General Transformer Co.

National Labor Relations Board - Board Decisions

Oct 28, 1968

173 N.L.R.B. 360 (N.L.R.B. 1968)

360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Transformer Company, and International
Union , Allied Industrial Workers of America,
AFL-CIO, and Local No . 305, International
Union , Allied Industrial Workers of America,
AFL-CIO, Party of Interest . Case 25-CA-2580
October 28, 1968
DECISION AND ORDER
On February 21, 1968, Trial Examiner Stanley N
Ohlbaum issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter, Re-
spondent filed exceptions to the Decision and a
supporting brief, and the Charging Party filed cross-
exceptions, a brief in support thereof, and a brief in
opposition to Respondent's exceptions General
Counsel filed a brief in support of the Trial Exam-
iner's Decision and Respondent filed a brief in
opposition to the Charging Party's cross-exceptions.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed i The rulings are
hereby affirmed The Board has considered the Trial
Examiner's Decision, the exceptions, the cross-excep-
tions, the briefs, and the entire record in the case, and
hereby adopts the findings,' conclusions, and recom-
mendations of the Trial Examiner, except as modified
herein.
ORDER
Pursuant to Section 10 (c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial - Examiner, as
modified below, and orders that Respondent, General
Transformer Company, Fowler, Indiana, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order, as herein modified.
1. Delete paragraph 1(e) from the Trial Examiner's
Recommended Order and renumber all subsequent
paragraphs accordingly.
2. Delete the fourth indented paragraph from the
notice and renumber all subsequent paragraphs ac-
cordingly
IT IS FURTHER ORDERED that the complaint be, and
it hereby is, dismissed, insofar as it alleges violations
not found herein.
i CHAIRMAN MCCULLOCH and MEMBER FANNING, dissent-
ing.
The basic issue in this case is whether the certified
International Union (AIW) voluntarily relinquished its
representative status in favor of its Local 305. If, in
fact, Local 305 was substituted for the International,
Respondent did not violate Section 8(a)(5) when it
bargained with and executed a collective-bargaining
agreement with the Local. Contrary to the majority,
we would find that such a substitution was volun-
tarily effectuated by the parties.
The most persuasive evidence that such a substitu-
tion was intended is to be found in the agreements
executed by the parties. The first collective-bargaining
agreement relevant to this case was executed by
Respondent "and Local No. 305, International
Union, Allied Industrial Workers of America, AFL-
CIO," was signed by four members of the Local
union, and was only "approved as to content and
form" by the International.' The International
Union, in short, chose not to become a party to the
agreement. Such an intention is reflected, not only in
the agreement itself, but in the intraunion documents
which explain the purpose of the pertinent contract
language. The opening sentence, which sets forth the
names of the contracting parties, and the phrase
"approved as to content and form" are standard
phrases recommended by the International for inclu-
sion in all contracts executed by affiliated locals.
Explaining the purposes of this language, an "Instruc-
tion Sheet For Determining What Clauses Are To Be
Negotiated" states:
The International Union .. in participating
in the negotiation of this agreement, through its
direct representatives, has acted merely as an agent
for the employees covered by this agreement, and
not as a principal, or as a party to this agreement.
It shall under no circumstances be liable for any
strike, breach or other default.... The signature of
the direct representative of the International Union
appearing hereinafter is evidence of approval of the
agreement by the International Union, but does
not make the International Union a party to such
i Respondent 's request for oral argument is hereby denied as the
record , the exceptions , and the briefs adequately present the issues and
the positions of the parties
2 The Trial Examiner found that Respondent violated Section
8(a)(i) of the Act when, on June 7 , Plant Manager Sturtz told
employees that if they rejected Respondent's proposal for an extension
of the contract , "you won 't get the money , probably have to live out
the life of the present contract " Contrary to the Trial Examiner, we
find that in this statement , Sturtz did nothing more than explain the
173 NLRB No. 61
terms of Respondent's offer in response to an employee's question We
conclude , therefore, that the statement contained no threat of reprisal
and was not violative of Section 8(a)(1).
3 In contrast, when , in other negotiations , AIW has intended to
become a party to the contract , it has spelled out such an intention
explicitly by providing in the opening sentence that the agreement was
between the Company and AIW and the Local Union Such agreements
have been signed by the AIW representative with no notation of
approval as to content and form.
GENERAL TRANSFORMER CO.
agreement, nor liable in any way thereunder.4
The statements made during the organizing cam-
paign preceding the signing of the agreement provide
further evidence of relinquishment. Both orally and in
campaign leaflets, employees were told that if the
International Union won the election it would charter
a local union; that the "local union is the contracting
party" with "full power to negotiate wages and
working conditions;" that the local would "enjoy
complete autonomy," that the International and its
representatives were "pledged to act in their advisory
capacity", and that "the final decision of acceptance
or rejection of the contract is solely in the hands of
the local union." In short, the placement of final
bargaining authority in the local union, with effective
control in the members themselves, was the basis of
AIW's appeal to the employees in its organizaing
campaign.
The policy of transferring full bargaining authority
to local unions after the International has been
certified is reflected in the International Union's
current constitution. Previous constitutions provided
that the International Board could negotiate collec-
tive agreements subject to approval of the members
involved. Such constitutions also specified that collec-
tive-bargaining agreements were to become effective
only when signed by an International representative.
In marked contrast, the current constitution provides
that "Local Unions . . constitute the basic organiza-
tional unit of the International Union;" that the
Local, rather than the International, is "the highest
authority for handling contract grievances,"5 that
contracts between local unions and employers shall be
signed by the local presidents "and such other officers
or committeemen as the Local Union may designate."
All of these factors persuade us that in accordance
with its usual practice, AIW in this case fully intended
to relinquish its representative status in favor of Local
305. Having chosen to absolve itself from contractual
liability by not becoming a party to the contract, we
do not believe that AIW is entitled to demand that it
be bargained with as if it were an actual party to the
contract.
In contending that no relinquishment occurred,
General Counsel and AIW rely heavily on the fact that
the International representative was at all times the
key negotiator for the Union, that he spoke for the
Union at the negotiating table, that he prepared the
Union's proposals and that he processed, and has
continued to process important grievances. The Gen-
eral Counsel and the AIW contend that this degree of
participation is inconsistent with the idea that the
International Union relinquished its certification. We
disagree. The local bargaining committee in this case
was composed of rank-and-file employees who had
little experience in processing grievances or negoti-
ating contracts. It is logical to expect that such a local
committee will turn for assistance to the International
361
representative in the same way that a private party
often turns for assistance to his attorney. The fact,
however, that the International representative domi-
nates negotiations and receives all of the employer's
proposals, does not without more make the Interna-
tional a party to the contract any more than an
attorney negotiating for his client becomes a party to
his client's contract.
For all of these reasons, we would find that AIW
relinquished its status as bargaining agent to Local
305, and, therefore, by bargaining with the Local 305
for modifications of the existing contract, Respond-
ent did not violate Section 8(a)(5) of the Act.
4 Clearly , Respondent cannot insulate itself from contractual
liability simply by stating that it does not intend to be liable. Nor can it
use intraunion communications to contradict or vary the terms of the
written contract . Such communications can, however , be used to clarify
the intention of the parties and resolve ambiguities in the contractual
language. 3 Corbin, Contracts § 579 (1960).
5 In explaining the purpose of this provision , a delegate to the
Union's convention stated that it was necessary "to cover some disputes
that the International has had in court."
TRIAL EXAMINER'S DECISION
I PRELIMINARY STATEMENT
STANLEY N. OHLBAUM, Trial Examiner This unfair labor
practices proceeding, instituted under the National Labor
Relations Act, as amended, 29 U S.C A. Sec 151, et seq
("Act"), by the Regional Director for Region 25 of the
National Labor Relations Board,' was heard by me in Indiana,
at the County Courthouses in Fowler and Lafayette, on March
29-31 and May 16-19, 1967, with all parties except Local No.
305, International Union, Allied Industrial Workers of Amer-
ica, AFL-CIO ("Local 305") appearing and participating
throughout by counsel.2 All parties have been afforded full
opportunity to present evidence, both testimonial and docu-
mentary, to cross examine witnesses, and otherwise be heard,
to make relevant applications, to settle or adjust their
differences,' to propose findings of fact and conclusions of
law, and to submit briefs. Final submission of briefs and
supplemental legal memoranda, which were informative as well
as voluminous, was in October 1967,4 after several time
extensions on request of the parties.
The entire records and briefs having been carefully con-
sidered, upon the basis thereof and my observation of the
demeanor of the witnesses, I make the following
1 By complaint dated December 30, 1966, based upon a charge filed
on the previous August 4 by the above International Union Unspecified
years are 1966 throughout
2 Although named and served , Local 305 did not appear
3 Administrative Procedure Act, 5 U S C. Sec 554(c).
4 A further communication from Respondent 's counsel,
dated January 23, 1968, on notice, has also been considered and
attached to its brief.
5 Hearing transcript as corrected by my January 17, 1968, order on
notice and my further order of January 31, 1968, granting Respond-
ent's January 24, 1968 , motion.
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS AND CONCLUSIONS
II PARTIES, JURISDICTION
At all material times, Respondent General Transformer
Company has been and is an Illinois corporation with a plant
in Fowler, Indiana, where it has been and is engaged in
manufacture, sale, and distribution of transformers, coils, and
related products During the representative 12-month period
immediately preceding issuance of the complaint, Respondent
manufactured, sold, and shipped directly in interstate com-
merce from that plant to points outside of Indiana, finished
products valued in excess of $50,000, also, dunng the same
period, Respondent in the course and conduct of its business
operations purchased, transferred, and delivered to that plant
directly in interstate commerce from points outside of Indiana
goods and materials valued in excess of $50,000
I find that at all material times Respondent has been and is
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act, and Charging Party Interna-
tional Union, Allied Industrial Workers of America, AFL-CIO
("International"), and Party in Interest Local 305, have each
been and are labor organizations within the meaning of Section
2(5) of the Act. I find that assertion of jurisdiction herein is
proper.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Issues
The issues tendered are whether Respondent employer, in
violation of Section 8(a)(5) and (1) of the Act, failed to
bargain collectively with International, and threatened bargain-
ing unit employees that if they did not accept an arrangement
proposed by Respondent they would receive no wage in-
crease.6
6 The charge filed by International on August 4 succinctly frames
the basic issue
On or about and after June 19, 1966, during the term of the current
collective bargaining agreement which runs until October 21, 1968,
the employer by-passed the certified bargaining agent [i e., Interna-
tional) and negotiated and entered an extension of the collective
bargaining agreement with the employees of the employer after the
certified bargaining agent had notified the employer it would not
agree to any extension of the agreement, and which extension
purports that it is to be in effect until December 13, 1970.
Since on or about and after June 18, 1966, the employer has failed
to bargain in good faith with the designated representatives of his
employees.
By these and other acts, the employer has interfered with, coerced
and restrained its employees in the exercise of their rights
guaranteed under Section 7 of the Act and in violation of Sections
8(a)(1) and (5) of the Act
Respondent's answer alleges affirmatively that International was "super-
seded" by Local 305 as exclusive collective-bargaining agent of the
Fowler unit employees on October 26, 1960 Respondent thus contends
that since Local 305, rather than International, was the duly authorized
exclusive collective-bargaining representative of Respondent's unit
employees, the 1966 extension agreement involved no violation of the
Act The complaint and a supplementing bill of particulars also speak of
threats by Respondent to its employees of loss of future benefits or of
withdrawal of wage increase offers by Respondent unless the employees
sanctioned extension by Local 305 of the subsisting collective agree-
ment in the face of International's explicit refusal to do so.
7 The Fowler plant employs around 120 employees (over 90 percent
females) in the unit here, the Essex plant at Logansport, about 35 miles
B Background and Facts Found
Few of the basic facts are in substantial dispute, it is, rather,
their operative legal effect which is sharply contested
Credited evidence establishes Respondent General Trans-
former Company is a wholly-owned subsidiary of Essex Wire
Corporation of Fort Wayne, Indiana, which has 55 plants in
the United States and Canada' After an organizing campaign
followed by an election under the National Labor Relations
Act, International was certified by the Board on September
12, 1960 as exclusive bargaining representative of an appro-
priate production and maintenance unit of Respondent's
Fowler plant employees This certification has not been
revoked or amended by the Board, nor has there been any
application to do so or to decertify, nor have the unit
employees withdrawn their designation of International or
designated a different bargaining representative 8
In accordance with International's practice "to conduct an
organizational campaign . . and if successful, to charter a
local union,"9 on October 5, 1960, about 3 weeks after Board
certification of International, the latter chartered Local 305 as
its subordinate local at Respondent's Fowler plant. Following
negotiations, a collective agreement' 0 regulating the wages,
hours, and work conditions of Fowler unit employees was
entered into on October 26, 1960, effective until October 21,
1965. The agreement recites that it is between "Chicago
Standard Transformer Corporation, Fowler, Indiana plant, its
successors and assigns" and "Local No 344, International
Union, Allied Industrial Workers of America, AFL-CIO,"
which is recognized as the unit employees' exclusive collec-
tive-bargaming agent 1 ' The 1960-65 agreement contains
typical provisions including that permitting International
participation in grievances unresolved at the shop level, a
provision barring unilateral reopener for the life of the
agreement, and a provision for automatic renewal from year to
year after expiration of the initial term, in absence of advance
away, employs around 700 employees, and a non-Essex plant at
Crawfordsville (65 miles away) employs some 400 employees, in the
same or comparable job classification category.
8 As already indicated, Respondent contends that under all of the
circumstances on and since October 26, 1960 International was
"superseded" (Respondent's Answer, par. "7") as exclusive collective-
bargaining representative by Local 305. This contention raises the
principal issue here
9 Credibly so described by International Regional Representative
Lyle Daugherty, testifying as General Counsel's witness Apparently this
practice was not or may not have been invariable, since (as stipulated) at
Logansport, Indiana (Essex "RBM" plant) it was a local union (Local
668) of United Automobile Workers which was certified. International
Union, United Automobile Workers of America, AFL (AFL "UAW")
was the predecessor of International Union, Allied Industrial Workers of
America, AFL-CIO ("AIW," Charging Party herein), which in suc-
ceeding on July 1, 1956 changed the International name from UAW to
AIW "Jurisdiction" of International extends to all branches of
automobile, aircraft, tractor, farm implements, and related industries
and parts-and-tool-supplying industries (Resp Exh 3, art. 4, pp. 13-14).
10 G.C. Exh. 5
11 So on original (G C. Exh 5), with the typed number "344" in
the preamble as well as signature overwritten as "305." The dues
checkoff provision (art II , subd 4) likewise requires the employer to
remit dues of "Local No 344" of International. At the hearing it was
explained by International Representative Daugherty that the references
to "Local No 344" were in error, since "after the original contract was
signed and the local union was chartered, when the charter came out we
discovered that the local union charter was as Local No. 305."
I
GENERAL TRANSFORMER CO
notice of termination At the conclusion, after reciting that
"the parties hereto have hereunder set their hands and seals the
date and year first written above," the agreement is signed by
Respondent "Local No 344" (through its President and
Bargaining Committee members), and International (through
its Regional Representative Daugherty) The signature of
International is preceded by the words "Approved as to
Content & Form "' 2 It is undisputed that the agreement was
signed by all at the same time. Credited testimony of
Respondent's witness Wildman (former Essex labor counsel
who negotiated and signed the 1960 agreement for Respond-
ent) establishes that the 1960 Fowler agreement was "with
little or no discussion" patterned on if not practically copied
from a collective agreement which had recently been negoti-
ated at Essex's Peru, Indiana plant, with no question raised
about the form of the subscriptions at the end of the
agreement.
On August 10, 1961, at the sole instance of International
Representative Daugherty (to Respondent's then Plant Man-
ager Stanger), a "Supplemental and Correction Agreement"' 3
was executed, correcting the misnomers of "the name of the
Company and Local No. of the Union." 14 This was signed by
the Company and
Local #305, Allied Industrial Workers of America, AFL-
CIO,
By /s/ Lyle Daugherty Reg Rep.
By /s/ Robert L Riefel is
The testimony of International Regional Representative
Daugherty establishes that, as one of 12 or 13 salaried
International Representatives in his Region 8, his duties are to
"police the contracts, process grievances, present cases to
arbitration, do organizational work," as well as to formulate
bargaining proposals and engage in collective negotiations.
During the life of the parties' corrected 1960-1965 agreement,
as well as thereafter, Daugherty did this, visiting the Fowler
plant from time to time to "run a general check on the
problems, and . . on the plant" in order " to make sure that
the contract was being lived up to." He also discussed and
resolved problems with plant and Local officials, as when he
instructed the Local to process a discharge grievance to
arbitration, the arbitration being presented to the arbitrator by
Daugherty personally; when Essex Director of Industrial
Relations Gallucci handled with him the matter of classifica-
tion of reed coaters, with the Company agreeing to be bound
retroactively by findings of an International staff job evaluator
(C.P. Exh. 13), and when Daugherty approved Plant Manager
Sturtz's hiring of part-time employees.' 6 Respondent' s witness
Sturtz testified that although "for the most time" discussion
of "day to day plant problems and grievances" has been with
Local 305 President Overbey and the local bargaining com-
mittee, Daugherty visited him and "talked to me about plant
problems rather periodically, I would say even every two
months."
12 According to International Regional Representative Daugherty,
"This is the language we always used in accepting , ratifying, and
approving contracts on behalf of the International Union . This is the
way we have always been informed to sign them on behalf of the
International Union Ever since I first started working for the
International Union.. [ by] every regional director since then."
13 G C. Exh 6
14 Id. I e., in the case of the local, from 344 to 305
15 Riefel was Local 305 vice president at the time
16 Although disputed by Sturtz, I credit Daugherty as to this,
particularly in light of corroborating testimony by Local 305 President
363
With regard to the procedural pattern followed in negoti-
ating collective agreements, International Representative
Daugherty testified credibly and with substantial corroborative
support, that the "method used in all instances" has been
for him (Daugherty) to "dr[a]w up the proposals for the
contract, present[ed] it to the company, and g[i] ve copies to
the [local bargaining] committee to negotiate on this basis,"
although at times he has consulted with the local bargaining
committee before taking positions with the employer. At
times, but not invariably, International negotiates even before
a relevant local is chartered, but always reports on the
negotiations to the local membership. As International Repre-
sentative, he has on occasion entered into agreements with
management without approval of the local and has "over-
rule[d] a [local] negotiating committee because of what [I]
consider to be the policy of the International." During the
course of negotiations he consults or caucuses with the local
bargaining committee, at the bargaining table he is "usu-
ally ... the leading spokesman" for the employees, the local
bargaining committee "depend[ing] on me to carry the ball
for them."
Shortly before expiration of the parties' corrected 1960
collective agreement, notices of termination and reopener were
given by International and Local 305, by International to
Respondent and Federal Mediation and Conciliation Service,
and by Local 305 to Respondent-the wording thereof (as
testified by Local 305 President Overbey) suggested by
International Representative Daugherty In response to these
notifications (including that by Local 305), International
Representative Daugherty was contacted by Walter Schrodi, an
attorney for Respondent or its corporate parent (Essex), and a
negotiation meeting arranged About 3 negotiating meetings
ensued, in September-October, 1965, attended by Respond-
ent' 7, International Representative Daugherty, and Local
305 ' a With each of these bargaining sessions arranged directly
between Daugherty and Schrodi, and with Daugherty the
employees' principal spokesman, in Daugherty's words
At the outset of the meetings, I had outlined a prepared
statement setting forth the changes, proposals that we
wanted insofar as the contract was concerned, and I sent
these out to the [Local 305] bargaining committee telling
them that these were the things that we wanted to change
so far as the [existing] contract was concerned These were
the benefits that we wanted
The outcome of the parties' Fall 1965 negotiations was a
memorandum-type instrument' 9, captioned "Supplemental
Agreement," which after calling attention to the 1960 agree-
ment and reciting that "the parties are desirous of amending
said agreement," is confined to setting forth the amendatory
provisions (dealing principally with wages, holidays, and
insurance coverages) and stating that the term of the existing
(1960) agreement as thus amended is extended for 3 years, to
October 21, 1968. (As credibly testified by Daugherty and
Overbey that when Sturtz talked to Overbey about part - time employ-
ees, Sturtz admitted having discussed this matter with Daugherty before
acting on it.
17 By Walter Schroth, Essex attorney, Fowler Plant Manager Gerald
Sturtz , Fowler Plant General Foreman John Jones, and, at times,
Fowler Plant Foreman Robert Smith
18 By Local 305 President Stewart Overbey , and that local's
bargaining committee members Rosa Sells, Norma Cadman , and Marge
Flowers
19 G.C. Exh. 7.
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
corroborated by Local 305 Bargaining Committee Chairman
Sells, during negotiations, Daugherty had opposed another
5-year contract and had indicated to Company spokesman
Schrodi that, in accordance with International policy, a 3-year
term was the limit.) This memorandum-type agreement was
signed by Respondent and Local 305 only Upon the record as
a whole, particularly in view of what actually transpired, I
credit Daugherty's testimony that this instrument was not
signed by him "Because it was the understanding between Mr.
Schrodi and myself [Daugherty] that when the complete
contract was typed in its true [i e , complete provisions] form,
then, we would sign the contract." Daugherty in fact did so,
when the 1965-68 contract20 was fully typed in complete
provision from-r.e., the 1960 agreement as amended by the
1965 amendatory memorandum instrument, so that complete
understanding of collective agreement governing 1965-68 was
possible without the necessity of resorting to and comparing
both the 1960 agreement (G C Exh. 5) and the 1968
amendatory memorandum-type instrument (G.C. Exh. 7).
When Daugherty thus signed the completed 1965-68 agree-
ment (G.C. Exh. 8), in January, 1966, a few days after Local
305 signed it, it was backdated to October 21, 1965 (the date
of the short memorandum-type instrument, G.C. Exh. 7). The
format of the 1965-68 agreement , including preamble and
signatures , is for practical purposes identical to that of the
described 1960 agreement It includes a no-strike provision.
Some 5 months later, in May 1966, Frank Gallucci, Essex
Vice-President for Employee Relations ,21 asked International
Representative Daugherty to meet with him. They did so,
privately on May 26, 1966 , near Wabash, Indiana. Gallucci told
Daugherty that because of serious personnel turnover and
recruitment problems at the Fowler plant, upward revision of
wages there was imperative.2 2 Daugherty-who, as well as
Local 305 President Overbey and individual Fowler employees,
apparently had "continually been on the company about the
wages being entirely too low"-readily agreed to the necessity
for raising wages in order to stem a tide of employee
departures to neighboring plants paying more money. How-
ever, Daugherty demurred at the condition "insisted on" by
Gallucci that the existing collective agreement be extended for
a further 2 years beyond its expiration (1968), to 1970,
thereby converting it into a 5-year contract.2 3 Daugherty told
Gallucci that he was under express warning from his superior,
International Regional Director LaPage, that any International
Representative who accepted a 5-year contract would be fired.
When Gallucci offered to call and "take care of Mr LaPage,"
Daugherty said he would acquaint LaPage with their conversa-
tion and the proposal made Gallucci had brought with him to
his conference with Daugherty a written draft "Supplemental
Agreements24 which Gallucci had prepared, and he gave a
copy of it to Daugherty.2 5 In effect it raises the wage scales in
the subsisting 1965-1968 collective agreement and extends it
for somewhat over 2 years In his testimony, Gallucci
conceded that by this proposed modification-extension agree-
ment (G.C. Exh. 9) which he presented to Daugherty at their
May 26 rendezvous, Respondent was "intending to change or
proposing to change," on a proposed effective date of June 18,
"the subsisting collective agreement" (i.e., G.C. Exh. 8).26 The
hourly wage increase proposed in Gallucci's draft was 20¢ at
once, an additional 10¢ in 18 months, and a further 5¢ in
another 18 months ("20-10-5").
In the foregoing respects, the testimonial accounts by
Gallucci and by Daugherty of what transpired at their May 26
rendezvous are without significant inconsistency. At this point,
however, their accounts actually or potentially diverge to the
extent that according to Gallucci's testimony Daugherty
indicated that a contract extension would be "all right . . if
the money is right" or that at any rate he (Daugherty) would
so recommend, whereas Daugherty insists he at no time agreed
or indicated acquiescence in an extension. Considering the
record as a whole; it would seem in this connection that
Gallucci misunderstood Daugherty's words or their import, in
a context of lack of authority upon Daugherty's part to
commit either International or Local 305 to extension of the
existing contract (1965-68) 27 Concededly, according to
Gallucci's testimony, as of this time (May 26), Respondent had
not contacted Local 305 President Overbey or its bargaining
committee or other Local 305 personnel, regarding the wage
increase proposal advanced privately to International Repre-
sentative Daugherty by Gallucci on May 26
When Daugherty reported to his superior, International
Regional Director LaPage, on the May 26 conference with
Gallucci, LaPage, confirming what Daugherty had already told
Galluccr, stated that he "absolutely would not go along with
any extension to the contract.2 8 And if he [i e , Galluccr]
didn't believe it, to have him call Mr. LaPage, and he certainly
20 G.C. Exh. 8. Respondent's former Plant Manager Sturtz as
Respondent 's witness testified that after this full textual copy had been
typed , Company attorney Schrodi instructed him, "You better have
Lyle [Dauherty] sign one copy and send it to me so we know
everybody is going by the same document." Sturtz conceded that it was
this (G.C Exh. 8) which was referred to and utilized by him in matters
of industrial relations contract administration.
2 1 Also of counsel here and formerly General Counsel of Essex
22 Testimony of Gallucci and Plant Manager Sturtz is in accord that
the rising area wage conditions creating the problem had been discussed
at Company managerial and executive levels , eventuating in Gallucci's
described May 26 solicitation and approach to Daugherty. According to
Gallucci's credited testimony , the Company had decided to raise wages
at Fowler "if we could get a contract extension " Testimony of Fowler
Plant Manager Sturtz and of Local 305 President Overbey and
Bargaining Committee Chairman Rosa Sells is in accord that the Local
305 bargaining committee had indicated that wage increases were
necessary to prevent employees from going elsewhere
23 Gallucci testified that in presenting this proposal to Daugherty he
told Daugherty that "we were prepared to give a wage increase, and a
good one , but that I would insist on an extension of the contract as a
condition of putting this money into effect."
24 G.C. Exh. 9
25 it was conceded by Company attorney -negotiator Harvey that at
no time did he give a copy of this proposal to Local 305 President
Overbey.
26 It will be recalled that International was a signatory to that
subsisting agreement (G C. Exh. 8).
27 Gallucci 's testimony shows that Daugherty was careful to
emphasize that International Regional Director LaPage, whom Gallucci
knew to be Daugherty's superior , "might be opposed . . to the
extension part of it", and that Daugherty made it crystal clear that he
would have to "take it up with Mr . LaPage one way or another," this
being not the only occasion on which Daugherty stated his being
required to do so. In this factual envelope alone , Daugherty's
testimonial insistence that he made no promises to Gallucci, but on the
contrary was consistently negative on the matter of contract extension,
is persuasive. Later events , as will be shown, bear this out . Furthermore,
Gallucci's assistant Harvey, who serviced the Fowler plant industrial-
relations wise for management and who appears to have carried the
brunt of the ensuing negotiations, conceded that he (Harvey) neither
told Daugherty that he had "reneged on an agreement" nor had Gallucci
told him (Harvey) so.
28 Testimony of International Representative Daugherty In his
testimony , International Regional Director LaPage added , "at that
rate "
GENERAL TRANSFORMER CO 365
would tell him so." Daugherty conveyed the message to
Michael Harvey, Gallucci's assistant. Later in the day of his
meeting with Gallucci (May 26), Daugherty went to Fowler,
where he showed Gallucci's draft proposal to Local 305
President Overbey and bargaining committee members, point-
ing out to them that International "would not under any
circumstances go along with any extension to the present
contract "
Also late in the afternoon of his meeting with Daugherty
(May 26) Gallucci telephoned and instructed Fowler Plant
Manager Sturtz to call a negotiating meeting for the next day.
When Sturtz expressed doubt about getting Daugherty on such
short notice, Gallucci assured him that Daugherty would be
there. Sturtz thereupon asked Local 305 President Overbey to
contact Daugherty and the local bargaining committee.29
Sturtz testified, "I assumed Mr. Daugherty would be present at
the negotiating meetings.... He had always been present at
the prior meetings."
There ensued 4 bargaining sessions between the parties-
namely, on May 27 and 31 and June 3 and 10-throughout
each of which there were present International Representative
Daugherty and representatives of Respondent and Local
305.30 I find that at the first of these sessions (May 27) the
principal spokesmen and negotiators were Sturtz and
Daugherty, and, at the three subsequent sessions , Harvey and
Daugherty. At the initial session, on May 27, after calling
attention to the necessity for a wage increase because of the
intolerable rate of plant personnel turnover, Sturtz offered
"10-5-5s31 for a 2-year contract extension. Daugherty refused
a contract extension and suggested larger wage increases (as
high as 500 for some employees). At the meetings of May 31,
June 3 and June 10, Respondent insisted upon, but Interna-
tional as well as Local 305 consistently refused, a contract
extension,32 and various proposals and counterproposals were
advanced regarding the extent of the offered and desired wage
increases. At a Local 305 membership meeting following the
June 3 negotiating session, when Daugherty explained the
situation to the meeting and International's opposition to
contract extension, the Company's proposal was "unani-
mously" rejected. When, again at the June 10 negotiating
session, Harvey was offering only an immediate 15¢ wage
increase with the extra increases still tied to a 2-year contract
extension, he was informed that the Local membership had
voted and unanimously rejected the Company's proposal,
whereupon Harvey said, "That was it, that there would be no
more."3 3 Daugherty, displaying the draft agreement (G.C.
Exh 9) he had received from Gallucci on May 26, pointed out
that Gallucci had initially offered more (i.e , "20-10-5") than
Harvey was now offering. Angered, Harvey indicated doubt as
to the authenticity of the document received by Daugherty
29 Testimony of former Plant Superintendent Sturtz, Respondent's
witness
30 With a single exception , participants in these sessions were the
same throughout , namely, International Representative Daugherty, on
behalf of Respondent Michael Harvey (Gallucci's assistant and an
attorney for Essex, present at all sessions except May 27), Gerald Sturtz
(Fowler Plant Manager), John Jones (Fowler Plant Production Control
Manager or Purchasing Agent, now Plant Manager), and Robert Smith
(Fowler Plant Foreman or head of quality control), and Local 305
President Overbey and bargaining committee members Sells (Chairman),
Gick and Wagner Harvey testified that, on instructions of Gallucci, on
May 30, before entering the negotiations on May 31, he (Harvey) from
Chicago telephoned Daugherty at the latter's home in Logansport,
Indiana, and discussed the bargaining to ensue.
31 I e., hourly wage increases of 104 immediately , an additional 54
in 18 months , and a further 54 in another 18 months.
32 Credited testimony of International Representative Daugherty
The company maintained that they had to have an extension to the
contract . I [Daugherty[ consistently told the company that we
could not extend the contract, the International would not agree
under any circumstances to an extension of the contract.
I [Daugherty] had a consistent position throughout all of these
meetings that I would not agree at any time under any circumstances
to any extension to the present contract . . this was the policy that
was laid down to me by my boss of the International Union, and this
is what I adhered to.
. r • r s
Mr LaPage is opposed, to it, the regional director . . this is the
policy of the International Union. We are opposed to more than a
3-year contract
Credited testimony of Local 305 President Overbey shows that he
consistently, even through the private meeting on June 17 between
Respondent and the Local 305 officials (with International not invited
or notified) to be described, "didn't approve of the extension," this also
being the position of Local 305 Bargaining Committee Chairman Rosa
Sells.
Credited testimony of Local 305 Bargaining Committee Chairman
Rosa Sells
And of course we didn't accept [Harvey's position of'15-5-5' with a
2-year contract extension 1. Mr. Daugherty does most of the talking
when we go to the meetings, and he wouldn't accept it-on a two
year extension on the contract ... Mr Daugherty said that if he
extended the contract for two years, he would be automatically
fired.
Credited testimony of Respondent's former Plant Manager Sturtz
With relation to the May 31 bargaining session, Sturtz conceded that
basically "[the] position taken by the International Representative and
Local delegates or representatives was the same at the time , substan-
tially the same , nobody wanted the extension " At the June 3 session,
principal Company negotiator Harvey offered "15-5-5" with a 2-year
contract extension , at the same session , however, in a context of a
"10-10-5" discussion , when Overbey raised the possibility of an
8-month extension , Harvey "said for an 8 month extension we'll give
you 5-3- and 2." Daugherty "was rather bitter" and indicated he
"thought it would be a good idea for the company to quit the plant "
Nevertheless, "Lyle [Daugherty) was steadfastly against increasing the
length of the contract " Sturtz conceded that at the final meeting on
June 10, nobody from Local 305 took a position different from that of
Daugherty
Credited testimony of Respondent 's former attorney -pri ncipal
negotiator and Gallucci 's assistant , Harvey From the very outset when
on May 30 at Gallucci's direction Harvey contacted Daugherty, the
latter told Harvey, "You better tell Frank [Gallucci] that I don' t think
the people want the two year extension " With regard to the May 31
negotiating session , Harvey testified
It was repeatedly stated to me at the meeting that this local union
and the membership would not like a five year contract because one
of the reasons suggested was that they had just come off a five year
contract I think it was echoed by everyone there , Mr. Daugherty
I know said it, [Local 305 Bargaining Committee Chairman] Rosa
Sells had said it, and I am not as positive about the others, but I
think they echoed the sentiments
At the June 3 meeting , " there was consistently discussion that the
people would not want a two year extension because of the five years."
Concededly, Daugherty stated, in the presence of the Local represen-
tatives , that his superior (International Regional Director LaPage) would
fire him if a 2 -year extension were made , and Daugherty continued so
to state many times, never deviating from this position throughout the
negotiations With regard to the June 10 bargaining session, Harvey
testified that Local 305 President Overbey also continued to express
himself in opposition to contract extension, and that , after Harvey was
asked to "give the money without the two year extension." he (Harvey)
replied, "We have nothing more to talk about." Harvey conceded that
Respondent was "consistently after . . a two year extension," with
International (and, it would seem, also Local 305 through the June 10
meeting) opposed thereto
33 According to the testimony of Respondent's former Plant
Manager Sturtz , "Harvey asked the committee to take it back to the
membership for a vote, requested."
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from Gallucci, and stormed out of the meeting, stating that
"The whole proposition is over. I will never come back to this
plant" and that "he [Harvey] would go out and tell the people
that it was the International Union's fault that they weren't
getting more money That the International Union was holding
the wage increases away from the people.' 34 Harvey testified
that, as of the end of the June 10 negotiating session, "It was
never culminated into a formal verbal proposal of 20, 10 and 5
for a two year extension." Also according to Harvey's
testimony, he told the Fowler plant foremen that "15/5 and 5
with a two year extension was the last proposal that was made
that was rejected by the membership and that it appears that
the contract negotiations have broken down."
As of Harvey's (and other Company representatives')
leaving the bargaining session of June 10, no arrangement was
made for a further meeting, nor (except to the extent hereafter
indicated) has Respondent met for bargaining with Interna-
tional since then. According to testimony of Respondent's
witness and former Plant Manager Sturtz which I credit, prior
to the final June 10 meeting, Harvey had told Sturtz, "I don't
believe [Daugherty] . is going to go along with this exten-
sion." Sturtz had earlier expressed similar doubts to Harvey.
Also according to Sturtz, after he left the June 10 meeting
with Harvey, Harvey said to him, "`See, he [Daugherty] still is
not going to recommend that two year extension' . . I
[Sturtz] agreed with him "
It is thus clear that as of the close of negotiations on June
10, Respondent was consistently insistent upon a 2-year
contract extension (to December, 1970) of the subsisting
3-year contract (October 1965-October 1968), with "15-5-5"
its last formal offer for a 2-year extension; and that Interna-
tional as well as Local 305 were rejecting the proposed increase
tied to the proposed extension.
June 16-17
1. June 16 Harvey
We proceed to a description of the activities of Harvey
(Assistant to Gallucci, Essex Vice President for Employee
Relations) on June 16
On Thursday, June 16, either Harvey telephoned Sturtz for
a report or Sturtz telephoned Harvey to report (which is
unclear, since Sturtz varied his version from direct to cross-
examination).3 5 Sturtz (according to his testimony) told
Harvey that the plant was "having a lot of trouble, that the
people had been expecting a raise, now they were beginning to
doubt whether they were going to get a raise or not. There
were threats of mass quitting, some threats of walkout
... even some rumors of possible strike. There were people
not coming into work." At this time, according to Sturtz, it
was the Company's proposed 150 increase (as last offered by,
Harvey) that employees were discussing. Sturtz advised Harvey
to come to the plant, which Harvey did that afternoon. Plant
foremen were summoned, and they confirmed the situation
earlier described by Sturtz to Harvey, who, according to his
(Harvey's) testimony told them, "'It doesn't appear that the
people want a two year extension.' I think those were my
words to the foremen ..I told the foremen that negotia-
tions appeared to be off .." Harvey had Local 305 President
Overbey called to the plant office, where he (Harvey)
conferred with him privately, telling him-in Harvey's own
testimony-that it was Harvey's "impression that the people
did not know what the company's proposals had been, and
that all these people seemed misinformed, and that it had
placed an awkward situation in the plant because of the . .
threats of mass quitting, perhaps even striking.s3 6 Harvey
asked Overbey to call a meeting of the Local 305 membership
"as soon as possible" since it "seemed to be an emergency "
However, also according to Harvey's testimony, he then
ascertained from some foremen that "the situation... wasn't
as mixed up as reported." Harvey settled for a Local 305
membership meeting the following night (Friday, June 17)
when Overbey explained it was impossible to call a meeting
then and there for that night (Thursday, June 16). According
to Overbey, testifying as Respondent' s witness , he (Overbey)
was opposed to calling a meeting and told Harvey so, also
according to Overbey, "he [Harvey] didn't explain it [i.e.,
why he wanted a Local 305 membership meeting called] . .
He didn't say why. . . I [Overbey] didn't know what his
purpose was to be in such a hurry.... I didn't, personally
didn't think Friday [June 17] would be a good night because
that is the night everybody does their shopping ...I did
wonder about it I don't believe I asked him [Harvey, why he
wanted a Union membership meeting called] . . . I didn't see
any need of calling a meeting because the offer hadn't been
raised " Respondent 's witness Sturtz confirmed in his testi-
mony that the "proposal that Mr. Harvey wanted Mr. Overbey
to tell the membership at the meeting of the 17th" was "still
the 15, 10 and 5 with the two year extension" which "had
been made to the union committee on June 10." Sturtz
further testified that before leaving Fowler that day (June 16),
Harvey asked Sturtz to "keep an eye on the situation and give
me a call in the morning." Finally, Overbey's testimony shows
that in connection with his request that Overbey call a Local
305 membership meeting, Harvey also asked Overbey to
contact Daugherty for that-1 e., Friday night, June 17-Local
305 membership meeting, which was done the following
morning (Friday, June 17) by the Local 305 Vice-President.31
2. June 16 Gallucci
We now pass to an account of the activities of Harvey's
superior, Essex Vice-President for Employee Relations
Gallucci, on the same day, June 16.
To begin with, in his testimony Gallucci conceded that
34 Composite credited testimony of General Counsel's witnesses
Daugherty , Sells and Overbey , and of Respondent 's witnesses Sturtz and
Harvey
35 Also according to Sturtz , when Harvey called him on June 14
about "how the situation was," Sturtz "told him that things were sort
of out on the limb, people were wondering what action was going to be
taken next , if any " Sturtz conceded that he did not ask Harvey " if they
were going to put the proposal of 20/10 and 5 [i e , as on Gallucci's
May 26 draft) into effect or make that offer to the union "
36 Harvey conceded on cross-examination, however, that (as shown
above ) he had been informed by the bargainers at the June 10
bargaining session that the Local 305 membership had already voted on
and rejected his June 3 proposal.
37 The foregoing description of the events of June 16 involving
Harvey is based upon the composite testimony , as credited, of
Respondent's witnesses Sturtz, Harvey , Overbey , and Scrocco.
GENERAL TRANSFORMER
Harvey had informed him "that at these [May and June
negotiating] meetings Mr. Daugherty was saying the Interna-
tional wouldn't agree to an extension of the contract "
In the context of the factual situation as thus far described,
Gallucci met in Milwaukee with International officials V P
LaPage (for 10 years Regional Director for Region 8, consist-
ing of 7 states including Indiana, with 14 International
Regional Representatives and about 105 locals under his
jurisdiction, and for the same time Member of International's
Executive Board), Gilbert Jewell (International Secretary-
Treasurer for 10 years), and Richard Humphreys (International
Education and Research Director since 1959), on June 16 for
dinner, after sending a message on the previous day to LaPage,
who was in Milwaukee for an International Executive Board
meeting, that he wished to discuss a pension matter involving
Logansport Local 668. During dinner 38 that night, after
discussing the Logansport pension plan, Gallucci brought up
the situation at the Fowler plant and Gallucci's offer to
Daugherty LaPage pointed out that the existing contract at
Fowler "had only been in existence for about 6 months, that
there are plenty of provisions in that contract to grant these
people the necessary increases that Mr Gallucci was talking
about without extending the contract " LaPage explained
"that we had a contract that was in effect That the contract
had some time to go That it was our position that we
preferred to let the contract run its course, and at that time we
would negotiate on working conditions and wages which we
felt would be adequate at that time " However, Gallucci
insisted on making any wage increases conditional upon the
contract extension proposed LaPage was adamantly op-
posed 3 9 After dinner, on the way back to Gallucci's hotel,
when Gallucci again brought up the Fowler situation, asking,
"Red [LaPage] , what am I going to do with this offer I got in
my pocket," LaPage responded, "If it is pertaining to Fowler,
and if it is still predicated on an extension to the contract, tear
it up " When on arrival at Gallucci's hotel, the latter invited
LaPage in for further talk, LaPage declined, stating, "I haven't
got anything to talk about," and left Upon returning to his
own hotel, LaPage telephoned Daugherty, who denied any
commitment on his part to Gallucci. LaPage then instructed
Daugherty to notify the Fowler plant management in writing
at once that its contract extension proposal was unaccept-
able 40
38 LaPage , Jewell, and Humphreys testified that the discussion
about to be described occurred at dinner , Gallucci testified it occurred
after dinner , on the way back to Gallucci 's hotel In resolving
credibility , to the extent essential , I do not feel called upon to explicate
in detail and attempt to resolve this or similar testimonial inconsis-
tencies, including , to cite but another, whether these gentlemen went
sightseeing before or after their meal
39 Gallucci also indicated that he felt Daugherty had "let him
down" because he "thought " Daugherty had committed himself to the
extension proposed (or, as Gallucci testified , he "personally didn't like
being taken advantage of by one of [ your] representatives," since
Daugherty had "agreed with me he would recommend it" [emphasis
supplied] ) Expressing doubt about this, LaPage said that if true
Daugherty would be fired Gallucci conceded that LaPage also told him
that Daugherty and other staff members knew from LaPage that "I
ILaPage] didn 't like extensions and I wouldn 't have any ", and that
"Daugherty was under specific instruction or orders from [LaPagel not
to enter into or recommend any extension of a contract."
40 This account of the June 16 events involving Gallucci is based
CO 367
3 June 17 Harvey
We return now to Gallucci' s assistant Harvey, who at the
heating denied knowledge at any time prior to the hearing, of
Gallucci's described June 16 activities in Milwaukee or of even
being in touch with Gallucci on June 16 or 17 41
Harvey again went to the Fowler plant on Friday, June 17,
arriving there around or shortly after 3 p.m He had given
Overbey no indication the day before that he would be back
on Friday. 42 At Harvey's direction, Sturtz summoned Local
305 President Overbey and the local bargaining committee
members (Sells, Gick, and Wagner)-all plant employees of
Respondent-to the plant office, in Harvey's words, to "ask
them why they hadn't told their people and why they haven't
stopped this strife and stress . I felt they should go out and
tell their people what transpired " Nothing was said about
contacting Daugherty, who was not there, nor did Harvey ask
why, as Harvey testified, he "didn't expect him [Daugherty]
to be there" and Daugherty's name didn't even come up
"because at this point we were only concerned with stopping
the unrest.... I [Harvey] thought that the committee could
be much more effective by stopping it supply by communica-
ting with the people and telling them what had transpired "
The testimony of Local 305 President Overbey establishes that
the reason Daugherty was not there was that he was not asked
to be there, in view of the precipitate suddenness with which
Overbey and the Local 305 bargaining committee members
were summoned to the plant office in the late afternoon of
June 17 It will be recalled that on the previous day (Thursday,
June 16), Harvey had asked Overbey to notify Daugherty to
attend a Local 305 membership meeting to be called for
Friday night, and had said nothing about any prior meeting
with management on Friday afternoon. As testified by
Overbey, "At that time [Thursday, June 16 meeting of Harvey
with Overbey] I didn't know that Mr Harvey would be back
the following day [Friday, June 17], otherwise I could have
had her [i e , Local 305 Vice-President] notify him
[Daugherty] for that [Friday afternoon, June 17, meeting
with management] too [as well as the Local 305 membership
meeting on Friday night, of which Daugherty was notified
Friday morning]. I did not know that . . 17th, in the
afternoon we, the committee and myself was called in the
office and Mr Sturtz and Mr Harvey was in there That was
upon the composite testimony , as credited , of General Counsel
witnesses LaPage , Jewell , and Humphreys , and of Respondent 's witness
Gallucci
41 All facts considered , including the critical nature of the events of
June 16-17, the complementing roles played therein by Gallucci and
Harvey , the relationship of chief and assistant between the two, the
need for close and careful coordination of activities , the facts as they
actually unfolded, the failure of Gallucci to corroborate this, and also
testimonial demeanor, I am wholly unpersuaded by this denial.
42 According to Sturtz , he telephoned Harvey Friday morning,
reported no change , and advised him to come to the plant . According to
Harvey, he returned on Friday afternoon because Sturtz had informed
him that morning that "the same situation had developed that there was
still unrest " According to Sturtz , when Harvey arrived on Friday
afternoon , Sturtz told him that "Mr Scrocco , the winding foreman had
stated [early Friday] that unless there was something resolved by
Friday night that they were quitting , there were several girls in the
finishing department that had also declared themselves they quit unless
something happened by Friday night."
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prior to the time that they [Strutz and Harvey] went out and
spoke to the people in the plant. That was the time they
brought the offer up to 20/10 and 5 " According to Overbey,
Daugherty had not been asked to this meeting suddenly
convoked by management on Friday afternoon, June 17,
"because in fact we [Overbey and Local 305 bargaining
committee] didn't know about this meeting at the time "
During the ensuing discussion between Harvey and the
Local 305 officials, according to Plant Manager Sturtz, Harvey
asked Local 305 President Overbey, "`Well, what do the people
think of this present proposal of 15-10 and 57' One of the girls
said that, `Well, a lot of the people are in favor of taking this
proposal now rather than taking the chance of losing what has
been offered."' Harvey then "asked, he said, `Well, are they
willing to take the two year extension,"' and bargaining
committeewoman Wagner or Gick replied, "`Yes, some of the
people would take the extension although they weren't
entirely in favor of it "' At this point Harvey asked-still
according to Sturtz-whether "20-10-5" would "settle this
thing and take care of it and would it put you people in a
position to recommend this proposal." Harvey, according to
his own testimony, "then polled each member of that
committee and asked individually" whether they would agree
to a 20-10-5¢ wage raise for a 2-year contract and recommend
it to the Local 305 membership. According to Harvey, the
Local 305 officials agreed to do both, but according to
Overbey, whom I credit, Overbey stated, "the money was
right ... 1 would tell the people to go along with it, [but] I
didn't approve of the extension. I don't know what they
would do on that," and that "personally I was always against
the two year extension" and had "many times" so informed
Harvey, who "knew that very well", and according to Local
305 Bargaining Committee Chairman Rosa Sells, whose testi-
mony-in part corroborated by Overbey on rebuttal-I also
credit in this aspect (in preference to contrary testimony by
Harvey and Sturtz), Sells stated, "Mr. Harvey, I can't go out in
the plant and tell the employees something that I don't believe
in myself." Also in the course of this negotiation, when-
according to Sturtz and Harvey-the Local 305 officials
brought up the possibility of Respondent's reducing its
proposed starting rate or spreading out the probationary
period rates for new employees so as to avoid an unduly slight
pay differential vis-a-vis older employees, the management
representatives agreed to do so Sturtz conceded at the hearing
that the Company proposition finally made to the Local 305
bargaining committee on June 17-with no International
representative there or invited or notified of a meeting-
differed from the last Company proposal on June 10 in two
respects, viz , (1) the Company's wage raise offer was increased
from "15-10-5" to "20-10-5" and (2) the probationary
employee or progression rate schedule was to start at 15¢
instead of 10¢, below the regular rate. Harvey himself
conceded on cross-examination that he was "surprised when
the [June 17 afternoon] meeting [between management and
the Local 305 bargaining committee] converted into a
negotiating session" because "I only had one thought in mind,
it turned out into negotiations."
Following the described session in the plant office on the
afternoon of June 17, Harvey and Sturtz, accompanied by
Overbey and the local bargaining committee, went out into the
plant, where Sturtz addressed the employees in 3 groups,
telling them, according to Harvey, "that an agreement had
been reached by their local committee and management, and
that there was going to be a vote He asked them to go to the
union meeting and vote." According to Sturtz, who did the
talking to the plant employees, he told them "there had been a
lot of confusion during negotiations .. and that we had met
with the committee. We had come to an agreement ..I
explained .. that we were offering 20 cents an hour right
away with the 10 cents in 18 months, another five cents in 18
months with the contract to run another 18 months." On
cross-examination, Sturtz added that he also told the employ-
ees "that the committee had agreed with this proposal and felt
that it should be accepted." Sturtz also testified that he had
told one of the employee groups that "several meetings" had
been held and that "We had just concluded a present meeting.
We had come to an agreement, but I think they should
understand that this was as much money as the company had
to offer I remember stating, `There ain't any more "' Further
according to Sturtz, ". the main questions in the first group
were, `Why was it necessary, we knew that the company was
offering money, but why was it necessary that the company
have the extension?" "I [Sturtz] told them that the company
felt that since they were putting more money into the contract
and they were getting more money right away, that they felt
they needed something in return for it, that the five year sales
forecast had been made. This made it possible to make a
prediction for five years Also the company would be in an
embarrassing position with the rest of the plants if they give
money without getting an extension or something in return for
it." On cross-examination, Sturtz added that he also said, "It
would be embarrassing in the other plants of the corporation if
they would hear and say, `Well, Fowler got 20 cents, we want
20 more cents "' When he was asked by an employee or
employees, "What happens if we don't accept this," according
to Sturtz, "I [Sturtz] indicated to them, `Well, you won't get
the money, probably have to live out the life of the present
contract."' Local Bargaining Committee Chairman Sells testi-
fied credibly that Sturtz also told the employees "to go to the
[Local 305 membership] meeting that was being called that
night and vote to take-to vote to take the proposition that he
had made. It was either take it or we wouldn't get any wage
increase.s43 General Counsel witness Sarault, employed by
Respondent for 7 years, likewise testified credibly that Sturtz
told her group of employees to "vote for this" and that "there
would be no raise unless this was accepted " In the course of
Sturtz' address to the third plant group, a question was raised
as to "whether the increase would apply to the vacation
43 Based upon close demeanor observations while she was under
oath before me at the hearing, I prefer and accordingly credit Sells'
testimony to this effect , over some at least in part conclusionary,
seemingly contrary nontestimomal statements drafted by Harvey and
another Company attorney and presented to her in the plant office for
signature without reading All circumstances considered , under my
observation while under oath Mrs . Sells explained any material
inconsistencies in those statements to my satisfaction However, in any
event , it is not an employee's subjective " impression that I was being
threatened" (as one of Mrs Sells' statements was worded) which
governs , but rather the naturally foreseeable effect of those words. Cf
Zimnox Coal Company, 140 NLRB 1229, 1234, enfd as modified 336
F 2d 516 (C A 6), Eastern Die Company, 142 NLRB 601, 602, fn 2,
enfd 340 F 2d 607 (C.A 1), cert denied 381 U S. 951,Drennon Food
Products Co. 122 NLRB 1353, 1356, enfd as modified 272 f 2d 23
(C A. 5), The Rein Company, 114 NLRB 694, 697-698, The Dalton
Company, Inc , 109 NLRB 1228, 1229 Moreover, even if Mrs Sells did
not feel threatened does not mean that other employees did not.
GENERAL TRANSFORMER CO
pay 44 I [Sturtz] told them I didn't know at that moment, the
question hadn't come up before and we hadn't decided
However, when I left that [third and last] group Mike
[Harvey] and I got to the office and I asked Mike, `What do
you think about that?' He said, `Let's let the increase apply to
vacation pay ' I immediately went out and told Stewart
Overbey, also told my foremen to inform the people in their
areas." Concededly, no explanation or statement was made to
the employees regarding the position or lack of participation
of International.
These management speeches, held at Company expense just
before quitting time, were almost immediately followed by the
Local 305 membership meeting called at Harvey's insistence
Notification of the meeting was by word of mouth that day
(Friday, June 17) No written notice was furnished or
posted'45 since, as Local 305 President Overbey testified, "We
didn't have time." As credibly described by several wit-
nesses ,46 there was "quite a bit of confusion" at the meeting,
which was attended by about 70 persons milling around in 3
separate but adjoining or interconnected rooms and a hallway
in a dwelling-type house, with "everybody . - talking at the
same time, trying to get the vote started so they could get out
of there in a hurry Some of them voted and left right away "
Local 305 President Overbey, who "presided," merely pre-
sented the proposal for a "yes" or "no" vote, with neither
explanation nor recommendation. International Representative
Daugherty, who was present, attempted over the din to explain
International's opposition and refusal to agree,4 7 but, accord-
ing to Local 305 Bargaining Commitee Chairman Sells, "there
was too much talking in the room that I [Local 305 Bargaining
Committee Chairman Sells] was in so that I couldn't even hear
him [Daugherty] " Nevertheless, Respondent's latest
proposal-i e., the one made to Local 305 personnel by Harvey
that afternoon (Friday, June 17) in the plant manager's office
in the absence of Daugherty,48 as subsequently improved to
the plant employees directly by Plant Manager Sturtz in
connection with his plant speeches just before they voted'49
was approved by a vote of 60-9 of the persons there and voting
under the described circumstances.50
Upon learning of the "outcome of the vote . on the
company's proposal. [that] it had been accepted 60 to 9,"
Sturtz informed Harvey, who "told me [Sturtz] to make up a
contract on it The supplement on it, and to have the
committee sign it " Sturtz did so, and on the following
Monday (June 20) he called Local 305 President Overbey and
its bargaining committee to his office to sign the document he
presented to them, which they had never seen before. Sturtz
told them that "so long as we had voted on it, we were
44 As explained by Bargaining Committee Chairman Sells, vacation
pay is apparently calculated as of May 1, although the proposed pay
increase was to be retroactive only to June 13 Sells testified credibly
that she first learned of this added benefit when thus unilaterally
announced by Sturta on June 17
45 Cf Local 305 bylaws (Resp . Exh 37), art VII, §2, and art XI
It is not implied here that written notice is essential
46 Le., Sarault , Sells, Daugherty , and Overbey
47 Daugherty testified that he "explained to the people what kind
of a bad proposition it was I definitely told them that the International
could not agree to any such proposition that the company offered, and
we would not accept, ratify , or approve , or would not even sign the
contract "
48 Le , "20-10 -5" with a larger differential of pay of probationary
employees The management proposal voted on by employees differed
from Gallucci's May 26 proposal to International with regard to the pay
differential for probationers, as well as retroactivity application of the
369
supposed to sign the contract." Overbey had informed
Daugherty of what had happened, and when he asked
Daugherty what to do, the latter "told me [Overbey] then
that I would still have to sign it, but he [Daugherty] didn't
have to, but I did "
At no time has this document been presented to Interna-
tional for signature . On the date this document was signed by
Respondent and Local 305 (June 20), Daugherty dispatched a
registered letter to Respondent (with a copy to Local 305
President Overbey), stating
The International Union, Allied Industrial Workers of
America, AFL-CIO will agree to wage increases without
any extention [sic] to the term of the contract
So that there is no misunderstanding The Interna-
tional Union, Allied Industrial Workers of America, AFL-
CIO being a party to the Contract signed October 21, 1965
and running to October 21, 1968 will not agree to any
extention [sic] to said Contract. The International Union
will not honor or recognize any agreement which extends
the Contract beyond October 21, 1968
The International Union fully intends to negotiate a
new Contract about 60 days prior to October 21, 1968.
This letter was answered by Respondent on June 27, by
Harvey on the letterhead of Essex, acknowledging receipt of
Daugherty's letter and stating
Please be advised that there is no misunderstanding on the
part of General Transformer or its employees (Local No.
305 of the International Union, Allied Industrial Workers of
America, AFL-CIO) Our present Labor Agreement was
bargained in good faith, ratified, and executed by the
Company and its employees. This agreement provides for
wage increases during the life of the Agreement and expires
on December 13, 1970 The Company intends fully to live
up to the terms of the Agreement and our honest
understanding with our employees
Daugherty, upon his request to Overbey, was furnished a
copy of the agreement executed June 20 between Respondent
and Local 305. Executed as of June 18, the agreement is in
format essentially a purported modification agreement of the
existing October 21, 1965, collective agreement (G.C. Exh 8)
subscribed by Respondent, Local 305, and International,
extending it for somewhat over 2 years at higher stipulated
rates of pay and provisions which, although substantially those
set forth in the Gallucci proposal of May 26 to Daugherty
(G C. Exh 9), are nevertheless not precisely the same.' i
As the subsisting collective agreement (G C Exh 8) which
it purports to modify, it also contains a provision forbidding
unilateral reopener-but, of course, in this case , unlike the
proposed new rates to vacation pay Of course, it was higher in amount
than the last management proposal made by Harvey at the last
bargaining session attended by International and Local 305 on June 10
49 1 e , applying the proposed pay increases retroactively to vacation
pay This feature had never been taken up with International or with
Local 305
50 International Regional Director LaPage testified that this Local
305 meeting was improperly called , that only 69 of 100 employees
voted-some possibly more than once , and that other local 305
members had requested International to intercede for them here under
the circumstances
Si I e , "20 -10-5," with 20V retroactive to June 13 , and larger
differential on probationers ' pay As shown above , Respondent also
announced to its employees before they voted that the new wage scales
would be applicable retroactively to vacation pay to May 1, however,
this is not shown in the written agreement
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
subsisting agreement (G.C Exh 8) which it purports to
replace, it is not subscribed by International. This agreement 5 2
between Respondent and Local 305, captioned "Supplemental
agreement entered into this 18th day of June, 1966," recites
that "Whereas, the parties decided to terminate their October
21, 1965 agreement and enter into a new agreement as of this
date":5 3
The October 21, 1965 agreement shall be terminated
Except for the supplemental agreements the October 21,
1965 agreement will remain in force until December 13,
1970, and from year to year thereafter unless amended or
terminated in the manner provided.
At no time has International signed or approved this
agreement in any way Daugherty informed the Local 305
membership that International does not and will not sign or
approve it. Some time subsequently, at another plant (Peru),
when Harvey brought up the Fowler situation again,
Daugherty reiterated to him that International's position
would not be changed and that it "absolutely would not go
along with that contract, extension to it." Respondent has
placed into effect the pay increases and other benefits called
for by its terms.54 On August 4, International filed the charges
resulting in issuance of the complaint herein
Execution of the June 20 (i.e., dated June 18) agreement
between Respondent and Local 305 did not put an end to
International's regular service functions at Fowler These have
continued. For example, on March 20, 1967 Daugherty
conferred with Respondent's General Foreman Jones and
Local 305 officials at the Fowler plant office, with Daugherty
personally first preparing and distributing the agenda for that
meeting to management as well as Local 305 officials, subjects
included an employee grievance, production rates, merit
increases and seniority for female employees, and parking lot
repairs. Principal if not practically exclusive spokesmen were
Jones for management and Daugherty for employees. Accord-
ing to Daugherty's testimony, at no time since June 18 has
Respondent or Local 305 disputed or questioned Interna-
tional's status as employees' bargaining representative.
C Concluding Findings and Rationale
As indicated above, the basic legal issues here for determina-
tion are whether Respondent violated Section 8(a)(5) and
(1) of the Act by (1) not bargaining with International since
on or about June 10 and (2) threatening employees that it
would not raise their wages if they did not (under the
indicated circumstances) approve its proposed 2-year extension
of their subsisting 3-year collective agreement subscribed by
Local 305 and International.
1. International's Certificated Bargaining
Representative Status
Our approach to the questions presented is from the point
of departure of the Board's certification. A cornerstone of the
Congressional plan for pacification of industrial unrest is the
system of Board-supervised secret elections established by the
Act. As a consequence of such an election, in which
Respondent's employees elected International, the Board in
1960 issued its certificate to International as the exclusive
collective bargaining representative of those employees. There
has been no amendment or other change of that certification
by the Board Under established principles, for one year
following such official certification there is a conclusive, and
thereafter a rebuttable, presumption that the certified Union is
in fact the exclusive collective bargaining representative of the
employees covered by the certification. Brooks v NL.R B.,
348 U.S 96, N.L.R.B v Gulfmont Hotel Company, 362 F 2d
588 (C.A 5), New England Lead Burning Company, Inc., 133
NLRB 863, 867; Celanese Corporation of America, 95 NLRB
664,671-674, cited in Brooks v. N.L.R.B., supra As is well
known, a presumption operates legally as a substitute for
proof, in other words, it operates to establish as a fact that
which would otherwise have to be proved in a conventional
way through evidence IX Wigmore, Evidence Secs 2490-2491
(3d ed 1940) Thus, the presumption, when applied, shifts the
burden of proceeding with proof to the other side, here, to the
party (Respondent) disputing the representative status of the
Board certificate holder (International) N.L.R B. v Gulfmont
Hotel Company, supra In this connection, it may be observed
at the outset that Local 305-which Respondent here contends
is the exclusive collective bargaining representative of the
employees-although joined here as a party, has not appeared
and does not here contest International's status as exclusive
collective bargaining representative as alleged in the complaint.
At no time has there been any official challenge, by Respon-
dent Employer or otherwise, of International's certification,
such as by a petition for decertification or for election, nor has
there been any application, by Local 305 or otherwise, to
amend the certification of International. It is clear that any
such action would have had to have been on notice, with
opportunity to oppose, including in one form or another
opportunity for affected employees to make known their
desires Amendments to certifications are not granted mechan-
ically or as a matter of course (cf., e.g., M. A. Norden Co., Inc.,
159 NLRB 1730, Yale Manufacturing Company, Inc., 157
NLRB 597, and North Electric Co , 165 NLRB No. 88, for
otherwise that industrial peace, bottomed on employees' free
choice of bargaining representative, which is a key objective of
the Act, would be reversed to a travesty.
2. Did International "Relinquish" Its
Bargaining Representative Status to Local 3057
The fact that a representative holds Board certification does
not preclude appropriate remedy to change or substitute a
representative, where concerned employees so desire, as, for
example, in case of abandonment, inaction, or malfeasance. As
indicated, certifications may be withdrawn or amended. Nor
does certification, particularly after expiration of the 1-year
period following certification, per se bar effective recognition
by the employer of a representative other than the certificate
holder; but such recognition is at the employer's risk to justify
in case assailed, most particularly during the 1-year postcerti-
fication period, when the described presumption is "irrebut-
table." Here, with a certification date of September 12, 1960,
52 GC Exh . 12. 54 The foregoing account of June 17-20 and succeeding events is a
53 There is neither evidence nor contention that International at any composite of credited testimony of Respondent 's witnesses Harvey,
time terminated or agreed to terminate the 1965 agreement The Sturtz , and Scrocco , of General Counsel's witnesses Sells, Sarault,
evidence is clearly to the contrary . Daugherty , and LaPage , and of Overbey both as Respondent 's witness
and as General Counsel's rebuttal witness
GENERAL TRANSFORMER CO. 371
Respondent asserts (Answer, par. "7") that the certificate
holder (International) has not been the employees' bargaining
representative since October 26, 1960, 6 weeks after the
certification.
Respondent bases this conclusion on the contention that
almost immediately after having won Board certification,
International "relinquished" that status to Local 305 on
October 26, 1960, the date when the parties (Respondent,
Local 305, and International) entered into their first signed
collective agreement Our inquiry essentially assays the totality
of the parties' behaviorisms during the 6 years between
certification and this case, in order to determine whether they
fairly bespeak the International relinquishment which Re-
spondent insists took place
Respondent insists that International "relinquishment" of
its representative status and Local 305 "investiture" with that
status, occurred in October 1960, almost immediately after
International's certification, and have continued since then. In
so contending, Respondent relies heavily on (a) miscellaneous
union campaign leaflets, (b) provisions of International's
constitution and other lntraunion documents, (c) the parties'
intermittent relations between the International's Board certi-
fication and this case, (d) the parties' bargaining behaviorisms;
and (e) the formats of the parties' collective agreements. These
will be separately considered.
a. Miscellaneous Campaign Leaflets
Respondent has produced a miscellany of campaign leaflets
said to be of the same ilk as those utilized in the Fowler plant
organizational campaign.' 5 It is difficult to see how campaign
literature antedating International's certification can constitute
or evidence relinquishment of a status which International, the
alleged relinquisher, had not yet attained; nor how even later
vintage campaign literature at other locations establishes
relinquishment of International's 1960 Board certification
status based upon the particular form of election held and won
by International at Fowler Although, conceivably, such
an recertification campaign literature could contain promises to
relinquish certified bargaining representative status if achieved,
the campaign leaflets here contain no such undertaking by
International. Presumably the products of a variety of authors
not shown to be spokesmen for International, the campaign
pamphlets in question are perhaps characteristically imprecise
They cannot fairly be said to bind International to an
obligation to forego any certificated bargaining representative
status which International might gain at the Fowler plant. The
references or even emphasis upon ultimate or final decisions
being in the hands of the membership itself seem clearly to
refer to-or at the least are consistent with the interpreta-
tion56 that it refers to-ratification by membership of con-
tracts which have been negotiated for membership subject to
membership's approval. These do not constitute an under-
taking or representation by International that its Locals are
free to negotiate and enter into any kind of agreement
whatsoever, without limitation-including agreements thor-
oughly opposed to policies and principles for which Interna-
tional stands and fights,5 7 nor do they constitute an under-
taking or representation by International that local members
may vote upon and approve management proposals which the
bargaining representative has not negotiated or which it is not
willing to submit to the local membership for approval.5 8
b. International Constitution and Other
Intraumon Documents
Respondent also here relies upon various provisions of
International's constitution and related documents5 9 as estab-
lishing or evidencing reqhnquishment by International of its
bargaining representative status.
At the outset it may be observed that Respondent's witness
Wesley Wildman, former Essex labor counsel who on behalf of
management negotiated the initial 1960 collective agreement
now contended to have relinquished International's certifica-
ted status, conceded at the hearing that he was unaware of and
did not inquire into the contents of the International
constitution when he negotiated the 1960 agreement 6 0
55 In view of stipulations and concessions regarding the general
character of these leaflets as fair samples , they were received in evidence
as reflecting organizing patterns and procedures engaged in by Interna-
tional The Charging Party's motion to expunge these exhibits from
evidence is denied
56 As, for example , indicated and arising from credited testimony of
Respondent 's witness , International President Griepentrog
57 Id.
58 Thus, for example, Release No. 525 (1951) of International's
predecessor UAW, introduced into evidence by Respondent (Resp Exh
2), while emphasizing the essential local role in "approval " of collective
agreements , also describes the function of the parent organization (now
International ) " it is important to screen out preposterous and
meaningless proposals and to negotiate only on proposals that have
some merit and can be justified [sic] The proposals are then submitted
to the local union for approval ... " (p. 1, emphasis added).
Essex Director of Labor Relations Schrodi, testifying as Respon-
dent's witness , conceded that when , at numerous times during negotia-
tions, International Representative Daugherty ( as well as other Inter-
national Representatives) told him that "it is not up to me, it is
whatever the people want. We'll take it back and let the people vote on
it. If the membership approves it, you've got a deal ," it was within the
context of International approval of a proposition which International
had bargained and was willing to submit to the final approval (i.e.,
ratification) of the rank-and-file membership. It seems clear that no
bargaining representative is required to submit to the rank -and-file
membership for their "approval " or "disapproval" every proposition
which the employer makes to the bargaining representative , including
those which the bargaining representative does not consider to merit
submission to the rank-and-file membership for "approval" or "ratifica-
tion " The employees ' bargaining representative is not a mere echo or
communication conduit for the employer. N.L R B. v Wooster Division
of Borg-Warner Corp , 356 U.S. 342, 350 (quoted infra); Roesch
Transportation Company, Inc, 157 NLRB 441, General Electric
Company, 150 NLRB 192, 194, North Country Motors, Ltd, 146
NLRB 671, 674 See also, Paranite Wire & Cable Division , Essex Wire
Corporation, 164 NLRB No 48
59 The objections to receipt in evidence of these exhibits (i.e , Resp
Exhs. 2, 3, 6, 7, and 16 -24), received subject to motion to expunge, are
overruled and the Charging Party's motion to expunge them from the
record is denied
60 Respondent 's union "constitutional " argument based on its
current interpretations of International 's constitution is suggestive of an
afterthought and employer attempt to assert employees ' alleged rights
against their bargaining representative , in attempted justification of the
employer's own conduct "The underlying purpose of this statute is
industrial peace. To allow employers to rely on employees ' rights in
refusing to bargain with the formally designated union is not conducive
to that end , it is inimical to it . Congress has devised a formal mode for
selection and rejection of bargaining agents and has fixed the spacing of
elections , with a view of furthering industrial stability and with due
regard to administrative prudence ." Frankfurter , J., in Brooks v
N.L.R.B., 348 U.S 96, 103 Cf. Paramte Wire & Cable Division, Essex
Wire Corporation , 164 NLRB No 48, General Electric Company, 150
NLRB 192, 194-195; Independent Stave Company, Inc, 148 NLRB
431, 436, enfd 352 F.2d 553 (C.A. 8), cert. denied 384 U.S. 962,
North Country Motors, Ltd., 146 NLRB 671, 674
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We nevertheless proceed to consideration of this contention
on its merits, particularly since if there were a constitutional
bar to International's acting in the status of certificated
bargaining representative, such a bar might evidence absence of
capacity on International's part so to act. However, close study
of the constitution and related documents (e.g., convention
proceedings amendatory thereof) fails to establish such a bar
While it is true that constitutional provision has been afforded
for approval by local membership of collective agreements, in
view of other constitutional provisions and the record as a
whole (including, specifically, credited testimony of Inter-
national President Gnepentrog, testifying as Respondent's
witness) it seems clear that these provisions: (1) neither
preclude International from acting as certified bargaining
representative nor require relinquishment or transfer of that
power or status by International to any of its locals ,6' (2) vest
a visitorial power in International over the subordinate locals
which it charters,6 2 (3) comprise a guarantee to rank-and-file
members that they will have the final "yes" or "no" verdict
with regard to proposed agreements negotiated for them by
their authorized bargaining representative (with or without
their participation, active or passive, in the negotiations
themselves), so that no such agreement is foisted upon them
without their approval-Le., that rank-and-file members have
the power of approval in the sense of ratification; (4) do not
authorize rank-and-file members of local unions to enter into
direct negotiations with management so as thereby to displace
International as certified bargaining representative ,6' (5) do
not authorize rank-and-file members or local unions to enter
into agreement with management so as to bind Interna-
tional,64 (6) do not authorize rank-and-file members of local
unions to enter into any agreement with management contrary
to International's constitution or basic policies and prin-
ciples,65 (7) do not exclude International from acting or
continuing to act as bargaining representative, regardless of the
format of the bargained agreement, including the forms which
signatures thereon will take.66
Accordingly, even aside from the fact that Respondent did
not place cognitive reliance upon International's constitutional
or related intraunion provisions in connection with the issues
now raised '6 7 the provisions themselves do not furnish
persuasive support for the position here urged upon the basis
thereof 68
c Parties'Intermittent Relations between Board Certification
of Intemattonal and This Case
Respondent further urges that the actual relationship
between itself, International, and Local 305 since Board
certification of International in 1960, establishes relinquish-
61 As indicated, for example , by credited testimony of
Respondent 's witness, International President Griepentrog.
62 See , e.g , Resp Exh . 3, arts . 7 03, 7 .04, 7.05, 7 08, 7.10 (pp
27-31 ), and 32 04 ( pp. 89 -90) International Representatives are
empowered not only to attend and "actively participate in," but also to
call meetings of locals and to "convey any instructions of the
International President and/or the Regional Director " (Id., art. 8 03,
pp. 34-35, emphasis added ) International has power to expel or
suspend officials of subordinate bodies , with International 's proceedings
taking precedence over the local body's proceedings in such cases. (Id.,
art 13 09, pp . 45-46 ) No member tried by International may thereafter
be retried by the local. (Id., art. 19.05 , p. 59 ) Failure to comply with a
lawful International decision or order is ground for suspension,
expulsion , or revocation or suspension of a local charter. (Id., art.
13 10 , p 46 ) "The International Executive Board shall protect all
Local Unions which have succeeded in establishing higher wages, more
favorable conditions , and generally superior agreements, against the
signing of inferior contracts by other Local Unions in plants doing
similar work ." (Id , art. 16.03 , p. 55.)
Under these provisions , and as indicated by credited testimony of
Respondent 's witness , International President Griepentrog , and General
Counsel 's witness , International Regional Director LaPage, the nature of
the sanction , if any , visited by International upon an offending local is
discretionary with International . Obviously , as here, International may
file an unfair labor practice charge against the employer , as here, the
offending local may be joined as a party in a resulting Board proceeding.
63 E.g ., "No member of the International Union shall work for
lower wages , longer hours , or conditions inferior to those fixed by
agreements of the International Union ." ( Resp . Exh. 3, art. 3 .05, p 12.)
64 Resp. Exh 3, art 31 .03, pp. 85 -86, and conceded at hearing by
Respondent
65 "Special or regular membership meetings of the Local
Union ... shall be the highest authority for handling contracts and
grievance problems within the plant in conformity with this Constitu-
tion and Local Union bylaws ." (Resp Exh. 3 , art. 1604, p 55,
emphasis added .) Local Union charters , issued by International, may
"be used by the Local Union only as long as said Local Union and its
members comply with the laws of the International Union." (Id., art.
23.01 , p. 66, emphasis added ) The Local charter , which may be
revoked or suspended by International for infraction , is in prescribed
form stating that its "conditions . are such That said [Local] Union
forever and under any and all circumstances shall be subordinate to and
comply with all the requirements of the Constitution, Bylaws and
General Laws or other laws of the International Union, Allied Industrial
Workers of America , as they may , from time to time be altered or
amended , That said [Local ] Union shall , for all time , be guided and
controlled by all acts and decisions of the International Union , Allied
Industrial Workers of America , as they may from time to time, be
enacted " (Id , art 23, pp 66-68.)
66 Respondent , urging that International "has no power to enter
into an agreement" (Tr , p. 115 ), cites a 1947 UAW 5th Biennial
Convention amendment (Resp Exh 7, p. 165 ) to Section 7 of article 7
("Duties and Authority of the International Executive Board") of the
1945 Constitution (Resp. Exh . 6) of UAW ( International 's predecessor
organization), whereby , in relation to powers of the Executive Board,
the following bracketed portion was deleted "power to adjust disputes
between employers and employees [ and to enter into agreements with
employers , subject to ratification by the membership involved] " I do
not share the apparent view of Respondent 's counsel that the
elimination of the bracketed words had that effect , particularly where,
as here in 1960 , international is certificated by the Board as exclusive
bargaining representative . I am confirmed in this view (reached
independently ) by credited testimony of Respondent 's witness
Griepentrog , International President since 1957 and an official of
International and its predecessor for over 30 years, who indicated the
practice has been unaffected by this constitutional change It is clear
that elimination of the constitutional requirement did not proscribe
continuation of the practice.
67 Furthermore , "Respondents are hardly in position to insist that
the [Local] Union and its International should apply stricter or
different rules of conduct in their dealings with each other than they
themselves ( i.e., Union and International ) chose to observe N.L.R.B. v.
National Mineral Co., 134 F 2d 424, 426-427 (C.A. 7), N.L.R.B. v
National Seal Corporation , 127 F.2d 776, 779 (C.A 2), Pueblo Gas &
Fuel Co v N.L.R.B , 118 F .2d 304, 307-308 (C.A. 10), N.L.R.B. v.
Star Publishing Co., 97 F 2d 465, 470-471 (C A 9), Lane Cotton Mills
Company, 9 NLRB 952, 967 -968, enfd . 111 F.2d 814 (C.A. 5), cf.
N.L.R B. v Deena Artware, 198 F.2d 645, 652 (C.A. 6)." The
Washington Post Company , 165 NLRB No. 118 , TXD, fn. 42. See also
Independent Stave Company , Inc., 148 NLRB 431, 436, enfd 352 F.2d
553 (C.A. 8), cert. denied 384 U.S. 962.
68 For reasons to be shown, even if International approval of a
Local contract is not required -constitutionally or otherwise-it would
not follow that the employer is thereby freed from obligation to bargain
with International as the Board -certified bargaining representative of
employees . Whether the Local would be bound by such an agreement is
here beside the point, since , if it were unsanctioned by International the
latter clearly would not be.
GENERAL TRANSFORMER CO 373
ment by International of its bargaining representative status. In
my view, the facts establish the contrary. As has been shown
and found, at all times until International and Respondent
reached the parting of the ways, so to speak, on June 10 and
16, 1966, International carried the onus of bargaining from
start to finish on behalf of the employees, and Respondent as
well as Local 305 officials so recognized It was Respondent
itself which, at the outset of each contract negotiation,
including Gallucci's May 26 attempted contract reopener,
sought out International in order to set the stage for
negotiations to ensue. International formulated and prepared
bargaining demands and bargaining session agenda. Even in
1967, subsequent to the entry of Respondent with Local 305
alone into the June 18, 1966 agreement here complained of,
Respondent continued to engage with Interantional in contract
administration problems And the simple fact is that Inter-
national has at all times up to the aborted June 10 bargaining
session, been present as a vocal, active, and predominant
bargainer for the employees The further facts of the matter
are that at no time before this case has Respondent questioned
that status, nor does Local 305 question that status even now.
As shown above, the actions of the parties hardly admit of any
construction other than that Respondent regarded and treated
International as the bargaining representative until Interna-
tional's supposedly refractory refusal to accede to Re-
spondent's insistence on a 2-year contract extension as a
condition to a wage raise,69 at which time Respondent
promptly and deliberately proceeded, for the first and only
time since 1960, to bypass International and negotiate without
International
convenient ploy in the process of carrying water on both
shoulders which is indulged in by all sides so as not to block
off avenues of tactical retreat. Furthermore-even without
resort to the truism that such loose words do not override jural
requirements and relationships established by Board certifi-
cation, organizational constitutions, and franchises-similarly
to the campaign leaflets and International's constitution they
invite the reasonable interpretation that the International
Representative does not impose or foist his views on the Local
membership so as to bind them to an agreement sight
unseen.70 The converse, namely that the Local membership
has the power to impose or foist its views on International,
does not follow. Applying this interpretation, for example,
International could not compel the local membership to accept
a collective agreement requiring them to work for less pay than
the members are willing to work for, on the other hand, the
Local membership could not, even through unanimous vote,
compel International to agree to or be bound by, nor to
tolerate on behalf of itself or other locals,7 i a contract, say,
for 50 years, or, intolerably ("unacceptably") depressing area
wage standards to the serious detriment of sister locals, or,
ousting and undermining International from its constitutional
roles, relationships, and powers vis-a-vis its own local(s). The
evidence fails to establish that the negotiating styles and
techniques utilized by International in its bargaining relation-
ships with Respondent negated International's continuing
capacity to act as Respondent's employees' bargaining repre-
sentative. Cf General Electric Company, 150 NLRB 192, 193,
194-195, 196, 263-266, North Country Motors, Ltd., 146
NLRB 671, 674.
d. Parties ' Bargaining Styles and Techniques
Respondent points to certain statements attributed to
Daugherty, as well as other International representatives,
tending to minimize his role in collective bargaining as merely
"advisory," since the Local membership have the ultimate
power to accept or reject. The argument is of the same
character as that already dealt with involving campaign
literature and International's constitution. Without attempting
the impracticable task of recreating the particular circum-
stances under which the particular words were uttered, even on
a rough but fair running view they cannot be said to be
determinative, nor even substantially assistive, here. Funda-
mentally, they are straws which cannot resist the gusts of
reason . For example, it is well understood that in the easy
ecumenism of industrial relations, more specifically in col-
lective bargaining, such expressions may be no more than a
69 Credited testimony of International officials indicates that in
more recent years , because of inflationary and other factors , Interna-
tional has as a matter of general policy been opposed to contracts
having a term as long as 5 years However, the proof also shows that this
policy may not have been inflexible . Since contract duration is only one
of many terms to be negotiated , it is evident that as part of the regular
peristalsis of negotiation numerous interrelated factors may be involved.
The Charging Party's counsel bluntly conceded at the hearing that it "is
not the Charging Party 's position per se that a five year contract is
sub-standard you put enough money on the line and we ' ll take a
five year contract If there is not enough money there they don't like
to take a five year contract ." However, as he also stated, "The issue in
this case is who you are bargaining with " Counsel 's latter observation is
the key As Mr Justice Burton in Borg-Warner and Judge Leventhal in
Steelworkers (Roanoke), both quoted, infra ("3 Respondent's Bypass
e. Parties' Collective Agreement Formats
We move to consideration of Respondent's contention that
the formats of the collective agreements here established
"investiture" of Local 305 by International as the employees'
exclusive collective-bargaining representative.
Our course toward analysis of Respondent's contention of
what it terms "contractual investiture" may safely be set by
the compass direction that Board certificates are not negoti-
able instruments.7 2 Nor, for a plenitude of reasons well
understood by practitioners at the Labor Bar, are collective
agreements "contracts" in the usual garden-variety sense, see,
e.g., J.I. Case Co v. N.L R B , 321 U.S 332, 334;N.L R B. v.
George E. Light Boat Storage, Inc., 373 F.2d 762, 766 (C.A
5), Lozano Enterprises v. N.L.R.B., 327 F.2d 814, 818 (C.A.
9), Cox, The Legal Nature of Collective Bargaining Agree-
ments, 57 Mich L. Rev. 1 (1958). "In enforcing the National
of Union "), have warned , it is the employer 's reaching over the head of
its employees ' certified collective bargaining representative so as to deal
directly with the employees, thereby driving'a wedge between employ-
ees and their representative , which is the core element of the statutory
violation, not whether the collective bargaining representative was
reasonable in his bargaining demands or techniques To hold otherwise
would be substantially to deprive employees of the very benefit of
collective bargaining action and expertise which it was the statutory
purpose to insure , and to tilt back to prestatutory imbalance the scales
of economic bargaining power which it was the Act's central purpose to
bring into closer equilibrium.
70 For example , Resp . Exh. 8 (campaign literature , p. 2) emphasizes
the absence of a "national agreement" which is "imposeldl " on locals.
71 As indicated by credited testimony of Respondent 's witness,
International President Griepentrog.
72 Neither are they, as indicated, sacrosanct or impregnable
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Labor Relations Act, it is not necessary to import either
Robert's Rules of Order or common-law intricacies " Feinberg,
J., in N.L.R.B. v. M & M Oldsmobile, Inc., 377 F.2d 712, 717
(C A. 2).
As shown, until the June 18, 1966 agreement restricted to
Respondent and Local 305, preceding collective agreements7 3
were subscribed by Respondent, Local 305, and International.
Respondent argues that the failure of the preamble to
enumerate International and the presence of the words
"Approved as to content and form" preceding International's
subscription at the end of the agreement, rule International
out as a "party" to those agreements. This is by no means
clear, particularly since the subscription is immediately pre-
ceded by words identifying the subscribers as "parties." Even
in the absence of those words, however, it may not be assumed
that International's subscription, as Respondent now contends,
served merely a "ceremonial" and no other purpose. "Ap-
proved as to form and content" coupled with an authorized
signature may arguably be regarded as a form of acceptance
sufficient to result in contractual obligation, at least to the
extent the contract, interpreted in the light of the overall
relationships and dealings of the various subscribers, contains
73 Excluding the temporary memorandum-type instrument of
October 21, 1965 (G C. Exh 7), which was superseded by the
full-length agreement (G C Exh 8) executed shortly thereafter and
backdated to October 21, 1965
74 Cf The Crescent Bed Company, Inc., 157 NLRB 296.
V Q LaPage, for the past 10 years International 's 8th Regional
Director for 7 States including Indiana , with 14 International
Representatives under him and around 105 local unions , and for 9 years
before that an International Regional Representative , testified that
"when I was hired by the International Union, we were given to
understand that the right and legal way to identify our signatures on
contracts was to write `approved as to content and form.' Then were to
sign our name and identify ourselves as regional representative or an
International representative of the International Union [I was informed
of this by] . the boss when he hired me , Mr Earl Heaton [and
also[ our attorneys - Goldberg, Previant and Padway." Upon
becoming Regional Director , LaPage identically instructed his subordi-
nates International President Griepentrog , an official of International
and its predecessor for over 30 years, testified that in those 30 years,
during which agreements have been negotiated by International (or its
predecessor) naming the employer and local union in the preamble,
there has been "never . a company that has told us that that
abrogated our recognition " I unqualifiedly reject as unworthy of belief
the testimony of Respondent 's witness Meyers, a confused, peripatetic
former International Regional Representative many years ago-
subsequently employed in the Industrial Relations Department of
Fruehauf Trailer Company, as a county surveyor, and now as a salesman
for a bridge and culvert company-that in subscribing collective
agreements on behalf of International "approved as to content and
form" his "function was primarily that of a proofreader" to find
"clerical type errors " or "typographical errors " Meyers displayed little
effort to conceal his hostility toward International here. His quoted
testimony was preceded by an admission that in subscribing the
agreements in this fashion he had "reviewledl the contract with regard
to ... the policy of the International as reflected in the contract "
75 In this connection , it may be of interest to note that in an
Indiana Federal court suit in 1962 seeking damages on behalf of Essex's
Logansport " RBM" facility (at which Local 668 and not International
was the certified bargaining representative ) against International and
Local 668 for breach of a contract similar in format to the one here
involved (signed by Local 668, and by Daugherty for International
"Approved as to content and form"), Essex through its General Counsel
Gallucci took the position that International was "the principal for [its]
various and numerous locals" and a party to the contract , whereas
International took the position that it was not and therefore not suable
under Section 301 of the Taft-Hartley Act for breach thereof. In that
Federal court action, Essex stated (C.P Exh 6, p 2)
provisions applicable to the one so subscribmg.74 It may
confidently be assumed that in the event Respondent sought
to enforce such an obligation, it would not-contrary to its
present contention-insist that International's subscription was
merely "ceremonial."75
Respondent strongly emphasizes wording in the initial
(1960) collective agreement recognizing Local 305 as exclusive
bargaining representative General Counsel explains this by
testimony (which I have credited) of Respondent's witness
Wildman, former Essex labor counsel who negotiated and
signed the 1960 agreement on behalf of Respondent, that the
agreement, incluing its Preamble, "recognition," and Wit-
nesseth clauses and signature format, were in effect copied
from another collective agreement which had shortly before
been negotiated at Essex's Peru (Indiana) plant. Whether or
not this accounts for the wording in the 1960 agreement
purporting to recognize the local (misnamed Local No. 344
therein), rather than International, as collective-bargaining
representative despite International's certification for Fowler
shortly prior thereto76 is beside the point, since, even if it
does not, such wording is not conclusive so as to alter the true
facts, whatever they were. Were it otherwise, employer and
that the International . . is a real party in interest to the contract.
The evidence to be introduced by plaintiff [Essex] in support of this
position will show that throughout the bargaining history between
the parties , the International has always assumed complete control
of and responsibility for negotiating the terms of the labor
agreement , has consistently policed all labor agreements between the
parties (processing grievances , handling arbitration cases, authorizing
strikes ) and by its conduct has given the company to understand
that it is in fact a full party to the agreement . The evidence will
further show by virtue of this relationship through the years, the
company has relied upon the International union to assume its
obligations and responsibilities under the agreement
In denying International 's motion to dismiss , United States District
Judge Robert A Grant held (in agreement with Essex's contention
there)
This Court cannot agree with the defendants that it is clear
that the contract does not purport to be an agreement between the
International Union and the plaintiff The status of the International
Union, in this resepct is, at least , uncertain . The final determina-
tion of this question might well depend upon the language of the
contract itself considered in conjunction with any evidence that
might be introduced which would tend to explain the total
atmosphere of the negotiations incident to the agreement , including
the degree of participation and interest exhibited by the represen-
tatives of the International Union "
The case was ultimately settled Respondent 's objection to admission
into evidence of the settlement agreement (C.P. Exh. 14- Ident.), upon
which ruling was reserved at the hearing , is hereby sustained , and its
motion to suppress that agreement is hereby granted
For purposes of the instant unfair labor practices proceeding, in my
view, as shown above, it is unnecessary to decide whether International
has been under past contract formats, or is required to be , a "party "
for Section 301 suability and possibly other purposes , since the true
issue in the instant proceeding is whether or not the employer failed in
its statutory obligation under Section 8(a)(5) of the Act to bargain with
International If, after such bargaining, the employer was or is aggrieved
by any failure or refusal of International -not here claimed - to sign an
agreement reached , ample remedy was and is available under the Act to
compel such execution by International . Cf Act, Section 8 (d), Osco
Steel Company, 168 NLRB No. 146 There is no indication that such
relief has ever here been sought by the employer.
76 Daugherty 's testimony further shows that in International's
organizational pattern it is not invariably International which is
certificated by the Board , for example, at Essex's nearby Logansport
"RBM" plant, it was local 668 which was certificated
GENERAL TRANSFORMER CO
union could by mere agreement negate a Board certification
without voice by unit employees.77
It may further be observed that there was no legal obstacle
to the selection of the format (even assuming the "recogni-
tion" wording of the Fowler agreement was not merely copied
from the Peru agreement, but was by design) of the instru-
ment, including its manner of subscription, by International
and its subsidiary Local 305, in the manner here utilized (with
Respondent's assent), without erasing the officially certificated
bargaining representative capacity of International. As is well
known, collective agreements take a wide penumbra of forms.
Varying formats and subscriptions are at times utilized in labor
law to serve the supposed purpose of exculpation or limitation
of liability on the part of the parent union (such as in case of
"wildcat" strikes or other local action unauthorized by the
parent union78 ) Indeed, comparable formats are utilized in
other fields of law, where principals are bound even without
disclosure of their identity in preamble, body, or subscription
of an instrument, such as real estate leases entered into with
lessees by rental agents, superintendents, or rent collectors on
behalf of realty owners. In this sense, a local may be regarded
as agent of its certificated parent, the agreement per se does
not convert agent or subsidiary into parent. Still another
tenable view in such a situation is that parent and local union
are in effect one and the same-Le., parts of a whole,79 or that
they jointly represent the affected employees (who are
members of parent as well as of the local).80
77 Although Respondent forcefully argues contractual "investiture"
to support its position , another way of viewing this is contractual
divestiture See cases cited supra , " 1. International 's Certificated
Bargaining Representative Status "
78 In this connection , it may be of interest to note that Essex, vice
president for Employee Relations Gallucci , also formerly its General
Counsel and of counsel for Respondent here , conceded that with only
one other exception Essex 's collective agreements have been subscribed
by International as herein, "approved as to content and form ' Gallucci
further testified that during the course of collective bargaining with
International at Essex's Logansport "RBM" facility ( Local 668),
similarly resulting in an agreement subscribed by International
"approved as to content and form" during the course of negotiations
there, when Gallucci proposed that International as well as Local 668 be
named as a party to the agreement , International Representative
Daugherty suggested that in that case the Company should release
International from liability upon International 's written demand on the
Local to cease violating the agreement . Gallucci refused , leaving the
introductory paragraph , recognition clause, and signature page un-
changed Apparently nobody suggested International need not sign at
all
Respondent concludes its brief-in-chief by stating (p. 76) "The
charging party wants authority without responsibility It wants to keep
a wage increase but withhold the consideration which is the quid pro
quo for it What it wants is insupportable in law or morals " But there
may be another side to this " Lawsuits demanding damages totaling up
to $300 million -more than 25 of them resulting from wildcat
strikes- are on file against the steelworkers . . the union's general
counsel has announced [ He] condemned the strikes . `Some of them are
insurrections,' he said ` Our contracts say we won't strike-most of them
have no-strike clauses ' [He] said that judgment against the
international union in one big case could wipe out its $20 ,000,000
treasury " The Washington Post, Oct 31, 1967, p. I1. In any event, if
Respondent wished International to sign a bargained agreement without
possibly limiting language preceding its subscription , it need but have
asked , as it in effect concedes "To be sure, if an employer insists that
as the certified representative the International Union sign the agree-
ment as the representative , the International Union has no legal
alternative but to acquiesce." (Resp . brief , p 30 ) And the facilities for
which the Board has been established have always been available to
Respondent to erase any question regarding the identity of its
375
However, introspection into such considerations, dwelling
as it does on matters of mere format, in a sense falls wide of
the fundamental question here, which is not the format that a
bargained agreement should take, but rather who must be
bargained with? After all, if Respondent, knowing that
International had just been certified by the Board, was
dissatisfied with entering into an agreement in the form here
used, it could readily and lawfully have insisted that Interna-
tional be spelled out as a party in the preamble and elsewhere
in crystal-clear form, and that it sign the agreement without
attempted or purported "qualification " Cf. N.L.R.B v.
Wooster Division of Borg-Warner Corp , 356 U S 342 Any
refusal by International to execute the bargained agreement
would have constituted a violation of the express provisions of
Section 8(b)(3) and (d) of the Act There is neither evidence or
contention here, however, that International refused or was
asked Indeed, credited testimony of International Regional
Director LaPage establishes that such requests are complied
with by International
The basic question of who must be bargained with here, is
thus not set at rest by Respondent's suggested simple
mechanical expedient of looking at the subscriptions or
formats of the agreements themselves 8 1 It is nevertheless true
that the fact that a particular signature is affixed to a
bargained instrument may import recognition by other signa-
' ories that he was to be bargained with In this respect, it is to
be noted that although the parties' 1965-68 agreement (G.C.
employees' lawful bargaining representative or to effect a change
therein, rather than to resort to the pattern of ex parte self-help in its
own interest demonstrated here. Cf. generally Parks v IBEW, 314 H 2d
886 (C A. 4), cert denied 372 U.S. 976
79 Thus, a campaign pamphlet (Resp. Exh 1 ) introduced in
evidence by Respondent is entitled , and emphasizes the theme, "ONE
UNION " (It is, incidentally , observed, that this same Respondent's
exhibit states, for example, that "The Seniority Clause which protects
you is a MUST provision in all AIW, AFL-CIO contracts signed for
you" lid , p 31 and calls attention to other terms and conditions of
employment which "AIW, AFL-CIO contracts provide for" and which
"AIW, AFL-CIO insists on " (Id, pp 3-4, emphasis added I With
regard to certain other matters, however , such as pensions and insurance
coverages, the language employed is, "The IAW advises on . " or "The
AIW provides advisory assistance to locals " [Id., pp 5-6 ])
Members and officials of a local are automatically members of
International and upon initiation and installation take oaths of
allegiance to International (Resp Exh. 3, art 3, pp 10 -11, arts 36 and
37, pp. 93-95.)
80 "The Act does not prohibit the voluntary addition of a party, but
that does not authorize the employer to exclude the certified
representative from the contract " N.L.R B. v Wooster Division of
Borg-Warner Corp , 356 U S. 342, 350
81Decorel Corp., 163 NLRB No 11 The mere fact that Local 305's
signature is affixed to the contract does not establish its exclusive
bargaining representative capacity -that is the very question here for
resolution Signing a contract does not itself establish legal capacity or
authority of the signer Identification of the signers of a collective
agreement does not serve as a categorical imperative on the issue of
whether the statutory bargaining obligation has been fulfilled. Cf Medo
Photo Supply Corp. v N.L.R.B , 321 U.S. 678, 683-684 Furthermore,
a representative always acts on behalf of principals . It is the principals
who are bound by the representative 's acts within the scope of his
authority . A union's principals in bargaining are the employees whom it
represents in bargaining If an employer were to obtain the signatures of
all employees as principals for whom the union has bargained, this
would not relieve the employer from the obligation to continue to
bargain with the union which those employees have designated Thus,
the signatures to the bargained agreement are not per se determinative
of who the bargaining representative is, toward whom the bargaining
obligation exists under the statute.
376 DECISIONS OF NATIONAL LABOR RELATIONS BAORD
Exh. 8) was subscribed as indicated by International, it is that
agreement which Respondent and Local 305 purported to
"terminate," modify, and extend for 2 years by the June 18,
1966 "supplemental agreement" (G C Exh. 12) without
International's subscription or participation
Upon the record here made, it cannot be said-within the
consistent context of Respondent's uninterrupted overt recog-
nition of International as a participant in the bargaining
process at all times up and to and including June 10,
1966-that the Employer's bargaining obligation vis-a-vis Inter-
national legally ended between June 10 and 17, 1966, when
the employer commenced "bargaining" without International.
The fact that a blockage in collective negotiations occurred on
June 10 or 16 because of the seeming inability to resolve the
difference in viewpoint on the issue of contract extension
between the employer on the one hand, and, apparently, both
International and the Local on the other hand, did not free the
Employer to bargain with the Local alone (or to seek direct
approval from the rank-and-file members) to the exclusion of
International. To do this, and to do it in the manner here
described, was a violation of the Employer's statutory obliga-
tion to bargain with International-regardless of the format, as
to signature or otherwise, of bargained agreements reached or
which might be reached.82 Medo Photo Supply Corp. v.
NL R.B, 321 U.S. 678, 683-684, Independent Stave Com-
pany, Inc , 148 NLRB 431, enfd 352 F.2d 553 (C.A. 8), cert.
denied 384 U S. 962, Quaker State Oil Refining Corporation,
121 NLRB 334, 338, 367, 368, enfd 270 F 2d 40, 45-46
(C.A 3), cert denied 361 U.S. 917
3. Respondent's Bypass of Union
When, by June 16, Respondent had failed to obtain that
assent which it had consistently sought prior to then from
International to Respondent's proposed 2-year extension of
the subsisting collective agreement, Respondent deliberately
proceeded to negotiate without International and to attempt
to obtain its employees' approval thereof. To this end,
Respondent on June 17 reopened negotiations with Local 305
officials whom it summoned to its plant office, in the absence
of International and without notice .to International, after
improving upon its last offer (June 10) to International,
Respondent prevailed upon Local 305 officials in its plant
office to submit the proposed contract extension directly to
the employees for their approval, notwithstanding even the
opposition of Local 305 officials to such extension. Also,
Respondent's improved offer of June 17 made to Local 305
officials in the absence of International, was further unilat-
erally augmented and announced by Respondent to its
employees for a vote by them, without bargaining with
International (nor, for that matter, even with Local 305).83 As
stated by the Supreme Court in N.L.R.B. v. Wooster Division
of Borg-Warner Corp., 356 U.S. 342 at 350
The `ballot' . deals only with relations between the
employees and their unions It substantially modifies the
collective-bargaining system provided for in the statute by
weakening the independence of the `representative' chosen
by the employees. It enables the employer, in effect, to deal
with its employees rather than with their statutory repre-
sentative Cf Medo Photo Corp. v Labor Board, 321 U S.
678
This may be taken to be doubly true where local officials,
employed in the plant, are summoned, as here, into the plant
office, "that locus of final authority in the plant" (cf General
Shoe Corporation, 97 NLRB 499, 502), and subjected to
employer exhortation in the designed absence of the employ-
ees' certificated International Representative who is not
subject to such economic and personal pressures
The employer is prohibited from making unilateral changes
in working conditions during negotiations-even though the
terms of employment are thereby improved-lest the union
be denigrated in the employees' eyes and its existence, as an
inevitable result, imperiled. N L R.B v Crompton Highland
Mills, Inc., 337 U.S 217 (1949), NL R.B. v. Insurance
Agents' International Union, supra, 361 U.S. at 485
(dictum). [Leventhal, J., in United Steelworkers of Amer-
ica, AFL-CIO v. N.L.R.B. (Roanoke Iron & Bridge Works,
Inc ), 390 F 2d 846 (C.A.D C.).]
[the employer's] conduct plainly created an atmos-
phere not conducive to a free exchange of ideas between
the Union and its constituents concerning the negotiated
agreement, and thereby constituted an inexcusable intru-
sion into the private affairs of the Union and the employees
it represented [Paranite Wire & Cable Division, Essex Wire
Corporation, 164 NLRB No. 48. Cf. General Electric
Company, 150 NLRB 192, 193, 194-195, 196, 262-266,
Quaker State Oil Refining Corporation, 121 NLRB 334,
345-346, 367-368, enfd 270 F 2d 40, 45-46 (C A. 3), cert.
denied, 361 U.S. 917.1
4. Threats
The complaint alleges that Respondent threatened its
employees that unless it accepted Respondent's proposal for a
2-year contract extension they would receive no wage increase.
The proof shows that on June 17 Fowler Plant Manager Sturtz,
appealing directly to the employees to vote on its proposition,
did indeed (according to his own testimony) tell them-in
response to their questioning-that if they failed to accept the
company's proposed contract extension, "you won't get the
money, probably have to live out the life of the present
contract " Respondent has moved to dismiss this allegation of
the complaint on the theory that it cannot be an illegal threat
to state that one intends to do (or refrain from doing) that
which he has a right to do (or refrain from doing) There is no
need to quarrel with this generally supportable platitude, nor is
82 Under all circumstances of this case, I do not regard International
Representative Daugherty's statement to Overbey indicating that the
latter sign for Local 305 the agreement presented by Sturtz in view of
the Local 305 vote thereon, is determinative of the issue here, namely,
Respondent 's obligation to bargain with International as the Board-
certified bargaining representative of the employees. Cf. N.L.R.B. v.
Wooster Division of Borg-Warner Corp., 356 U S 342, 347, wherein,
likewise upon recommendation of the International , the Local acceded
to the employer's request to enter into an agreement containing
controversial provisions insisted on by the employer but unacceptable
to the International, which refused to subscribe the agreement and
instead filed unfair labor practice charges of violation of Section 8(a)(5)
against the employer This circumstance did not deter the Supreme
Court from agreeing that the employer had violated the Act.
83 An employer violates his statutory duty to bargain if while
negotiations are sought or in progress he unilaterally institutes changes
in existing terms and conditions of employment . N.L.R.B v. Katz, 369
US 736
GENERAL TRANSFORMER CO
there occasion here to survey the metes and bounds to which it
(in company with similar attractive semantic universals) may
be subject. (Cf., e.g , Textile Workers v Darlington Co , 380
U S 263, 274, fn 20.)
The difficulty with Respondent's position is, it did not
happen that way If Respondent had made and confined to
International and the Local its statement that there would be
no wage increases without a contract extension, it would not
have been unlawful However, the statements were made by
Respondent in a direct appeal by it to its employees, in a
contextual cloud of attempted employer estrangement of
employees from their certified collective bargaining representa-
tive.84 It was Respondent itself who deliberately chose to
create this contextual cloud Viewing what happened, as is
only fair, in the circumstantial crucible of what had already
transpired and what was transpiring, rather than in a lintfree
vacuum, it is evident that the Employer was in effect placing a
condition upon the wage increases it was dangling before its
employees, namely, that they were contingent upon employ-
ees' rejection of their certified collective bargaining representa-
tive's unflinching opposition to a contract extension-indeed,
upon the employees' acceptance of an employer proposition
(G.C. Exh. 12) which it had not even totally discussed or
negotiated with International. Thus to convey the message to
represented employees that they could not have wage increases
unless they in effect parted company from their statutorily
certified collective bargaining representative constituted a
threat not to increase wages if employees continued to bargain
collectively in the manner they had elected to do and as they
had the statutorily guaranteed right to do, through their
-certified collective bargaining representative. Cf. NL.R.B v
Wooster Division of Borg-Warner Corp., supra; United Steel-
workers of America, AFL-CIO v. N.L.R.B. (Roanoke Iron &
Bridge Works, Inc ), supra, Paranite Wire & Cable Division,
Essex Wire Corporation, 164 NLRB No. 48, General Electric
Company, 150 NLRB 192, 195-197, 266 A right is not free
when shackled in this way by one having power to make the
shackles hurt, economically or otherwise Since the described
actions of Respondent interfered with, restrained, and coerced
its employees in the exercise of their right to bargain
collectively through their certified representative in the normal
way contemplated by the Act, free from such employer fetters
or disruptive end-runs around the employees' representative, I
hold it to have been in violation of Sections 8(a)(1) and (5) of
the Act as alleged. Respondent's motion at the hearing, upon
which decision was reserved, to dismiss this allegation of the
complaint, is accordingly denied
5. Recapitulation
This, then, is a proceeding involving three parties an
International Union certified by the Board after an official
election and still holding that certificate, with no other union
certified or designated additionally or in its place; an Employer
who has not only at all times to and including June 10, 1966
bargained side by side with that International and its Local
subsidiary, but has up to and including June 16 affirmatively
sought out the International in order to engage in collective
bargaining, and, finally, the International's subsidiary Local,
84 Cf, e.g, Boyle's Famous Corned Beef Co , 168 NLRB No. 46,
General Electric Company, 150 NLRB 192, 195-197, 266
377
which has at all times to and including June 10 participated in
collective bargaining with the Employer side by side with its
parent International Union, and which Local has not appeared
in this proceeding although named and served as a party In
May, 1966 the Employer sought modification of a subsisting
collective agreement subscribed by these three parties in 1965,
which by its terms was effective for 3 years, until 1968, and
which contained a provision precluding unilateral modification
or reopener. The reason for the desired modification was that
the Employer was losing employees to an intolerable degree
because of wage rate increases in competing plants. In seeking
this modification, the Employer first contacted International
in order to open negotiations In the ensuing negotiations,
participated in by all three parties, the Employer, as a
condition to the proposed wage increases, insisted upon a
2-year extension of the subsisting collective agreement, in
effect converting that to a 5-year agreement, which both
International and the Local consistently refused to and
including June 10. On June 16 the Employer privately met
with international, which continued to refuse the proposed
contract extension. On the same day (June 16) the Employer
met privately in the plant office with the Local and succeeded
in persuading its officials (all plant employees whom the
Employer had summoned to its office) to call a Local
membership meeting for the following evening (June 17) to
consider the proposition rejected by International and the
Local On the afternoon of June 17, again in the absence of
International (the Board-certificated representative of the
employees) and without notice or attempt at notice to
International, the Employer again met privately with the
Local, engaging in negotiations with the Local culminating in
an improved offer by the Employer to the Local alone of
wages, terms and conditions of employment, dependent upon
a 2-year contract extension-better than that which had been
proposed by the Employer at the last all-party negotiating
session of June 10-which the Employer thereafter communi-
cated directly to employees in plant speeches, during the
course of which further improvement was granted to the
employees directly by the Employer, unilaterally and without
consultation with either the International or its Local. The
Employer urged employees to vote in favor of its latest
proposal, at a Local membership meeting to be held following
the Employer's speeches, indicating that unless they did so
they would receive no wage increases At that Local member-
ship meeting, which was immediately thereafter held under
confused and disorderly conditions, the Local membership
approved the Employer's latest proposal, which was then
incorporated into a written agreement which the Employer
signed with the Local only. Although that agreement in form
and in terms purports to modify and extend for over 2 years
the subsisting (1965-68) collective agreement to which Inter-
national is a signatory, at no time was it bargained with nor
presented to International for signature or approval, nor was it
at any time subscribed or approved by International.
Respondent has failed to sustain its burden of proofB 5 of
establishing by a preponderance of the substantial credible
evidence that International has not been and is not the
authorized collective bargaining representative of Respondent's
employees in the unit found appropriate in the Board's 1960
85 See cases cited supra, " 1. International 's Certificated Bargaining
Representative Status."
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
certification of International as such representative.
Under these circumstances, within the context of the record
as a whole, I find and conclude that the Employer violated its
obligation under Section 8(a)(5) and (1) to bargain collectively
with International, and that the Employer interfered with,
threatened, and coerced its employees in the exercise of their
rights under Section 7, in violation of Section 8(a)(5) and (1),
of the Act Independent Stave Company, Inc , 148 NLRB 431,
enfd 352 F 2d 553 (C.A 8), cert denied 384 U.S 962 86 Cf
Decorel Corp , 163 NLRB No 11, General Electric Company,
150 NLRB 192, 194-195, 262-266, Quaker State Oil Refining
Corporation, 121 NLRB 334, 345-346, 367-368, enfd 270
F.2d 40, 45-46 (C.A. 3), cert denied 361 U.S. 917, John L
Clemmey Company, Inc, 118 NLRB 599.
Upon the foregoing findings and the entire record, I state
the following
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2 International Union, Allied Industrial Workers of Amer-
ica, AFL-CIO, and its affiliated subsidiary, Local 305,
International Union, Allied Industrial Workers of America,
AFL-CIO, have at all material times been and are labor
organizations within the meaning of Section 2(5) of the Act
3. At all material times, the following has constituted and
now constitutes a unit appropriate for purposes of collective
bargaining within the meaning of Section 9(b) of the Act
All production and maintenance employees, including group
leaders, a first aid-production employee, and a combination
watchman-janitor-production employee of Respondent em-
ployed at its Fowler, Indiana plant, exclusive of office clerical
employees, guards, professional employees, and all super-
visors as defined in the Act
4. At all material times, International Union, Allied Indus-
trial Workers of America, AFL-CIO, has been and is the
exclusive bargaining representative of Respondent's employees
in the foregoing appropriate unit within the meaning of Section
9(a) of the Act
5. By (a) failing and refusing to bargain collectively with
said International as exclusive bargaining representative of the
employees in the aforesaid appropriate bargaining unit since on
or about June 10, 1966, (b) bargaining or attempting or
purporting to bargain with said unit employees without said
International, on and since June 17, 1966; (c) purporting by
instrument dated June 18, 1966 to amend a collective agreement
86 It is noted that in Independent Stave , as here , (1) the
International Union was the Board -certified bargaining representative
and (2 ) prior collective agreement Preamble had identified only the
Local as a party , and, unlike here, (3) prior collective agreement had
been concluded and signed between the employer and the Local alone
(148 NLRB at 436). Board and Court held the employer to have
violated Section 8(a)(5) and ( 1) of the Act by entering into a purported
collective agreement with the Local over the opposition of the
International . Respondent here calls attention to a post -Board proceed-
ing stipulation between the parties in Independent Stave indicating that
certain agreements between the parties in that case were not before the
Board. However , both the record and the trial examiner 's decision in
that case (officially noticed here ) indicate that not only was negotiating
procedure described but also that contractual wording (e.g., Tr pp.
dated October 21, 1965 and effective until October 21, 1968,
subscribed by said International, by extending its term to
December 13, 1970, without the subscription or concurrence of
said International, (d) granting benefits including wage increases,
to said unit employees without negotiating the same with said
International, Respondent has engaged and is engaging in unfair
labor practices in violation of Section 8(a)(5) and (1) of the Act.
6. By engaging in such failure and refusal to bargain,
Respondent has interfered with, restrained and coerced, and is
interfering with, restraining and coercing, its employees in the
exercise of their statutory rights, in violation of Section 8(a)( 1)
of the Act
7. By threatening its said unit employees with loss of future
benefits unless said employees authorized and approved the
extension of the duration of said subsisting collective agreement
dated October 21, 1965 until on or about December 13, 1970,
contrary to the express refusal of the collective bargaining
representative of said employees to agree thereto, Respondent
has engaged and is engaging in unfair labor practices in violation
of Section 8(a)(5) and (1) of the Act, and has interfered with,
restrained and coerced, and is interfering with, restraining and
coercing, its employees in the exercise of their statutory rights,
in violation of Section 8(a)(1) of the Act
8 The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act
THE REMEDY
Having found that Respondent has engaged in certain unfair
labor practices within the meaning of Section 8(a)(5) and (1)
of the Act, it will be recommended that Respondent be
required to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of the
Act. It will be recommended that Respondent be ordered to
bargain collectively upon request, with International as the
exclusive representative of the employees in the appropriate
unit and embody in a signed agreement any understanding
reached. It will also be recommended that Respondent be
required to cease and desist from performing or giving effect to
its agreement dated June 18, 1966, with Local 305; without,
however, affecting any wage increase, wage rate increase,
vacation pay, starting pay differential, or other benefit placed
into effect or provided for under said June 18, 1966 agreement
or otherwise.
Upon the basis of the foreoging findings of fact and
conclusions of law and upon the entire record, and pursuant to
Section 10(c) of the Act, I hereby make the following:
69-72 ) was quoted in testimony at the hearing , and considered and dealt
with by the trial examiner in his decision. Furthermore , the indicated
post -Board stipulation and record show that the agreements themselves
were before the Court "for consideration by the Court " (as the
stipulation recites ), which enforced the Board 's order affirming the
decision of Trial Examiner George J. Bott. Certiorari was subsequently
denied by the Supreme Court . There is no indication here that
reargument or reopening of Independent Stave has ever been sought
from the Board or elsewhere The objections to Respondent's offer in
evidence of the record in Independent Stave ( Resp . Exhs 42 and 42-A)
are sustained In trial and appellate litigation, a party is always free to
argue the applicability or inapplicability of the decision in another case,
and may if essential for that purpose resort to the record of the other
case, without the necessity for placing the record in evidence.
GENERAL TRANSFORMER CO. 379
RECOMMENDED ORDER
General Transformer Company, its officers, agents, succes-
sors and assigns, shall
1 Cease and desist from
(a) Failing or refusing to bargain collectively with Inter-
national Union, Allied Industrial Workers of America, AFL-
CIO, as exclusive representative of Respondent's employees in
the following appropriate collective bargaining unit
All production and maintenance employees, including
group leaders, a first aid-production employee, and a
combination watchman-janitor-production employee em-
ployed at Respondent's Fowler, Indiana plant, exclusive of
office clerical employees, guards, professional employees,
and all supervisors as defined in the Act.
(b) Bargaining or attempting or purporting to bargain with
said unit employees without said International.
(c) Purporting to have amended, or to hold out or
represent as having been amended, a collective agreement
dated October 21, 1965, subscribed by said International,
through or by virtue of an instrument dated June 18, 1966
subscribed by Respondent and Local No. 305, International
Union, Allied Industrial Workers of America, AFL-CIO,
purporting to extend the term of the aforesaid October 21,
1965, collective agreement to December 13, 1970.
(d) Granting benefits, in the form of wage increases or
otherwise, to said unit employees or any of them without
negotiating the same with said International
(e) Warning or threatening its said unit employees or any of
them with loss of future benefits unless said employees
authorize or approve extension of the duration of, or any
other change or modification in, any subsisting collective
agreement without having negotiated such change or modifica-
tion with said International, or contrary to the refusal of said
International to agree thereto or submit same for ratification
or other action by said employees.
(f) Performing or giving effect to its agreement dated June
18, 1966, with Local No. 305, International Union, Allied
Industrial Workers of America, AFL-CIO, provided, however,
that nothing herein shall affect any wage increase, wage rate
increase, vacation pay, starting pay differential, or any other
benefit placed into effect or provided for by virtue of said
June 18, 1966 agreement or otherwise, nor shall anything
herein prejudice the assertion by employees of any rights
acquired thereunder
(g) In any like or related manner interfering with the
efforts of said International Union, Allied Industrial Workers
of America, AFL-CIO, to bargain collectively for employees
in said unit.
2. Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Upon request, bargain collectively with International
Union, Allied Industrial Workers of America, AFL-CIO, as
exclusive representative of all employees in the appropriate
unit described above, concerning rates of pay, wages, hours,
and other terms and conditions of employment, and embody
in a signed agreement any understanding reached.
(b) Post at its plant in Fowler, Indiana, copies of the
Notice attached hereto as "Appendix A.s87 Copies of said
Notice, on forms provided by the Regional Director for Region
25, shall, after being duly signed by Respondent's authorized
representative, be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other
material
(c) Notify said Regional Director, in writing, within 20
days from receipt of this Decision and Recommended Order,
as to what steps have been taken to comply therewith.8 8
87 In 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 words "a Decree of the United
States Court of Appeals Enforcing an Order" shall be substituted for the
words "a Decision and Order."
88 In the event that the 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, as to
what steps have been taken to comply herewith."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and 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 our employees that.
After a hearing duly held, it was determined that General
Transformer Company has violated the National Labor Rela-
tions Act. In order to remedy this conduct, we have been
required to post this notice and to take the following steps
WE WILL bargain collectively in good faith, upon re-
quest, with International Union, Allied Industrial Workers
of America, AFL-CIO, as the exclusive representative of all
of our employees described below, with respect to rates of
pay, wages, hours, and other terms and conditions of
employment, and embody in a written agreement any
understanding reached. The collective bargaining unit is
All production and maintenance employees, including
group leaders, a first aid-production employee, and a
combination watchman-janitor-production employee em-
ployed at our Fowler, Indiana plant, exclusive of office
clerical employees, guards, professional employees, and
all supervisors as defined in the Act.
WE WILL NOT bypass International Union, Allied Indus-
trial Workers of America, AFL-CIO, and bargain or
attempt to bargain directly with our employees or with
Local No. 305, International Union, Allied Industrial
Workers of America, AFL-CIO, in the absence of Interna-
tional Union, Allied Industrial Workers of America, AFL-
CIO
WE WILL NOT attempt to extend the duration of any
collective agreement subscribed by International Union,
Allied Industrial Workers of America, AFL-CIO, without
negotiating with and obtaining the approval of International
Union, Allied Industrial Workers of America, AFL-CIO, and
WE WILL NOT attempt to get our employees or Local No.
305, International Union, Allied Industrial Workers of
America, AFL-CIO, to enter into any such extension with
us alone.
WE WILL NOT warn or threaten any of our employees
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with loss of higher pay or other benefits unless said
employees extend the duration of (or otherwise modify)
the collective agreement into which we have entered with
their collective bargaining representative, by appealing to
our employees to vote on such a modification even though
their collective bargaining representative has not seen fit to
submit it to the employees for a vote.
Wr. WILL NOT perform or give effect to our agreement
dated June 18, 1966, with Local No. 305, International
Union, Allied Industrial Workers of America, AFL-CIO,
which purports to extend the duration of our collective
agreement of October 21, 1965 to December 13, 1970.
However, this will not affect or prejudice any wage increase,
wage rate increase, vacation pay, starting pay differential,
or any other benefit placed into effect or provided for
under the June 18, 1966, agreement
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of rights
guaranteed them in Section 7 of the Act, except to the
extent that such rights may be affected by a union shop
agreement as authorized in the State of Indiana by virtue of
Section 8(a)(3) of the Act as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
GENERAL TRANSFORMER
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.
If employees have any question concerning this notice or
compliance with its provisions, they may communicate di-
rectly with the Board's Regional Office, 614 ISTA Center, 150
W. Market Street, Indianapolis, Indiana 56204, Telephone
633-8921