Colony Furniture Co.

National Labor Relations Board - Board Decisions

Nov 15, 1963

144 N.L.R.B. 1582 (N.L.R.B. 1963)

1582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Aaron Newman , Daniel Newman , Paul Newman and Carl New-
man, a Partnership d/b/a Colony Furniture Company and
Furniture Workers Union Local 3161 , United Brotherhood of
Carpenters & Joiners of America, AFL -CIO. Cases Nos. 21-
CA-4549 and 21-CA-4906. November 15, 1963
DECISION AND ORDER
On February 21, 1963, Trial Examiner William E. Spencer issued
his Intermediate Report in the above-entitled cases, finding that the.
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief. The General Counsel
filed a brief in support of the Intermediate Report.
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 Inter-
mediate Report, the exceptions and briefs, and the entire record in
the cases, and hereby adopts the Trial Examiner's findings, conclu-
sions, and recommendations with the modifications noted herein.
We agree with the Trial Examiner's finding, and for the reasons
stated by him, that Respondent did not bargain in good faith with
the Union and thereby violated Section 8(a) (5) and (1) of the Act.
We note particularly that, as found by the Trial Examiner, Aaron
Newman held out his son Daniel as having authority not only to
negotiate, but also to conclude an agreement with the Union, and that
after Daniel, pursuant to this representation, agreed upon terms of
a new collective-bargaining agreement, Aaron repudiated his son's ac-
tions. We note Respondent's defense that, as the employees could
reject an agreement concluded by their negotiator, so Respondent
should be free to disavow the agreement of its representative. How-
ever, it is patent that Respondent understood at all times during the
negotiations that any agreement reached would have to be ratified by
the employees, whereas Aaron's representations to the Union's negotia-
tor led the latter reasonably to believe that Daniel could conclude an
agreement on behalf of Respondent.
THE REMEDY
To remedy the Section 8 (a) (5) violation, the Trial Examiner recom-
mended, in part, that the Board order the Respondent to forthwith
execute the bargaining agreement reached with the Union's negotia-
tor on or about May 18, 1962. However, more than a year has elapsed
since the 1-year agreement was reached between the negotiators for
the Union and the Respondent and it is not clear whether the Union
would now desire to submit this agreement to its members for ratifica-
144 NLRB No. 155.
COLONY FURNITURE COMPANY 1583
tion. Accordingly, we shall order the Respondent, upon the Union's
request, either to execute the foregoing agreement, this agreement
to be effective from May 18, 1962, to at least the next renewal date as
provided therein following signature, or to bargain collectively with
the Union as the exclusive representative of the employees in the
appropriate unit, and, if an understanding is reached, to embody
such understanding in a signed contract.' We believe that such an
order, together with the "cease and desist" provisions recommended
by the Trial Examiner, are adequate to remedy Respondent's viola-
tion herein.
ORDER
The Board adopts as its order the Recommended Order of the Trial
Examiner,2 with the following modifications :
1. Delete subparagraphs (a), (b), and (c) of paragraph 2 thereof,
and substitute the following :
(a) Upon request by Furniture Workers Union Local 3161,
United Brotherhood of Carpenters & Joiners of America, AFL-
CIO, execute the agreement reached on May 18, 1962, the agree-
ment to be effective from that date to at least the next renewal
date as provided therein following signature, but if no such re-
quest to execute is made, bargain upon request with the Union
as the exclusive bargaining representative of all employees in
the following unit :
2. Renumber the other subparagraphs of section 2 accordingly.
3. Substitute for the second indented paragraph of the notice ap-
pended to the Intermediate Report the following :
WE WILL, upon request, execute the May 18, 1962, agreement
reached by us and the negotiator of Furniture Workers Union
Local 3161, United Brotherhood of Carpenters & Joiners of
America, AFL-CIO, the agreement to be effective from that
date to the next renewal date as provided therein following sig-
nature, but if no request to execute is made, we will, upon re-
quest, bargain collectively with the Union as the exclusive bar-
gaining representative of all employees in the following unit :
All production and maintenance employees at our Los
Angeles, California, plant, excluding clerical employees,
watchmen, guards, professional employees, truckdrivers,
upholsterers, and all supervisors as defined in the Act.
MEMBER JENKINS took no part in the consideration of the above
Decision and Order.
Warrensburg Board & Paper Corporattion, 143 NLRB 398.
2 The Recommended Order is hereby amended by substituting for the first paragraph
therein, the following paragraph:
Upon the entire record in these cases , and pursuant to Section 10(c) of the National
Labor Relations Act, as amended , the National Labor Relations Board hereby orders
that Respondent, Aaron Newman , Daniel Newman , Paul Newman and Carl Newman,
a Partnership d/b/a Colony Furniture Company, its officers, agents , successors, and
assigns, shall:
1584 DECISIONS OF NATIONAL'LABOR RELATIONS BOARD
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding involves allegations that Aaron Newman , Daniel Newman, Paul
Newman and Carl Newman, a Partnership d/b/a Colony Furniture Company, herein
called the Respondent , violated Section 8(a) (1) and ( 5) of the National Labor Rela-
tions Act , as amended , 61 Stat. 136, 73 Stat . 519, herein called the Act, and is based
upon a consolidated complaint issued by the General Counsel of the National Labor
Relations Board, the latter herein called the Board, on October 5 , 1962. ( The com-
plaint in Case No. 21-CA-4549, issued on December 1 , 1961 , was initiated by a
charge filed by Furniture Workers Union Local 3161 , United Brotherhood of Car-
penters & Joiners of America, AFL-CIO, herein called the Union , on October 18,
1961 . The original charge initiating Case No. 21-CA-4906 was filed by Union on
July 30, 1962 , an amended charge on September 26, 1962, and a second amended
charge on September 28, 1962. ) The Respondent in its duly filed answer denied the
commission of the alleged unfair labor practices . A hearing on the consolidated
complaint , with all parties participating , was held before Trial Examiner William E.
Spencer in Los Angeles , California , on December 13, 1962. The General Counsel
and the Respondent each filed briefs.
Upon consideration of the entire record in the case, and from my observation of
the witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, a partnership composed of Aaron, Daniel, Paul, and Carl Newman,
d/b/a Colony Furniture Company, is engaged in the assembly and finishing of furni-
ture at plants located in various States of the United States, including a plant located
in Los Angeles, California, its only operation involved in this proceeding. During
a representative 12-month period the Respondent purchased wood stock valued in
excess of $50,000 which was shipped to Respondent's Los Angeles plant directly
from suppliers outside the State of California.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization admitting to membership employees of the
Respondent.
M. THE UNFAIR LABOR PRACTICES
It is undisputed, and found, that the Union at all times material herein was, and
now is, the exclusive bargaining representative of all employees in the following unit
found to be appropriate for purposes of collective bargaining:
All production and maintenance employees at Respondent's Los Angeles, Cali-
fornia, plant, excluding office clerical employees, watchmen, guards, professional em-
ployees, truckdrivers, upholsterers, and all supervisors as defined in the Act.
The Respondent partnership is composed of Aaron Newman and his three sons,
Daniel, Paul, and Carl Newman. Aaron Newman is the senior partner, owning a
majority interest in the partnership, and apparently is in charge of Respondent's
principal office in Linden, New Jersey. Daniel Newman is executive in charge of
Respondent's Los Angeles plant, its only operation involved in this proceeding, and
has been since March 15, 1960, about 4 months after the Los Angeles plant was
opened. In June 1960, the Union and the Respondent executed a bargaining agree-
ment applicable to Respondent's Los Angeles operation. This contract expired about
July 1, 1961. It was negotiated by Rod Taylor, the Union's senior business repre-
sentative, and Aaron and Daniel Newman. Daniel Newman signed the agreement
on behalf of the Respondent. Subsequent to the expiration of this contract, the
matter of the Union's majority was put in question and an election held. Pursuant
to the results of this election, the Union was again certified as bargaining representa-
tive on September 6, 1961.
Following the Union's recertification, Taylor entered into negotiations with the
Respondent for a new contract. Aaron Newman represented the Respondent at
the first of these meetings in September, and, according to Taylor's credited testimony,
stated that Daniel Newman was then out of town but would be back to represent
the Respondent in future negotiations. Thereafter meetings occurred between Taylor
and Daniel Newman, and at some of these meetings, at Daniel's suggestion, Taylor
talked to Aaron Newman in the latter's New Jersey office by telephone, in order to
explain the Union's proposals to him. On October 18, 1961, the Union filed a charge
COLONY FURNITURE COMPANY 1585
With the Board alleging acts and conduct on the part of Daniel Newman constituting
a violation of Section 8(a)(1) and ( 5) of the Act, and on December 1, 1961, the
General Counsel issued a complaint in Case No. 21-CA-4549 based on the said
charge. Subsequent to the issuance of this complaint the Union and the Respondent
executed a settlement agreement and on January 12, 1962, the Board 's Regional
Director approved the agreement . The agreement provided inter alia that the
Respondent would bargain with the Union and, if an understanding was reached,
would embody such understanding in a signed agreement.
It is the General Counsel's position in chief that the Respondent violated the terms
of the settlement agreement in that on or about May 18, 1962, it signified its full
agreement with the Union 's negotiator on a bargaining contract and thereafter refused
to execute the agreement . Whether or not an agreement was reached with such
finality as to bind the Respondent is a principal issue inasmuch as it is clear that the
Respondent refused to execute the agreement in question . The answer hinges some-
what on the authority of Daniel Newman to make a binding agreement on behalf
of the Respondent , it being the Respondent's position that he had no such authority
unless and until the agreement had been submitted to Aaron Newman and approved
by him.
There can be no doubt that prior to March 1962 , Aaron Newman played an active
role, in conjunction with his son , Daniel, in negotiations with the Union . Admittedly,
on occasions in November and December 1961, Daniel, while carrying on face-to-face
negotiations with Taylor, arranged for the latter to talk to his father by telephone in
order to explain certain of the Union 's proposals which Daniel agreed to but on
which he felt his father 's concurrence was required to make his agreement effective.
There were a number of such telephone calls and it further appears that written
communications were exchanged between the Union 's negotiator and Aaron Newman.
At a meeting about January 28 , 1962, Aaron was present in Los Angeles with Daniel
during negotiations and, according to Daniel , did most of the talking . A principal
cause of conflict between Taylor and Aaron Newman was the Union 's insistence on
an arbitration clause. Such a clause was included in the 1960-61 contract , together
with a no-strike no-lockout commitment , but from the start of the 1961-62 nego-
tiations, Aaron took a strong position opposing the inclusion of such a clause in the
new contract . The Union countered that without an arbitration clause it would not
agree to a no -strike pledge being incorporated in the contract . Admittedly, Daniel
on occasion advised Taylor that no arbitration clause could be accepted without his
father's approval . Thus matters stood in January 1962. However , Aaron Newman
modified or receded from his position opposing arbitration when on or about
February 28 he mailed to Taylor from his New Jersey office what was in effect a
counterproposal containing an arbitration clause. In a covering letter Aaron Newman
referred to the document as "a revision of the Agreement which you recently sent us,
which we believe more clearly conforms to the terms and conditions we agreed upon
during our many meetings and adjustments of previous contracts which we have
presented to you."
By letter to Aaron Newman dated March 6, Taylor, after stating his dissatisfaction
in attempting to reach an agreement on a contract through a written exchange of
proposals and counterproposals between himself and Aaron Newman , advised the
latter that he was seeking the services of the Federal Mediation and Conciliation
Service in negotiating a contract with the Respondent , and concluded with this
language:
Therefore , will you please delegate authority to someone locally to negotiate
with the Union and a mediator from the Federal Mediation and Conciliation
Service in order that we may negotiate further and conclude our negotiations
with a signed agreement . [Emphasis supplied.]
Aaron Newman replied to Taylor by letter dated March 14 , in which he reviewed
his own position on the difficulties encountered in negotiating a contract with the
Union , and concluded with this language:
Our Mr. Dan Newman is and has always been available to negotiate with
you. He has had ample authority at all times . Because of my long experience
and the good advice of Mr. Joseph Wells, our company lawyer , he naturally
consults with us. However , this had not been any cause for delay in arriving
at a satisfactory understanding with you.
Taylor and Daniel Newman met twice with Federal Conciliator Jules Medoff,
in the latter's offices. In the first of these meetings , the third week in March, New-
man stated that he would not sign a contract incorporating the Union 's proposed
pension plan . Taylor said that he would have to check with the executive board of
1586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his Union for authority to negotiate a contract omitting the proposed plan. "I had to
do this," he testified, "before we would come to any agreement." In the second of
these meetings , May 18 , Taylor agreed to a contract omitting the pension plan, and
there was discussion on other matters pitched, apparently, on the counterproposal
Aaron had submitted to Taylor in February. Agreement was reached on all items
except arbitration and when Taylor called Daniel Newman's attention to the inclusion
of an arbitration clause in his father's counterproposal, Newman voiced his assent
to the inclusion of such a clause. At the conclusion of negotiations, according to
Taylor, Daniel Newman told him to reduce the agreement to writing and "we will
sign."
Taylor had copies of the agreement made up and about June 8 sent Daniel Newman
a draft for his signature. Some week or 10 days later, Taylor called Newman and
asked him why he had not signed the agreement; according to him, Newman replied
that he had not had time to read it. "I told him," Taylor testified, "that I had to
have the contract signed by the company or an indication that they were going along
with that, so that I could call the people together to have them ratify the agreement
so I could sign it." Taylor called Newman a second time a few days later and,
according to him, got the same reply. Taylor informed Conciliator Medoff that
he had twice called Newman with respect to his executing the agreement, without
success. According to him, Medoff returned his call, told him that Daniel Newman
wanted Taylor to meet with his father when the latter would be present at the plant.
Taylor replied that he would meet with the elder Newman but would not renegotiate
the contract. According to him, Medoff replied, "I don't think you have any problem.
You meet with his father. Dan Newman said he would sign the contract if his
father didn't."
About July 18, Taylor met with Aaron and Daniel Newman. The meeting lasted
about 10 minutes. Admittedly, Aaron Newman told Taylor that because of some
recent court decisions on arbitration, he had had a "change of heart" about the in-
clusion of an arbitration clause in the contract, and wanted to renegotiate the matter.
Taylor replied that the Respondent had agreed on a contract and that he would not
renegotiate it and that if the Respondent refused to sign he would file charges with
the Board. Aaron replied that he would not submit to intimidation, and there the
matter rested.
There is some conflict in the testimony of Taylor and Daniel Newman with re-
spect to the latter's statements concerning the scope of his authority and what the
latter said on the two occasions when Taylor called him with respect to signing the
draft of the agreement which he, Taylor, had drawn up at Newman's suggestion.
Taylor testified that at the first meeting in the offices of the Federal Conciliator,
Commissioner Medoff, in Taylor's presence, asked Daniel Newman what his position
was and if he had the authority to negotiate and "conclude" a contract. Daniel
Newman replied that he had that authority. Newman testified that when Medoff
questioned him privately about his authority to negotiate a contract, he replied:
"Although I had absolute authority to negotiate, I did not have authority to sign
a contract without my father reading it first and giving his okay . " Newman
further testified that because his father owned the majority interest in the partnership
and because all bookkeeping, accounting, etc., was transacted in the home office in
Linden, New Jersey, all contracts of whatever nature were submitted to his father
for the latter's inspection. Concerning his statement at the conclusion of the May 18
meeting, when admittedly he and Taylor had reached agreement on all terms to be
included in a contract, he testified he said: "I would sign this contract, and my
father-I hoped that he would agree and permit me to sign this, because I was tired
of all the negotiations and the bickering that had gone on, and I personally felt that
the contract was fair to me and to my employees, but that I had to succumb to a
higher authority. I didn't have the absolute authority just to sign the contract
without my father seeing it."
It was his further testimony that his father underwent surgery in May, and that
he sent the draft of the agreement Taylor submitted to him for signature to his
father who was then in the hospital , and that he stated the substance of this to
Taylor in explanation of his delay in executing the agreement. According to him,
in a telephone conversation with his father concerning the draft of the agreement,
Aaron Newman said certain Supreme Court decisions made it dangerous for an
employer to put an arbitration clause in a contract without specifically spelling out
what issues were to be arbitrated, and he, Aaron, would try to get to California and
meet with Taylor concerning the matter.
As to the telephone conversations between Taylor and Daniel Newman about the
latter affixing his signature to the agreement, it does not appear to be material to
the issues whether Newman spelled out the reasons for his delay or not, and if he
did I can see no reason why Taylor, in all other respects a candid and, I am con-
COLONY FURNITURE COMPANY 1587
vinced, a truthful witness, would testify falsely in a matter which would have no
adverse effect on his position . On the other hand, if Newman unequivocally agreed
to execute the agreement made at the May 18 meeting, as Taylor testified he did,
he might be reluctant to tell Taylor that he was stalling until he received his father's
approval . I am further convinced that Taylor believed , and reasonably believed,
that in the negotiations which occurred in the office of Commissioner Medoff,
Daniel Newman had the authority to negotiate and conclude an agreement . Before
these meetings occurred Taylor had called on Aaron Newman for a showdown in
bargaining authority, and Aaron Newman had replied that while Daniel "naturally"
consulted with him, he had "ample authority " in negotiations . Taylor would
reasonably conclude that "ample authority," considered in conjunction with his
demand, meant authority to negotiate and conclude an agreement . Also, it seems
highly improbable , in the light of Taylor 's experiences in the past in attempting to
negotiate with the two Newmans , that he would have sought and participated in
negotiations with the assistance of the Federal Mediation and Conciliation Service,
had Daniel Newman at any time during those negotiations stated that any agree-
ment reached therein would be tentative only, subject to the elder Newman 's veto.
In short, I am convinced that at no time during the March and May negotiations
in the office of Commissioner Medoff, did Daniel Newman state , in Taylor's presence,
that his father reserved veto power over any agreement reached between himself
and Taylor.
Respondent argues that the very fact that Taylor in his telephone calls to Daniel
Newman with respect to getting the latter's signature on the agreement , said in effect
that he would not submit the contract for employee ratification until it was signed
by the Company or some indication given that the Company would abide by its
terms, shows that Taylor, contrary to his testimony , understood all along the
limitations impressed on Daniel Newman 's authority to conclude an agreement
binding on the Respondent . This is one possible construction of Taylor's words
when he called Newman about signing the draft of the agreement which he, Taylor,
had submitted , but not one that I am able to accept. Taylor did not call Newman
until enough time had already elapsed to indicate hesitancy on the part of the
latter in signing the agreement , and this, together with his bargaining relationship
with the Respondent in the past , would reasonably raise some question in Taylor's
mind as to whether the Respondent intended to honor its agreement . In my opinion
it does not , under the circumstances , conflict with Taylor's testimony that throughout
the period of negotiations in the offices of the Federal conciliator , he understood
that Daniel Newman had the authority to negotiate and conclude an agreement.
As previously indicated , I think he would not have entered into those final negotia-
tions had his understanding been otherwise.
Daniel Newman admitted that the draft of the agreement submitted to him by
Taylor for his signature was accurate and complete in every respect . "I cannot
disagree with him [Taylor ] at all," he testified . Furthermore , the only objection
to the agreement raised by the elder Newman was the inclusion of an arbitration
clause. That clause was , in haec verba , his own proposal included in his counter-
proposal of February 28. At no time during negotiations did he withdraw that
counterproposal or inform Taylor-or, it may be assumed, Daniel Newman -that he
had had a change of mind with respect to the matter , as he might well have done inas-
much as his right to consult with his son during negotiations is unquestioned. As-
suming, arguendo , therefore , that there was some limitation on Daniel Newman's
authority to conclude a contract , the agreement of May 18 with respect to arbitration
was agreement on Aaron Newman 's own counterproposal .' It would follow that,
assuming limitations on Daniel Newman 's bargaining authority , the agreement
reached on May 18 was concurred in by Aaron Newman, unless there was some fur-
ther limitation imposed on negotiations with the Union to the effect that regardless of
any agreement reached by the negotiators, the Respondent was free at all times there-
after to retract and renegotiate its position. Such limitations would of course make
a farce of the bargaining process.
Respondent 's able and respected attorney argues, with some plausibility, that
Respondent 's position with respect to bargaining authority vested in its negotiator
was no different than the Union 's. Taylor, on at least one occasion , had to clear
i The record does not disclose what court decisions Aaron Newman relied on for his
change of mind with respect to arbitration , nor the date of their issuance , nor lust when
this change of mind first occurred . Obviously , if it occurred during the course of nego-
tiations he was free to communicate his change of position to Daniel Newman, and the
matter thereupon would have been properly raised before agreement was reached on a
contract
727-083-64-vol. 144-101
1588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with his executive board before he could agree to omit one phase of the Union's
proposal from the agreement. Presumably, there might arise other matters in which
he would have to seek clearance through his executive board. His action, however,
occurred during the course of negotiations, with full disclosure of the limitation on
his authority, and not after an agreement had been reached. No one questions
Daniel Newman's right, during negotiations, to advise and consult with his father on
bargainable issues. He would have this right, I think, whether or not it had been
expressly reserved to him.
A further parallel is seen in the fact that Taylor had no authority to execute a
bargaining agreement until after it had been approved by the employees in the
bargaining unit. From this it is argued that his bargaining authority had the same
limitations as Daniel Newman's. It is not doubted that agreements may be negotiated
subject to ratification by some higher authority; this is done every day. But I think
it is an absolute requirement of bona fide bargaining that where agreements are thus
subject to ratification, the bargaining principals at all times during negotiations be
on notice that such is the case. It seems elementary that during negotiations each
bargaining principal is entitled to know precisely and unequivocally what limitations,
if any, are impressed on his opposite in negotiations, with respect to authority to
negotiate and execute a contract, for this is a matter which would affect and might
be crucial in the course of negotiations. Heie, there can be no doubt that the Re-
spondent was on notice at all times that any agreement reached with the Union's
negotiator was subject to ratification by the employees in the bargaining unit. This
was clearly defined union policy and the Respondent had already negotiated and
executed one bargaining agreement with it prior to the negotiations now in ques-
tion. The logical and inescapable corollary to this is that the Respondent was bound
by any agreement reached with the Union's negotiator for the reasonable period
required for submission of the agreement to the employee unit, otherwise any ratifica-
tion by the voting unit could be rendered a nullity by the simple expedient of the
Respondent withdrawing from the agreement. That the Respondent well understood
this procedure is not questioned and is vertified by Daniel Newman's statement to
Taylor at the close of negotiations on May 18, that Taylor was to submit a draft of the
agreement and he, Newman, would sign it. Nothing was said, or implied, about
ratification by the voting unit as a condition precedent to Newman's execution of
the contract. The parallel argued by the Respondent fails and fails completely for
the simple reason that there was no such clearly defined limitation on Daniel New-
man's authority, during the period of bargaining in question, to negotiate and execute
a contract.
The Union, after months of trying to negotiate a contract with a double-headed
authority composed of Aaron Newman and his son, Daniel, the two in frequent dis-
agreement on what was acceptable in a contract with the result that one canceled out
the other, by its letter to Aaron Newman dated March 6, served effective notice on
the Respondent of its dissatisfaction with the course of bargaining up to that date
and its insistence on an effective delegation of bargaining authority by the Respondent.
As previously found, and here reiterated because of a slightly different posture of the
issue, Aaron Newman's reply, while reserving to Daniel Newman the right to "con-
sult" with his father who in turn had the advice of legal counsel-a right not
questioned-gave assurances that Daniel Newman had "ample authority" to negotiate
a contract The language of this letter, in my opinion, is not susceptible to the con-
struction that it put the Union on notice that any agreement arrived at between
Daniel Newman and Taylor would be subject to Aaron Newman's approval or rejec-
tion. A reasonable construction of the language, considered in the context of the
Union's demand which preceded it, would be that consultations between Daniel
and Aaron Newman might well occur during the period of negotiations, but not
after an agreement had been reached Obviously, this was Taylor's understanding
of the letter; it was an understanding based on a reasonable construction of Aaron
Newman's letter; and negotiations proceeded on that basis. Given its construction
most favorable to the Respondent, the most that can be said of Aaron Newman's reply
to the Union's demand for an effective delegation of bargaining authority is that
it was ambiguous, and any bargaining principal is entitled, in the interest of bona fide
bargaining, to something more than an ambiguous definition of the bargaining
authority of his opposite in negotiations.2
Finally, it is not contended that Respondent's refusal to execute the May 18 agree-
ment was based in any part on the fact that the agreement was subject to the ratifica-
tion by employees in the bargaining unit. There is no evidence to that effect. The
2 flee John F LeBns. Regional Director v Local No 1800, International Longshoremen's
Association; et al. ( Standard Fruit and Steamship Co ), 52 LRRM 2500 (D.C. E La ).
COLONY FURNITURE COMPANY 1589
evidence is that Respondent's signature to the agreement was withheld and refused
solely because Aaron Newman, at some date not fixed by him, had changed his mind
about the arbitration clause he himself had earlier proposed for inclusion in the
contract. One may question the sagacity of the Union's negotiator in refusing to ex-
plore with Aaron Newman his change in position; such an exploration might possibly
have had fruitful results; on the other hand, the Union, more than a year after
its last contract with the Respondent had expired, after many months of fruitless
negotiations with the Respondent on a new contract with arbitration at all times a
source of conflict in negotiations, and having finally reached an agreement in the mat-
ter based on Aaron Newman's own counterproposal, may well have believed that
once it consented to reopen negotiations on the one issue the whole course of negotia-
tions which had led up to the agreement of May 18 might collapse, for if the Respond-
ent was free to repudiate any part of its May 18 agreement, it was free to repudiate
all of it. It is borne in mind that any delay in the submission of the agreement to the
employee unit for ratification was not attributable to the Union but to Daniel New-
man's failure and refusal to execute it. In other words, there was no element of laches
on the Union's part such as would give rise to a reasonable demand by the Respondent
that the agreement be opened up for renegotiation.
Independently of the single factor of Respondent's refusal to execute the May 18
agreement, I would find, and do find, that Respondent's entire course of bargaining
with the Union on a contract to succeed the one which expired July 1, 1961, lacked
the bona fides the Act envisages and requires of bargaining principals. The division
of bargaining authority between Aaron Newman, with his office in New Jersey, and
Daniel Newman in Los Angeles, required that the Union in effect attempt to negotiate
a contract through long-distance telephone calls and written correspondence, except on
those rare occasions-once in September 1961, and once in January 1962-when
Aaron Newman was in Los Angeles, for though Aaron set his son Daniel up and
represented him to the Union as the Respondent's negotiator, it is obvious that the
Union in order to reach any sort of binding agreement with Daniel had first to
persuade his father to the Union's point of view. Thus, in negotiations with Daniel,
though he expressed himself as personally agreeable to many of the Union's proposals,
the Union had to carry the burden of e^tablishmg contact with the elder Newman in
New Jersey and through such long-distance contacts persuade the latter, if it could, to
accept the Union's proposals. It was not a simple matter of consultation between
Daniel and his father for purposes of establishing a stable bargaining position; it was
a matter of agreement being arrived at between the Union and Daniel Newman with
the additional burden being placed on the Union to persuade Aaron Newman, also, to
accept the Union's point of view before that agreement could have any validity. In
short, it appears that Daniel was a mere figurehead negotiator and that actual negotia-
tions had to be transacted with his father in the latter's New Jersey office. This is the
situation that existed for a period lasting from September 1961 to March 1962, and
if Respondent's position with respect to negotiations thereafter is tenable, right
up to July 1962, when Aaron Newman demanded, in effect, that the May 18 agree-
ment be opened up for renegotiation. Such bargaining is a far cry from what is
commonly and reasonably understood when it is said that agreements are negotiated
subject to ratification by a higher authority, for here the decisive negotiations were
at all times, at least up to March 1962, with Aaron Newman and most of those
negotiations necessarily occurred by long-distance telephone and written communica-
tions. It seems obvious to me that effective collective bargaining could not be favored
in such a situation of divided and fluctuating authority, with the principal negotiator
for the Respondent seldom present at the bargaining table That bargaining principals
are entitled to face-to-face negotiations with their opposites is, I believe, an elementary
and essential condition of bona fide bargaining and it is apparent that here the
Union's attempt to negotiate with Daniel Newman, except on those rare occasions
when Aaron Newman was present, was mere shadow-boxing, the real negotiator for
the Respondent being, at all times, Aaron Newman, who was seldom present, in
person, at the bargaining table.
The settlement agreement of January 12, 1962, was, I believe and find, effec-
tively breached by such a course of conduct, independently of Daniel Newman's
refusal to execute the May 18 agreement, and when we go behind it and consider
Daniel Newman's efforts in October 1961, apparently on the same day on which
he went through the motions of negotiating with the Union, to undermine the Union
in its representative capacity, by misrepresenting its bargaining position to Re-
spondent's employees, implying that the Union's contract proposals were in some
respects adverse to their interests, and suggesting that they decide among themselves
whether or not he, Newman, should sign the proposed contract-all established in
the credible and undisputed testimony of the General Counsel's witnesses, Taylor,
1590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hubert Hogan, John Lloyd Patterson, and Peter F. Caudillo-we are confronted
with a course of conduct on the part of the Respondent which in its totality is the
antithesis of bona fide bargaining.
I find that by its conduct in attempting to undermine the Union in its representative
capacity by addressing its employees in the manner described above; by confronting
the Union in negotiations with a divided and fluctuating bargaining authority and
in effect requiring the Union to carry on negotiations in substantial measure through
long-distance telephone calls and written communications addressed to Respondent's
Linden, New Jersey, office; and by its refusal to execute a contract it agreed to execute
at the conclusion of negotiations with the Union on May 18, 1962, and by each of
these acts and courses of conduct, the Respondent has refused to bargain with the
Union in violation of Section 8(a) (5) of the Act, thereby interfering with, restrain-
ing, and coercing its employees in violation of Section 8(a)(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with Respondent's operations described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent engaged in certain unfair labor practices as set
forth above, I shall recommend that the Respondent cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act.
Having found that the Respondent, in violation of Section 8(a)(1) and (5) of
the Act, refused to bargain with the Union, the duly designated representative of its
employees in an appropriate unit, I shall recommend that the Respondent delegate
to its negotiator, or otherwise vest in him, the authority to negotiate and conclude
a contract with the Union in face-to-face negotiations; forthwith execute the bar-
gaining agreement reached with the Union's negotiator on or about May 18, 1962;
in all other respects, upon request, bargain with the Union as the exclusive repre-
sentative of all its employees in the appropriate unit concerning wages, hours, and
other terms and conditions of employment, and, if an understanding is reached, em-
body such understanding in a signed agreement.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. All production and maintenance employees at Respondent's Los Angeles, Cali-
fornia, plant , excluding office clerical employees , watchmen, guards , professional
employees, truckdrivers, upholsterers, and all supervisors as defined in the Act,
constitute a unit appropriate for purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act.
2. The Union, a labor organization within the meaning of Section 2(5) of the
Act, has been at all times on and after September 6, 1961, and now is, the exclusive
representative of all employees in the aforesaid appropriate unit for purposes of
collective bargaining within the meaning of Section 9(a) of the Act.
3. By refusing on and after October 1961 to bargain in good faith with the Union
as the exclusive representative of its employees in the aforesaid appropriate unit,
the Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (5) of the Act.
4. By the foregoing conduct the Respondent has interfered with , restrained, and
coerced its employees in the exercise of rights guaranteed in Section 7 of the Act
and thereby has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a) (1) 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.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in the case, it is recommended that the Respondent, Aaron
Newman, Daniel Newman, Paul Newman and Carl Newman, a Partnership d/b/a
Colony Furniture Company, its officers, agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with respect to rates of pay, wages, hours
of employment, and other terms and conditions of employment with the Union as
COLONY FURNITURE COMPANY 1591
the exclusive representative of its employees in the previously described appropriate
unit.
(b) Attempting to undermine the status of the Union as exclusive representative
of its employees in the previously described appropriate unit, by distorting and mis-
representing, in addressing its employees directly, the Union's position in negotia-
tions, and attempting to bargain with its employees directly on matters germane to
collective bargaining.
(c) In any like or related manner interfering with, restraining, or coercing its
employees in the exercise of the right to self-organization, to form labor organiza-
tions, to join or assist the Union or any other labor organization, to bargain collec-
tively through representatives of their own choosing, and to engage in any other
mutual aid or protection, or to refrain from any or all such activities, except to the
extent that such right may be affected by an agreement requiring membership in a
labor organization as a condition of employment, as authorized in Section 8(a)(3)
of the Act, as modified by the Labor-Management Reporting and Disclosure Act
of 1959.
2. Take the following affirmative action designed to effectuate the policies of the
Act:
(a) Designate a negotiator to meet with the Union in face-to-face bargaining,
with full authority to negotiate and conclude a bargaining agreement.
(b) Forthwith execute the bargaining agreement reached by its negotiator and
the Union's negotiator on or about May 18, 1962, and serve a copy of the same on
the Union.
(c) In all other respects, upon request, bargain collectively with the Union as
the exclusive representative of employees in the previously described appropriate
unit with respect to rates of pay, wages, hours of work, and other terms and condi-
tions of employment, and embody in a signed agreement any understanding reached.
(d) Post at its plant in Los Angeles, California, copies of the attached notice
marked "Appendix." 3 Copies of said notice, to be furnished by the Regional Director
for the Twenty-first Region, shall, after being duly signed by the Respondent's
authorized representative, be posted by the Respondent immediately upon receipt
thereof, and be maintained by it for a period of 60 consecutive days thereafter, in
conspicuous places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for the Twenty-first Region, in writing, within
20 days from the date of the receipt of this Intermediate Report, what steps it has
taken to comply herewith .4
8In the event that this Recommended Order be adopted by the Board, the words "A
Decision and Order" shall be substituted for the words "The Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the wards "A Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision
and Order."
'In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Relations
Act, as amended, we hereby notify you that:
WE WILL NOT refuse to bargain with Furniture Workers Union Local 3161,
United Brotherhood of Carpenters and Joiners of America, AFL-CIO, as the
exclusive representative of all our employees in the appropriate unit described
below, or in any like or related manner interfere with, restrain, or coerce our
employees in the exercise of the right to self-organization, to form labor or-
ganizations, to bargain collectively through representatives of their own choos-
ing, and to engage in any other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from any or all such
activities, except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of employment,
1592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as authorized in Section 8(a)(3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
WE WILL execute the agreement reached by us and the negotiator of the
aforesaid Union on or about May 18 , 1962, and in all other respects will, upon
request, bargain with the aforesaid Union as the exclusive representative of
all employees in the appropriate unit described below, with respect to rates of
pay, wages , hours of employment , and other terms and conditions of employ-
ment, and embody in a signed agreement any understanding reached. The
bargaining unit is:
All production and maintenance employees at our Los Angeles, Cali-
fornia, plant, excluding clerical employees , watchmen , guards, professional
employees , truckdrivers, upholsterers , and all supervisors as defined in
the Act.
All our employees are free to become, remain , or to refrain from becoming or
remaining , members in the above-named or any other labor organization.
AARON NEWMAN, DANIEL NEWMAN, PAUL NEWMAN
AND CARL NEWMAN, A PARTNERSHIP D/B/A
COLONY FURNITURE COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 849
South Broadway , Los Angeles 14, California , Telephone No. Richmond 9-4711,
Extension 1031 , if they have any question concerning this notice or compliance with
its provisions.
Herbert Bernstein , Alan Bernstein , Laura Bernstein, a co-
partnership d/b/a Laura Modes Company and District 65,
Retail , Wholesale and Department Store Union, AFL-CIO.
Case No. 3-CA--8774. November 15, 1963
DECISION AND ORDER
On January 17, 1963, Trial Examiner Morton D. Friedman issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondents and the General Coun-
sel filed exceptions to the Intermediate Report together with support-
ing briefs.
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 Leedom, Fanning, and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in this
case, and hereby adopts the findings of facts and the conclusions and
144 NLRB No. 148.