, problems here
presented would not have arisen if the Union and City
Transfer had, independently of other employers, bar-
gained for all employees in the appropriate unit.4 The is-
sues arise here only because the group bargaining prac-
tices required wage rates to be settled separately for two
types of employees. Such afterthoughts do not, of course,
settle the issues here, but the singleness of the unit is a
factor to be considered in determining the intentions of
the parties.
Before deciding whether or not the Union and City
Transfer had arrived at a new agreement at the freight
negotiations, as contended by the General Counsel, I find
it necessary to dispose of the question of the nature of the
authority of the Council to bargain for City Transfer at
4 It may be noted that the Union sought unsuccessfully to require the
addition of its steward provision to the H. C & D. agreement also
(although H. C. & D. admittedly was not represented at the freight
negotiations , unless it was represented there for wages alone) by arguing
that the steward provision came under the topic of wages and thus should
be included in the wage schedule for H. C. & D. freight employees.
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the freight negotiations - whether it was authorized to
bargain other than for wage rates of the freight em-
ployees. Both Kitamura and Jensen denied that the Coun-
cil had been given any authority at any time, other than to
bargain for wage rates of freight employees . No evidence
was adduced to show any express authority different
from that customarily granted to the Council by City
Transfer, as previously set forth.
If any actual authority was given the Council to
negotiate a new or separate agreement for City Transfer
in the freight negotiations , such authority was not , there-
fore, an express authority . Hence , if actual authority is to
be found , it must be based on an inference drawn from all
the circumstances . Among the circumstances to be con-
sidered , besides the singleness of the unit , is the fact that,
in the past, City Transfer had not negotiated two agree-
ments, one for its freight employees and the other for its
moving and storage employees , and it had never
renegotiated terms of a contract already reached. When-
ever it had participated in negotiations of a second group
of employers , it had done so only to settle wage rates left
unsettled in the bargaining with the first group . Also to be
considered is the fact that the only notice given to the
Union in 1966 by City Transfer, itself, concerning the
authorization of the Council to represent it was in its
letter of February 3, 1966, written in response to the
Union's expression of desire "to revise its existing con-
tract" with City Transfer. In neither the Union's letter
nor City Transfer's letter of reply was anything said about
more than one contract.
Apparently, it is conceded that, before July 8, 1966,
there was no doubt concerning the status of City
Transfer's new agreement and of the extent of the Coun-
cil's authority to represent City Transfer. It was assumed
that only wage rates for freight employees remained to be
settled. And by July 15, 1966, City Transfer demon-
strated its commitment to the agreement reached at the
moving and storage negotiations by sending the Union a
draft thereof for approval and signature . The Union did
not acknowiedgc or even mention this draft of the agree-
ment until after the end of the freight negotiations late in
July.
What, then, did City Transfer do to cause the Union to
believe, as claimed by the Union, that City Transfer had
broadened the Council's authority? If City Transfer can
be inferred to have done anything to change that authori-
ty, the inference must be drawn from some act or failure
to act on the part of City Transfer, itself. Since no affirm-
ative act has been shown, the General Counsel and the
Union, must, I assume, be of the opinion that City
Transfer owed an affirmative duty to notify the Union
again before, or at the start of, the freight negotiations
that the Council had authority to negotiate only for one
contract and that all but freight wage rates had already
been negotiated. I find no such duty existed.
No evidence was adduced to show that City Transfer
knew of the statements of Kitamura, which , the Union
claims, led it to believe that the Council was authorized
to negotiate an entirely new agreement , either to replace
the one already negotiated or to apply separately to
freight employees alone. Silence cannot be taken as as-
sent where City Transfer was never shown to be under a
duty to speak. It had no representative present at the
freight negotiations to hear Kitamura's utterances which
the Union and the General Counsel claim had the effect
of binding City Transfer to a changed authorization, and
no evidence was adduced to prove that either the Council
or the Union had apprised City Transfer of Kitamura's
statements or to show that City Transfer had otherwise
been informed thereof.
The General Counsel asked Kitamura if he was ac-
customed to making statements which were
unauthorized , and Kitamura replied that he was not. I do
not, however , consider Kitamura's answer to be enough
to prove that City Transfer had authorized those state-
ments. Perhaps the General Counsel believes that
Kitamura's answer that he did not customarily make
unauthorized statements , taken in conjunction with the
evidence that Kitamura held a conference with Jensen of
City Transfer concerning the expectation that the Union
would agree to a 24 -hour notice of change in starting time
(instead of a 48-hour notice, as agreed in the 'moving and
storage settlement), would give rise to an inference that
City Transfer had authorized the Council to represent it
on matters other than freight wage rates . But there is no
evidence that City Transfer urged Kitamura to seek such
a change or any other change in its existing agreement.
The evidence is, I find , insufficient to warrant an in-
ference that City Transfer actually conferred authority
upon the Council to negotiate either an entirely new
agreement or a separate agreement for freight employees.
It follows that, if authority had not been conferred,
either expressly or impliedly, on the Council to bargain
'for a new, or a separate, freight contract, City Transfer,
as principal , would be bound by an unauthorized act of its
agent only if it had clothed its agent, the Council, with an
appearance of authority which was relied upon by the
Union. But such evidence would have to show that the
Union had a basis for a belief that the Council's
authorization had been changed by City Transfer. Such
belief should not rest only on unauthorized statements of
the agent. An agent may not clothe himself with apparent
authority where the principal has not contributed to such
appearance.
True, a principal might be bound to a third person if he
secretly limits his agent 's authority and if the agent acts
within his known authority but exceeds the secret limita-
tion. Can it be said here that City Transfer had secretly
limited the Council's authority at the freight negotiations?
There is no basis for such a conclusion. The General
Counsel 's argument appears to be, not that City Transfer
had secretly limited the Council's authority at the freight
negotiations , but that City Transfer had secretly ex-
panded the Council's authority to bargain for more than
wage rates of its freight employees.
Stern, the Union 's representative, admits that, at the
outset of the freight negotiations , he had been of the
opinion that the Union already had an agreement with
City Transfer for all terms except freight wage rates. Yet
it was not any act of City Transfer that altered his
opinion. He testified that his opinion was altered by two
or three statements of Kitamura : ( 1) Kitamura 's state-
ment at the July 8 meeting that the Council represented
City Transfer along with other freight companies, without
specifically stating that the Council's authority was
limited to wage rates in the freight negotiations, and (2)
Kitamura 's reply to questions put by Stern as to how
Kitamura would handle the freight employers ' proposals
which were more beneficial to such employers than were
the terms of the agreement reached with the and storage
employers in respect to a company like City Transfer.
It will be remembered that Kitamura's reply was that
he did not know but that they might wind up with two
contracts. Since no official of City Transfer was present,
the Union had no right to suppose, without further
CITY TRANSFER CO.
evidence, that City Transfer knew of such statement, and
Kitamura's statement, apparently beyond his authority,
is not alone enough to justify a belief that he had extra
authority. As previously pointed out, not only was there
no evidence to show that City Transfer knew of the
aforesaid statements made by Kitamura, but there was
also no evidence to show that City Transfer was even ex-
pecting to gain the several advantages sought by other
freight companies at the freight negotiations.
Kitamura testified that he actually did not believe that
he had a right to negotiate changes in the terms of the
agreement already reached by City Transfer and the
Union at the moving and storage negotiations, but he
testified that, had the freight employers gained ad-
vantages which were not in the moving and storage agree-
ment , he would have tried to get the Union to modify City
Transfer's agreement so that City Transfer would not
have been at a competitive disadvantage. There is no
evidence that City Transfer had implanted this idea in
Kitamura's mind. So far as appears, this was merely
Kitamura's idea of the proper solicitude for the welfare of
a member of the Council, and it led him to make an
unauthorized statement. Insofar, therefore, as the Union
or the General Counsel may contend that City Transfer
was bound by the Council's implying that it was City
Transfer's agent to make either a new contract or a
second contract (even assuming for the sake of argument
that Kitamura's utterances could have implied this) under
the theory of an apparent agency, I find that the circum-
stances no more prove an apparent agency than they do
an implied agency.
Furthermore, in order to invoke the theory of an ap-
parent, as distinguished from a factual, agency, the
General Counsel would have had to establish that the
Union had relied on the misimpression caused by ap-
pearances. I find here no such reliance. It is quite ap-
parent that Stern did not, at any point in the freight
negotiations, commit the Union to a position with respect
to a new or to a second contract for City Transfer until
after the Council, on behalf of the freight employers who
were negotiating for a full contract, had accepted the
Union's proposal regarding steward's seniority and pay.
Even if there had been a provision in the agreement previ-
ously negotiated with the moving and storage group that
the Union might have regarded as of material value, let us
say of more value than the steward's clause, the Union
had not, at any point during the freight negotiations,
placed itself in a position where it would have had to
forego the more valuable provision of the earlier agree-
ment in order to claim the benefit of the steward's clause.
Stern's conduct at the freight negotiations appeared
designed to avoid clarification of the Council's actual
authority as agent for City Transfer and to keep the
Union in an uncommitted position where the Union might
claim the more favorable result, whether of the agreement
earlier negotiated or of the agreement resulting from the
freight negotiations. It will be observed that Stern
avoided putting a pointblank question to Kitamura as to
the Council's authority, and he certainly made no effort
to'learn from' City Transfer of any change it had made in
43
the Council's normal authority. I can only regard such
silence on the Union's part as evidence of an attempt to
gain a tactical position where the Union could pursue the
better of two bargains.
The silence by the Union was carried to a point of
neglecting even to ascertain the mechanics of applying
the steward's clause to the situation at City Transfer. If
the Council had, in truth, had authority to negotiate more
than wage rates for freight employees, was the result of
the freight negotiations to be taken as a new agreement
for all employees in the bargaining unit or only as one ap-
plying to the freight employees? Even Stern could not
have been sure of this. City Transfer had two stewards -
one who worked almost entirely on household goods, the
other who worked 52 to 58 percent of the time on freight
and the rest of the time on household goods. If the freight
negotiations were held to have resulted in a separate
agreement for freight employees only, would the so-called
freight steward at City Transfer be paid only while he was
a freight employee and not while he was an employee
working on household goods? If City Transfer had in-
tended to bargain on all terms of a new agreement or even
only for a separate agreement for freight employees, it
certainly would have required an answer to such
questions. Hence, even if an apparent agency could be
said to exist in this case, it does not appear that the Union
and City Transfer had a clear meeting of the minds neces-
sary to conclude a contract.
On all the evidence, therefore, I conclude and find that
Respondent , City Transfer had, in fact , agreed to sign the
only agreement negotiated on its behalf- the one reached
at the negotiations for moving and storage employers,
which was incomplete only as to wage rates of freight em-
ployees - and that, hence, it did not refuse to bargain by
declining to insert in that agreement the steward's clause
won by the Union from the freight employers who were
bargaining for a complete contract for themselves.
Since the Council's function was only to negotiate and
to draft the agreement actually reached between City
Transfer and the Union, and since it has done so and has
furnished the Union with a draft of an appendix showing
all wage rates for City Transfer's freight employees, I find
that the Council, likewise, has not refused to bargain
within the meaning of the Act.
CONCLUSIONS OF LAW
1. Respondent , City Transfer Co., Ltd., is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondents did not violate Section 8 (a)(5) or (1)
of the Act as alleged in the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in the case,
I recommend that the complaint be dismissed in its en-
tirety.