John L. Clemmey Co., Inc.

National Labor Relations Board - Board Decisions

Jul 11, 1957

118 N.L.R.B. 599 (N.L.R.B. 1957)

JOHN L. CLEMMEY COMPANY, INC. 599
charges are substantially the same as the Petitioner's objections to
the election . On February 6, 1957, the Regional Director refused to
issue a complaint on the ground of insufficient evidence. Thereafter,
in order to avoid repetition, the Petitioner requested that its excep-
tions to the report on objections be used as the basis of its appeal from
the Regional Director's refusal to issue a complaint. The General
Counsel has sustained the action of the Regional Director.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Leedom and Members Murdock and
Jenkins].
The principal objection to the election made by the Petitioner is
that the Employer directly and indirectly aided and assisted the
Teamsters and IBEW and defamed the Petitioner. In treating these
objections, the Regional Director pointed out that the alleged acts of
the Employer urged in the objections are alleged as unfair labor
practices in the complaint case. Under established procedure, the
Board dismisses objections to an election which are mere reiterations
of unfair labor practice charges which have been dismissed by the
General Counsel.2 Accordingly, we hereby overrule the Petitioner's
objections to the election. In overruling the Petitioner's objections,
the Board does not undertake to decide the factual questions raised
by the Petitioner's exceptions. The Board rests its decision solely on
the application of the Times Square doctrines namely, that it will not
in the guise of considering objections to an election review the General
Counsel's dismissal of unfair labor practice charges 4
[The Board certified Local 1710, International Brotherhood of
Electrical Workers, AFL-CIO, as the designated collective-bargain-
ing representative of all production and maintenance employees at the
Employer's Los Angeles, California, plant, excluding office, sales,
clerical, engineering, technicians, operating engineers, draftsmen,
employees engaged in research and experimental activities, guards,
and all supervisors as defined in the Act.]
2 31artinolich Ship Repair Co., 111 NLRB 761, 762.
3 Times Square Stores Corporation, 79 NLRB 361.
* See Parker Brothers & Company, 110 NLRB 1909.
John L. Clemmey Company, Inc. and United Steelworkers of
America, AFL-CIO. Case No. 1-CA-2054. July 11,195'
DECISION AND ORDER
On November 7, 1956, Trial Examiner James A. Shaw issued his
Intermediate Report in the above-entitled proceeding, finding that
118 NLRB No. 77.
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent had engaged in certain unfair labor practices but rec-
ommending that the complaint be dismissed, as set forth in the copy
of the Intermediate Report attached hereto. Thereafter, the General
Counsel and the Charging. Party filed exceptions to the Intermediate
Report and briefs in support of the exceptions.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. Ex-
cept as herein modified, the rulings are hereby affirmed.' The Board
has considered the Intermediate Report, the exceptions and briefs,
and the entire record in the case, and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner, but only to the
extent consistent with the following :
1. We agree with the findings of the Trial Examiner, to which no
exceptions have been filed, that as to the 1956-57 contract, "the Re-
spondent was under a statutory duty to bargain with the Union as
the exclusive bargaining representative of its employees, and that by
entering into an agreement with Local 2851 without the express ap-
proval of the Union it violated Section 8 (a) (5) and (1) of the Act." 2
We do not, however, agree with the Trial Examiner that this was
only a technical violation and does not call for the issuance of the
usual remedial order.
The Trial Examiner seems to have been influenced in his conclu-
sion that the violation was merely technical by a supposed analogy to
the negotiations for the 1952-53 contract which was signed by the
Local alone. Apparently, the Trial Examiner felt that the Respond-
ent had reason to believe that the Local was authorized to enter into
the 1956-57 contract in behalf of the International, the statutory rep-
resentative, in view of what had occurred during the 1952-53 con-
tract negotiations. However, there is a very important difference be-
tween the two situations. The Respondent entered into the 1952-53
I At the hearing, counsel for the Union , the Charging Party, objected on two occasions to
questions put to a witness on direct examination by Respondent 's counsel , upon the ground
that the questions related to internal union matters . On his own motion, the Trial Ex-
aminer refused to entertain these objections. He ruled that the Union could participate
in the hearing only to the extent the General Counsel might permit and that the Union could
not examine or cross-examine witnesses as to any "matters that had been touched upon by
the General Counsel " in his own interrogation of the witness . The General Counsel did not
object to the intervention of the Union 's counsel . Section 102 . 38 of the Board's Rules
provides:
Any party shall have the right to appear at such hearing in person , by counsel, or by
other representative , to call, examine and cross -examine witnesses , and to introduce into
the record documentary or other evidence, except that the participation of any party
shall be limited to the extent permitted by the trial examiner . . .
A person filing an unfair labor practice charge is a "party " within the meaning of this
rule ( section 102 . 8 of the Board 's Rules and Regulations ), and is entitled to participate
fully in the hearing . International Brotherhood of Boilermakers , etc. Lodge No. 92 (Rich-
field Oil Corporation ), 95 NLRB 1191, 1192, footnote 1. The Trial Examiner's ruling
restricting the Union ' s participation was unduly restrictive and therefore erroneous.
However , in view of the Board ' s decision, we find that the Trial Examiner ' s error was
not prejudicial.
2 redo Photo Supply Corp . v. N. L. R. B., 321 U. S. 678.
JOHN L. CLEMMEY COMPANY, INC. 601
contract with the Local with the International 's full knowledge and
consent and also with the latter 's prior authorization to the Local
to bind the International, conveyed directly both to the Local and to
the Respondent . In contrast , the Respondent made the 1956-57 agree-
ment with the Local without either prior knowledge or authorization
by the International , which actually had given instructions against
making such an agreement . In addition , the Respondent so con-
tracted while negotiations with the International, involving the dis-
position of a number of substantial demands which the International
had presented to the Respondent, were still pending and incomplete.
The Respondent, therefore , was not justified in assuming from any
conduct of the International that the Local was authorized to act as
agent of the International in signing the 1956-57 collective -bargaining
agreement.
The Respondent 's conduct in concluding an agreement with the
Local in disregard of the statutory bargaining representative was not
a merely technical violation of the Act . On the contrary , " it was
a violation of the essential principle of collective bargaining ..." 3
and calls for the usual remedy in such cases , namely, that the Re-
spondent be required to cease and desist from such unlawful practices
and, affirmatively, to bargain with the Union.
2. The General Counsel has excepted to the Trial Examiner's
failure to find that the granting of the Christmas bonuses in disre-
gard of the statutory bargaining representative was a further viola-
tion of Section 8 (a) (5) and (1) of the Act. We agree that the
Respondent 's aforesaid conduct also violated Section 8 (a) (5) and
(1) of the Act and so find.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, John L . Clemmey
Company, Inc., Mansfield, Massachusetts, and its officers, agents, suc-
cessors , and assigns , shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with United Steelworkers of
America, AFL-CIO, as the exclusive representative of all employees
of the Respondent employed at its plant in Mansfield, Massachusetts,
exclusive of office clerical employees, timekeepers , watchmen, and all
supervisors as defined in Section 2 (11) of the Act, with respect to
rates of pay , wages, hours of employment , and other conditions of
employment.
3Id. at p. 684.
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) In any like or related manner interfering with the efforts of
'United Steelworkers of America, AFL-CIO, to bargain collectively
with the Respondent on behalf of the employees in the above unit.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Upon request, bargain collectively with United Steelworkers
of America, AFL-CIO, as the exclusive representative of its em-
ployees in the above unit, with respect to rates of pay, wages, hours of
employment, and other conditions of employment, and, if an
understanding is reached, embody such understanding in a signed
agreement.
(b) Post at its plant in Mansfield, Massachusetts, copies of the
notice attached hereto marked "Appendix A." 4 Copies of said notice,
to be furnished by the Regional Director for the First Region, shall,
after being duly signed by the authorized representative of the Re-
spondent, be posted by the Respondent immediately upon receipt
thereof and maintained by-it for a period of sixty (60) consecutive
days thereafter in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for the First Region in writing,
within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
MEMBERS RODGERS and BEAN took no part in the consideration of the
above Decision and Order.
4 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order " the words
"Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL bargain collectively upon request with United Steel-
workers of America, AFL-CIO, as the exclusive representative
of all employees in the bargaining unit described below with
respect to wages, rates of pay, hours of employment, and other
terms or conditions of employment, and, if an understanding is
reached, embody such understanding in a signed agreement. The
bargaining unit is :
JOHN L. CLEMMEY COMPANY , INC. 603
All employees at our Mansfield , Massachusetts , plant, ex-
clusive of office clerical employees , timekeepers , watchmen,
and all supervisors as defined in the Act.
WE WILL NOT in any manner interfere with the efforts of the
above-named Union to bargain with us as the exclusive repre-
sentative of the employees in the bargaining unit set forth above.
JOHN L. CLEMMEY COMPANY, INC.,
Employer.
Dated------ ---------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
On April 11, 1956, upon charges filed by United Steelworkers of America,
AFL-CIO, herein called the Union, the General Counsel of the National Labor
Relations Board, by the Regional Director for the First Region (Boston, Massa-
chusetts), herein referred to as the General Counsel and the Board, respectively,
issued a notice of hearing and complaint against John L. Clemmey Company, Inc.,
Mansfield , Massachusetts , herein called the Respondent , alleging that it had engaged
in and was engaging in certain unfair labor practices affecting commerce within
the meaning of Section 8 (a) (5) and (1) and Section 2 (6) and (7) of the National
Labor Relations Act, as amended, 61 Stat. 136, herein referred to as the Act.
With respect to the unfair labor practices the complaint alleges in substance that:
(1) Respondent from on or about December 19, 1955, did refuse and continues
to refuse to bargain collectively with the Union as the exclusive representative of
all the employees in the appropriate unit in that Respondent did, without limitation,
(a) on or about December 23, 1955, execute a collective-bargaining agreement with
an alleged committee of employees thus bypassing said Union; (b) on or about
December 23, 1955, put into effect a wage increase and/or bonus, and did on or
about December 23, 1955, pay said wage increase and/or bonus to all the employees
in the unit described in paragraph 5 of the complaint without prior consultation with
the Union; (c) on or about January 24, 1956, refuse to meet and continue negotia-
tions with the Union; and (2) by the acts described above Respondent did engage
in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5)
and (1) and Section 2 (6) and (7) of the Act.
On or about April 20, 1956, the Respondent filed its answer in which it admitted
certain jurisdictional facts, and denied the commission of any of the alleged unfair
labor practices.
Pursuant to notice a hearing was held in Attleboro, Massachusetts, on May 17
and 31 and June 1, 1956, and in Fall River, Massachusetts, on July 10, 1956, before
the duly designated Trial Examiner. The General Counsel, the Respondent, and
the Charging Union were represented by counsel at the hearing. The General
Counsel and the Respondent were afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing upon the issues'
Counsel for the Charging Union was permitted to participate in the hearing to the
extent indicated below. At the close of the hearing the General Counsel moved that
the complaint be amended to conform to the proof as regards minor matters, such
as names, dates, and the like. The motion was granted by the Trial Examiner. All
parties were given an opportunity to present oral argument in support of their
respective positions. Only the General Counsel availed himself of this opportunity.
The parties were advised by the Trial Examiner of their right to file proposed
findings of fact and conclusions of law, with briefs in support thereof. A brief was
received from counsel for the Respondent on or about July 31, 1956. It has been
duly considered by the Trial Examiner.
During the course of the hearing a controversy arose as to the extent to which
counsel for a charging union may participate in the prosecution of a complaint case
(604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
'before a Trial Examiner of the Board. After considerable discussion the Trial
Examiner took the same position he did in the Dallas Concrete case' and the Hexton
Furniture Company case 2 both of which were approved sub silentio by the Board.
In the Hexton case the Trial Examiner commented as follows:
The issue as to the extent a counsel for a charging union and/or a charging
party shall be permitted to participate in the conduct of a proceeding in a
complaint case before a Trial Examiner of the Board having been raised in
the circumstances described immediately above the Trial Examiner then took
the position indicated at length below.
The Trial Examiner ruled that the presentation and/or prosecution of com-
plaints before the Board and its Trial Examiners is the province of the General
Counsel. As he sees it Section 3 (d) of the Act prevails and supersedes any and
all Rules and Regulations of the Board that might be interpreted contrary to its
mandatory provisions. Section 3 (d) provides, inter alia as follows:
. He shall have final authority, on behalf of the Board, in respect of the
investigation of charges and issuances.of complaints under Section 10, and
in respect of the prosecution of such complaints before the Board, and shall
have such other duties as the Board may prescribe or as may be provided
by law. [Emphasis supplied.]
Having so reasoned, the Trial Examiner then laid down the following rules
as regards the conduct of the hearing herein which in the main were adhered
to thereafter by the parties. His ruling in this regard was as follows. The
prosecution of the case was the sole responsibility of the General Counsel,
however if he deemed it advisable to waive the examination of a witness either
on direct or cross-examination he should so state to the record and counsel for
the Charging Union could then participate in the examination of witnesses to
the extent indicated by the General Counsel, but under no circumstances would
he be permitted to examine or cross-examine any witness as regards matters
that had been touched upon by the General Counsel in his interrogation of the
witness at bar. In other words the Trial Examiner made it perfectly clear
that in no circumstance would he permit "double-barrelled" cross-examination,
so to speak, of any witness.
The status of counsel for either a charging union and/or a charging party
has previously been before the Board. In the Dallas Concrete case,' this
question was likewise raised before the Trial Examiner. In that case under
somewhat similar circumstances the Trial Examiner held with the approval of
the Board and thereafter sub silentio by the Fifth Circuit of the United States
Court of Appeals, as follows:
i 102 NLRB 1292 at 1296.
In his brief counsel for the Union again renews his motion to amend. It
is again denied. In the considered opinion of the undersigned the language
of the Board, in Sailor's Union of the Pacific, AFL (Moore Dry Dock
Company), 92 NLRB 547 (1950) is controlling. In that case a similar situa-
tion was involved [except that therein, the charging party was the Employer],
and the Board said:
Section 8 (a) and (b) of the Labor Management Relations Act create
public and not private rights (Phelps Dodge Corporation v. N. L. R. B.,
313 U. S. 177). The protection of those rights is entrusted to public
officials and not to private parties. The General Counsel of the Board has
"final authority, on behalf of the Board in respect of the investigation of
charges and issuance of complaints under Section 10 and in respect of the
prosecution of such complaints before the Board. ... Thus, the decision
whether to issue a complaint, the contents of the complaint, and the
management of the prosecution before the Board is entrusted to the sole
discretion of the General Counsel (See Haleston Drug Stores, Inc., 86
NLRB 1166). It follows that only the General Counsel may move to
amend a complaint to allege an additional violation of the Act. Otherwise
the management of the cause would pro tanto be taken from the General
Counsel and entrusted to a private party, which is contrary to the scheme
of the statute and the specific provision of Section 3 (d). As the General
1 102 NLRB 1292 at 1296-1297.
a 111 NLRB 342.
JOHN L. CLEMMEY COMPANY, INC. 605
Counsel has declined to join in the charging party's motion, it is hereby
denied. The similar ruling of the Trial Examiner is also affirmed.
[Emphasis, supplied.]
In- the considered opinion of the Trial Examiner the above citation is apropos
to the situation herein.
•Upon the entire record of the case. and from the Trial Examiner's observation of
the witnesses, he makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The complaint alleges and the answer admits that John L. Clemmey Company,
Inc., is and has been at all times material herein a corporation duly organized under
and existing by virtue of the laws of the Commonwealth of Massachusetts, with its
principal office and place of business in the city of Mansfield, Massachusetts.
Respondent, in the course and conduct of its business, causes, and continuously
.has caused at all times material herein, large quantities of raw materials to be pur-
chased and transported in interstate commerce from and through various States
of the United States other than the Commonwealth of Massachusetts, and causes,
and continuously has caused at all times material herein, steel tanks, valued in
excess of $100,000 annually, to be sold and transported from said plant in interstate
commerce to States of the United States other than the Commonwealth of
Massachusetts.
Upon all the foregoing the Trial Examiner finds that the Respondent herein is
engaged in commerce within the meaning of Section 2 (6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America , AFL-CIO, is a labor organization within the
meaning of Section 2 ( 5) of the Act.
III. THE UNFAIR LABOR PRACTICES
To begin with there is little, if any, conflict in the testimony adduced at the
hearing herein by the parties in support of their respective positions . What little
there is will be resolved below by the Trial Examiner. As indicated above, the issues
herein revolve around an alleged refusal to bargain with the Union. Here as in many
such cases it becomes necessary to ponder what has gone before in the relationship
of the Union and the Respondent. In other word, "What is past is prologue-
Study the past." 3 Some call it background. Be that as it may, however, no proper
understanding of the issues herein and the evidence adduced by the parties in support
of their respective positions could be had without going back to the beginning of
collective-bargaining relations between the Union and the Respondent.
In support of his case-in-chief the General Counsel called but two witnesses,
Thomas Rusbino and James A. Beattie, both of whom at one time or another were
the field representatives of the Union in charge of the geographical area wherein
the Respondent's plant was located. It was their duty as representatives of the
exclusive bargaining representative of the Respondent's employees in the unit found
appropriate below, to service them, so to speak, in all matters that are a proper
subject for collective bargaining.
The record shows that the Union was recognized as the exclusive bargaining repre-
sentative of the Respondent's employees sometime in 1948 following a strike that
lasted some 17 or 18 weeks.
Shortly after the Union was recognized by the Respondent as the exclusive bargain-
ing representative for its employees, the Union set up a local for its membership in the
Respondent's plant, and chartered and designated it as Local 2851. For convenience
the Trial Examiner will refer to it herein as Local 2851. For a history of the relation-
ship between the parties from the date the Union was recognized in 1948 to October
1955, we turn to the credible testimony of Thomas Rusbino, who, as indicated above,
serviced the Respondent's employees in the appropriate unit during this period.
Before proceeding further the Trial Examiner feels that here is as good a place
as any to dispose of the question as to the appropriate unit. Since the complaint,
alleges, and the answer admits, the Trial Examiner finds that "all employees of
Respondent employed at its Mansfield plant, exclusive of office clerical employees,.
timekeepers, watchmen and all supervisors as defined in Section 2 (11) of the Act,.
3 From the legend on the portals to Archives Building in Washington, D. C.
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
constitute a unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act."
According to Rusbino the first agreement between the parties was entered into on
or about February 5, 1948, and was to continue in effect for a period of 2 years,
and provided that it ". . . shall be automatically renewed thereafter excepting that
upon due notice in writing from either party to the other that a change is desired
and where said notice is given at least sixty (60) days before the anniversary date
of this agreement and shall be reopened for the purposes of modifying or revising
any and all provisions of this Agreement." Further examination of the above
agreement shows that it was signed by representatives of both the Union and Local
2851. At the time the above agreement was entered into Rusbino was the field
representative assigned to service Local 2851.
According to Rusbino, the officers of Local 2851 in 1949 were Reginald Gagnon,
president, William Vallee, vice president, and Henry Penn, recording secretary.
There were other minor officers, who insofar as this record is concerned played no
part in, the events which concern us herein.
The second agreement between the parties was entered into on December 27, 1949,
was for a period of 1 year, and contained an automatic renewal clause similar to
that contained in the contract entered into in 1948. An examination of this docu-
ment shows that it was signed by several officials of the Union, including Rusbino,
and by the following officers of Local 2851: Gagnon, Vallee, and Penn .4
The procedure followed by the parties, particularly the Union and Local 2851,
in negotiating the agreements is in the considered opinion of the Trial Examiner of
the utmost importance, since it plays an important role in his ultimate determina-
tion of the issues herein. For this reason he feels that it would be well to insert
herein an excerpt from Rusbino's testimony in this regard. It follows below:
Q. (By Mr. Waldron.) Now would you describe, sir, the method of
negotiation that was carried on in negotiating the agreement that was dated
December 27, 1949?
Mr. LEPIE: I didn't get the question. May I have it read back, please?
(Question read by reporter.)
The WITNESS: Of course-You want me to describe it from the outset?
Q. (By Mr. Waldron.) Yes.-A. Well, at least 60 days prior to the expi-
ration date of any contract I sent a letter, registered letter, return receipt
.requested, to the John L. Clemmey Company informing them that the-either
the contract would be expiring or that a reopening date would be approaching
and suggesting a conference between the parties, namely, the Company and
the Steelworkers Union to sit down for the purpose of collective bargaining.
Q. Will you go on from there, please?-A. And usually some brief period
after that I would usually receive a call from you, Mr. Waldron, stating that
the Company had apprised you of the receipt of my letter and suggesting that
a conference date be arranged; and they would leave the arrangements to you
and I on the basis that we would have to match our schedules to see when
there would be a convenient date.
After that, a meeting date would be agreed to, a conference date would be
agreed to between yourself and myself and usually the collective bargaining
conferences would be held at the plant office in Mansfield, Massachusetts.
At that time the Union would submit to you a list of written proposed changes
that it sought in the agreement and from there on in it was oral collective
bargaining across the table.
Q. And would the committee, along with yourself and myself, participate
in that oral collective bargaining?-A. The principal participants, of course,
were yourself and myself. I would occasionally turn to them and ask questions
because they were much better equipped to answer questions of plant problems
that would occur on a day to day basis and in view of the fact that they are in
the plant each and every day and I am not.
Q. I will ask you again, Mr. Rusbino, whether or not the committee would
participate in the negotiations.-A. I don't know exactly what you mean by
"participation."
Q. Were the committee members allowed to speak for themselves and express
their opinions on the question of the demands made by the union?-A. Why
certainly. They would take up any point or embellish on any point that I
presented as an official proposal, yes. They would comment on the proposals.
Q. And isn't it true that the individual committee members would put forth
their own proposals, too?-A. No, sir.
6 See supra.
JOHN L. CLEMMEY COMPANY, INC . 607
Q. And forcefully argue their own proposals?-A. They would argue on
behalf of the written proposals which I had submitted to you, yes.
Q. So that it would be fair to say that during the period of time that Mr.
Vallee, Mr. Penn and Mr. Gagnon negotiated with you-with myself, they
took full participation in the negotiations.-A. I wouldn't go along with that
term, "full participation."
Q. Well, so that we can clear up the record, do you want to leave it, sir,
that only you and I carried on negotiations with ourselves, without their
help?-A. I want to state clearly that the committee would embellish on any
point which I brought forth which was listed in our written proposals. I
would consult with them from time to time as to their thoughts on some of
these things in view of the fact that they were in the plant on a day to day
basis. But beyond that point, I would say no, that there was no further partici-
pation beyond that point.
Q. Well then, you would say that their participation was limited merely to
an advisory capacity? Is that the way you want to leave it for the record,
sir?-A. I'd rather have it on a consulting capacity.
Q. Merely on a consulting capacity.-A. Because actually, I think that is
exactly what it was.
TRIAL EXAMINER: I don't like to interrupt, and I don't do it very often; but
that raises a question in my mind.
Did you discuss with the local committee the proposals in the proposed con-
tract before you consulted with Mr. Waldron?
The WITNESS: Oh, yes, sir, we did. Yes, sir.
From the foregoing it is obvious that the Union considered the membership of
Local 2851 and its officers of minor importance insofar as negotiating collective-
bargaining agreements with the Respondent is concerned. This despite the plain
language of Section 7 of the Act. The significance of the Trial Examiner's obser-
vation in this regard will be apparent below.
The third agreement between the parties was entered into on January 3, 1951,
and was for a period of 1 year from February 5, 1951, with a similar automatic
renewal clause as set forth in the previous agreements. An examination of the
agreement shows that Rusbino and one Lawrence N. Spitz, regional director, signed
on behalf of the Union, and the following on behalf of Local 2851: Gagnon,
president, Vallee, vice president, and Penn, recording secretary.
We now come to the agreement for the period February 5, 1952, to February 4,
1953. The record clearly shows that the circumstances surrounding the execution
of this agreement are of the utmost importance for the reason that the Respondent
relies to a great extent upon what transpired at that time as a defense to the alle-
gations in the complaint as regards its violation of Section 8 (a) (5) of the Act.
For that reason the Trial Examiner deems it necessary to dwell at some length on
the events that transpired at that time.
Rusbino testified that approximately 4 days before Christmas in 1951 he re-
ceived a telephone call from James Waldron, Respondent's attorney,5 regarding a
serious situation that had arisen among the employees in the plant. Waldron sug-
gested that he come to Mansfield at once for the purpose of negotiating a new con-
tract. Waldron then told Rusbino that the source of the disturbance among the
employees was primarily the fact that up to that date there had been no negotiation
for a new contract, and that the employees were concerned because the Respondent
was ready to pay a Christmas bonus and wanted to negotiate and discuss this matter
with the Union in order to pacify the employees in the plant. Rusbino advised
Waldron that he was unable to come to Mansfield due to other commitments, and
requested Waldron to put Reginald Gagnon, then president of Local 2851, on the
phone. Waldron did so. Gagnon corroborated Waldron as to the seriousness of
the situation at Mansfield. Rusbino's account of his conversation with Gagnon is,
in the.opinion of the Trial Examiner, of the utmost importance since it goes to the
heart of the Respondent's defense to the allegation in the complaint that it violated
Section 8 (a) (5) of the Act. For this reason the Trial Examiner sets forth below a
pertinent excerpt from Rusbino's credible testimony in this regard:
Q. All Tight. What happened after that? Did you talk to Gagnon?-
A. Yes. Mr. Gagnon then came to the phone and more or less substantiated
what Mr. Waldron had told me and I told him if that was the situation that
he could negotiate this issue with the Company provided that he would hold a
5 Reginald Gagnon, president of Local 2851, actually made the call and put Waldron on
the phone at Rusbino's request. See infra.
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
special meeting of the members who were employees of the John L. Clemmey
Company after discussing the item with the Company and making the presen-
tation of the results of the discussion to them and if a majority of those em-
ployees, members of our union, ratified the settlement, that I would assent to
the results. And I asked him further, however, to call me back and let me know
the results of both the sessions with the Company and with the local, union
membership.
Q. All right. Did that terminate that telephone conversation?-A. Yes.
Q. At that time?-A. At that point it did.
Q. Did you subsequently on-Did you receive another telephone call on the
same day from either Mr. Gagnon or Mr. Waldron?-A. Yes, sir, within an
hour of the same day.
Q. From whom did you receive this second telephone call?-A. From Mr.
Reginald Gagnon, within an hour of our first telephone conversation.
Q. Now tell us the substance of this conversation.-A. The substance of
the conversation was that the Company had made an offer to pay a Christmas
bonus to the employees in lieu of any wage settlement and that Mr. Gagnon
then immediately held a meeting of the members in the combined locker and
shower room in one of the rear buildings of the plant and that the offer of the
Company was unanimously accepted. And I then informed Mr. Gagnon that
on that basis I would assent to the settlement on the basis that ultimately it
was the employees who would have to be satisfied.
Q. All right.-A. And I then asked.him to put Mr. Waldron on the line if
Mr. Waldron was there with him, and he said that Mr. Waldron was, that he
was calling from the plant office; and I told Mr. Waldron that insofar as I was
concerned it was in agreement, that the three committee members, so-called,
could sign a-could sign the agreement and that at a later date copies could
be forwarded to me for signature.
Q. Did you tell him at that time, notwithstanding the fact that you did not
sign the extension, that as a representative of the International you were rati-
fying the agreement and accepting the agreement?-A. That's right, sir, and
that's what I told him.
Q. And does that account for the fact that your name does not appear on
General Counsel's Exhibit No. 5?-A. Yes, sir, that's correct. [Emphasis
supplied.]
As indicated above, Rusbino's testimony in this regard was corroborated in sub-
stance by that of Reginald Gagnon, a witness called by the Respondent in support
of its case-in-chief at the hearing herein.
After his conversation with Rusbino, Gagnon called a meeting of the members
of Local 2851, in the locker room at the plant, at which time he presented the Re-
spondent's offer. The employees voted on the question and a majority of those pres-
ent voted to accept the Respondent's proposition. Shortly thereafter Gagnon re-
turned to the Respondent's office with the members of the negotiating committee
and advised Attorney Waldron and President Clemmey that Local 2851 would sign
the contract; In the meantime, however, he had called Rusbino again and informed
him of the vote of the membership. Rusbino then advised him to go ahead and
sign the agreement, since in the final analysis it was the employees themselves who
had to be satisfied. At the same time Rusbino talked to Attorney Waldron and ad-
vised him in substance that it was all right for the negotiating committee of Local
2851 to sign the contract. Shortly thereafter Gagnon, Vallee, and Penn signed the
agreement. Though Rusbino was sent a copy thereof he never did sign it.
The record shows that the 1953-54 contract was negotiated by Rusbino with the
members of the negotiating committee of Local 2851, merely sitting idly by as "con-
sultants," as Rusbino dubbed them in his testimony. The copy of this agreement
that was placed in evidence by the General Counsel at the hearing herein shows that
Rusbino signed for the Union, and no one for Local 2851. Rusbino in his testimony
stated that only he and Waldron signed the agreement at the time, but that it was
agreed that the members of the negotiating committee for Local 2851 would sign
later when the final draft of the agreement was typed up, which they did.6
The agreement for the year February 4, 1954, to February 3, 1955, contained
the usual automatic renewal provision. The record shows that the agreement was
signed by Rusbino on behalf of the Union, and also by the negotiating committee
of Local 2851. This agreement, with certain modifications, was renewed in January
See General Counsel's Exhibit No. 7.
JOHN L. CLEMMEY COMPANY, INC. 609
1955, and was signed by the same persons on behalf of the Union and Local 2851,
respectively.
Sometime in October 1955, James A. Beattie succeeded Rusbino as the field
representative for the Union, and Local 2851 then came under his "jurisdiction."
In other words one of his duties was to service Local 2851, as Rusbino had done
in the past. This brings us up to the negotiation of the agreement for the period
February 4, 1956, to February 4, 1957, which as indicated above is the "bone of
contention" herein.
According to Beattie's credible testimony, he checked over the situation at the
Respondent's plant and in particular the agreement then in effect between the Union
and the Respondent as well as past agreements between the parties. As to the
latter he admitted that he gave them only a "meager" or cursory check. The
importance of his action in this regard will be apparent below.
On November 21, 1955, Beattie wrote the Respondent a letter in which he
requested a meeting for the purpose of negotiating a new contract for the year
February 4, 1956, to February 4, 1957. After an exchange of correspondence a
meeting was arranged for December 19, 1955, at the Respondent's offices in
Mansfield, Massachusetts.
The meeting was held on schedule. Present for the Union was James A. Beattie,
field representative for Local 2851, Paul Butler, president, James Guerrini, vice
president, and Edward Medeiros, recording secretary; for the Respondent, John L.
Clemmey, Jr., president, and James T. Waldron, Esq., its attorney.
Prior to the meeting of December 19, 1955, Beattie met with the members of
Local 2851 at a regular constituted meeting, at which time the terms of the new
agreement were discussed. As will be shown below Beattie relied to some extent
on the matters discussed at the above meeting in explaining the "demands" he
presented to the Respondent at the opening of the meeting on December 19, 1955,
of which more anon. Though Beattie in his testimony referred to the above as a
meeting of the membership of Local 2851, his testimony in this regard was some-
what modified by the credible testimony of James Guerrini, vice president of the
Local. According to Guerrini's credible testimony, there were only about 8 present
at the meeting, including the 5 officers of Local 2851. Hence it is obvious that
only a mere handful were present at the time the so-called "demands" were
discussed.
As indicated above there is no serious conflict in the record in regard to what
transpired at the meeting of December 19, 1955, and the important events that
followed thereafter, between the date of the meeting and December 23, 1955.
After long and careful consideration, the Trial Examiner is convinced that the
clearest and most accurate account of what transpired during this important period
is best told in the credible testimony of James Guerrini, vice president of Local
2851, a witness called by the Respondent to testify on its behalf at the hearing
herein.
According to Guerrini, the following were present at the above-mentioned meeting:
For the Union, James A. Beattie, field representative; for Local 2851, in addition to
himself, Philip J. Butler, president, and Manuel Madeiros, recording secretary; and
for the Respondent, James L. Waldron, Esq., its attorney. At the onset of the
meeting Beattie, who acted as spokesman for the Union and Local 2851, presented
to the Respondent the following:
LOCAL 2851-J. L. CLEMMEY COMPANY December 19, 1955.
UNION CONTRACT PROPOSALS
(1) Additional paid holidays; November 11th, October 12th, Employees
birthday.
(2) A Christmas Bonus: Employees with service of one year or more 100
hours. Employees with six months of service but less than one year, 60 hours.
Employees with less than six months of service, 40 hours.
(3) Gloves, rubbers, and other protective clothing for employees to be
supplied by the Company whenever necessary.
(4) All employees in the employ of the Company for one year or less
shall receive one week's paid vacation of 40 hours computed at average hourly
earnings.
All employees in the employ of the Company over one year, but less than
three years shall receive one and one-half weeks' paid vacation of 60 hours
computed at average hourly earnings.
450553-58-vol. 118-4 0
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All employees in the employ of the Company three years or over shall
receive two weeks paid vacation of 80 hours computed at average hourly
earnings.
All employees in the employ of the Company 12 years or over shall receive
three weeks of paid vacation of 120 hours computed at average hourly
earnings.
(5) An up-to-date Seniority list shall be furnished by the Company to be
reviewed by the Union and an agreement reached.
(6) A return to the Union Shop Provision with a thirty-day probationary
period. A return to the standard checkoff provisions.
(7) All increases from the cost of living shall be added to the base rates
now in effect and an additional General Wage Increase of fifteen cents per
hour shall be granted.
(8) There shall be top seniority for Union Officers.
(9) The Grievance Procedure shall have language change in the second step
as there are no weekly meetings held.
Some discussion was had on the above during the morning session, but accord-
ing to Guerrini the main discussion at that time was regarding the payment by
the Respondent of its usual Christmas bonus. The reason the representatives
of Local 2851 insisted upon injecting this issue into the discussion was that the
rank-and-file membership of Local 2851, individually and collectively, demanded
that they do so before the meeting. After some discussion the Respondent's repre-
sentative suggested an adjournment for lunch so that he could discuss the Union's
proposals with President Clemmey.
During the afternoon meeting many of the Union's proposals were discussed,
particularly additional paid hoildays, clothing allowance, and wage increases. Guer-
rini's account of what transpired at the afternoon session is most interesting. In
the opinion of the Trial Examiner an excerpt from his testimony would be helpful
to all. It follows below:
Q. All right. Will you tell me what further happened during the course
of that meeting?-A. And then we started to talk about getting November
I1 or October 12 or the employee's birthday as a day off with pay. And
you said it was possible.
And from that we went to No. 3 on this list, gloves or rubbers or pro-
tective clothing; and I think you and Mr. Beattie came to an agreement that
$ 10 would be approved for that. And from there I think we jumped down
to No. 7. It was, "All increases from the cost of living shall be added to
the base rates now in effect and an additional General Wage increase of fifteen
cents per hour shall be granted."
Then you and Mr. Beattie got a little bit tangled up on that one. I think
that your figures were something like 471/2 cents an hour, and you told Mr.
Beattie it was impossible for the Company to pay that 471/2 cents an hour.
And from there you went to four and five and 6 and down to eight and
nine; and as far as I know, Mr. Beattie and Mr. Butler and Mr. Mediros
jumped up off of their seats and were headed out for the door, and you tried
to stop them from going out. I think they came back in again and sat down
and you offered them something like three or four cents an hour; and you
wanted to give them whatever day they wanted, whether it was November 11
or October 12 or the employee's birthday.
You agreed previous to that to the $10 for protective clothing, and then
I think that you and Mr. Beattie went back to No. 7 again, and this time
they got up and they were three-quarters out the door. You asked them
if they would call the men together and tell them what the Company's offer
was, and Mr. Beattie said that he was not going to hold a meeting at the
J. L. Clemmey Company Plant, and you told us that if we were willing to
bargain for a contract that there was a lot more that we could get. And
I asked. you if you would tell us then what you meant by that. By that time.
Mr. Beattie says, "Let's go. Come on." So Mr. Medeiros says, "Come on,"
and we went out. And when we were in front of the office I mentioned it-
maybe Mr. Beattie didn't hear me, but I said
Q. (By Mr. Waldron.) Now, Mr. Guerrini, have you told the Examiner
all of the conversation that took place at the conference in Mr. Clemmey's
office on December 19th, in the afternoon?-A. No, I don't think I have,
JOHN L. CLEMMEY COMPANY, INC . 611
because you and Mr. Beattie got kind of steamed up there and you were
going a little too fast for me to catch everything.
Q. There was other conversation?-A. I know there was.
Q. Do you have any memory of it, sir?-A. Well, like I says, you both
were going at it kind of hot there for a few minutes, and I couldn't catch
everything that was going on.
Q. All right. Do you have any memory whatsoever of any conversation
between yourself and myself at that meeting?-A. I don't remember.
Q. You don't remember, sir?-A. No.
Q. Would it refresh your recollection, sir, if I asked you whether or not
you requested myself to seek permission from the Company to hold a meeting
with the union members as had been done in previous years?
Mr. LEPIE: I object to it.
TRIAL EXAMINER: Overruled. You have your exception.
The WITNESS: I think we did.
Q. (By Mr. Waldron.) Well now, so that we can keep this record straight,
Mr. Guerrini, who asked permission or who asked the question?-A. I think
I did.
Q. If you have a memory of it, sir, would you gave the conversation that
took place in regard to that request?-A. On December 19th?
Q. Yes, sir, in the afternoon session.-A. Off hand, I don't remember.
Q. All right. That's all right, Mr. Guerrini. Now, Mr. Guerrini, that
meeting came to a conclusion, did it not, on that afternoon?-A. It did.
Q. And you left those offices and went out of the offices?-A. That's right.
Q. Back to your employment or to your homes?-A. That's right.
Q. And you had no further conversation with me that day?-A. That's
right.
As indicated above Waldron, the Respondent's attorney, met with the employees
in the plant sometime after the above meeting ended and advised them of the Re-
spondent's position as to the terms of the contract for 1956-57, and in particular
as to the Respondent's counterproposals. During the course of his talk with the
employees the question of the so-called Christmas bonus was injected into the
discussion by several of the employees including Guerrini.
On the next day, December 20, and thereafter until the afternoon of December
23, 1955, there was considerable discussion among the employees as to (1) the pay-
ment of the'Christmasbonus, (2) the attitude of the Union's representative, Beattie,
as to the postponement of negotiations for the 1956-57 contract until after the
Christmas holidays, and its effect on their receiving the expected Christmas bonus,
and (3) the possibility of reaching an agreement with the Respondent before Christ-
mas. The record clearly shows that there was considerable unrest among the
employees during the week in question. As the Trial Examiner sees it the members
of Local 2851 were primarily concerned about their receiving the Christmas bonus.
As a result constant pressure was put on the officers of Local 2851 to effectuate an
agreement with the Respondent in order to assure the payment of the anticipated
bonus. The Trial Examiner's observation is amply supported by a preponderance
of the reliable and probative evidence adduced at the hearing herein. What the
members of Local 2851 did to assure their position in this regard will be discussed
and disposed of below.
As indicated above there was considerable unrest among the membership of Local
2851 after December 19, 1955. The failure of the Union, acting through Beattie,
its field representative, to reach an agreement with the Respondent that at least
provided for their anticipated Christmas bonus was unquestionably the primary
cause of the unrest. That this is so is amply demonstrated in the record. For
example, on or about December 20, 1955, a petition addressed to the officers of
Local 2851 demanding a special meeting of the local to consider this issue was
circulated among the membership by Joe Canty and William Vallee, rank-and-file
members of the local at'this time. After several signatures had been secured Canty
and Vallee presented the petition to Butler, as president of the local. Butler told
them that he would not call a special meeting and handed them back the petition.
Unquestionably this was a motivating factor behind the action of Butler, Guerrini,
and Medeiros in requesting a meeting with President Clemmey on December 21,
1955, of which more anon.
On or about December 21, 1955, the following officers of Local 2851, Butler,
president, Guerrini, vice president, and Medeiros, called on President Clemmey and
asked him if it would be possible for the members of Local 2851 to negotiate a new
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreement for 1956-57, in which would be embodied the agreement that was to
expire February 4, 1956, plus any one of the additional holidays set forth in the
Union's "demands." 7 They further advised him that there would be "no strings
attached" to the signing of the new agreement. According to Guerrini what they
.meant by "no strings attached" was as follows:
Q. (By Mr. Waldron.) What took place after that, sir?-A. Well, we were
trying to tell Mr. Clemmey that he could take our word for it, in case we
couldn't get in touch with the men, if we signed any papers he didn't have to
worry about us taking him into court or anything like that.
Q. And did Mr. Butler participate in that conversation?-A. He sure did.
Q. Did Mr. Medeiros participate in that conversation?-A. He did.
Q. And did yourself?-A. Yes, sir.
President Clemmey told the committee that it was impossible for him to negotiate
any contract with them and advised Butler, as president of Local 2851, to get in
touch with Beattie, and that he in turn would get in touch with the Respondent's
attorney, Waldron. Clemmey then told the committee in substance that if they
could get Waldron and Beattie together then it was possible the parties could sit
down and negotiate the new agreement. Butler then advised President Clemmey
that he would get in touch with Beattie, and Clemmey said he would likewise try
to get in touch with Attorney Waldron. The committee then left Clemmey's office
and returned to the plant.
According to Guerrini's credible testimony he and Butler had the following
conversation shortly after they left Clemmey's office.
Q. (By Mr. Waldron.) Now will you tell me, sir, what took place next as
far as you participated in any negotiations concerning the labor contract for
the Clemmey Company? Did you discuss this matter with Mr. Butler and
Mr. Medeiros?-A. I did.
Q. After you left Mr. Clemmey?-A. That's right. Mr. Butler and I talked
about it and he told me that he was going to try to get in touch with Mr.
Beattie and some of the men of Local 2851 approached us and asked us if we
made any headway; and we told them that it was impossible, that we'd have
to get Mr. Beattie and Mr. Waldron together. And Mr. Butler told the men
of Local 2851 that he was going to try to get in touch with him, and the
men were satisfied with that answer from Mr. Butler.
Q. Now do you have any knowledge of whether or not Mr. Butler was
able to contact Mr. Beattie?-A. He told me that he couldn't get in touch
with Mr. Beattie.
Q. And when did he tell you that, sir?-A. The following day.
Q. And would this day be Wednesday or Thursday?-A. It could be either
day.
Q. It could be either day?-A. Yes.
Q. Did you talk with him after his conversation in which he told you he
could not get in touch with Mr. Beattie?-A. Yes, sir.
Q. Did you ask him whether or not he had tried again?-A. I think I
asked him two or three times that week.
Q. And what was his answer?-A. He said he never-He said he called and
he said not at any time did he have-That he did not talk to Mr. Beattie.
Q. You heard Mr. Beattie testify in this room two weeks ago yesterday?-A.
I did.
Q. Did you hear Mr. Beattie testify that he had talked with Mr. Butler by
telephone on Thursday-A. That's right.
Q. -the 22nd day of December, 1955?-A. I did.
Q. Did Mr. Butler report that telephone conversation to you as vice-president
of the Union?-A. He did not.8 [Emphasis supplied.]
The importance of this testimony will be apparent below, particularly since it
goes to the heart of the Trial Examiner's ultimate disposal of the issues herein.
Butler called Beattie on the night of December 22, 1955. Beattie's credible testi-
mony in this regard is of the utmost importance since it throws considerable light
on the situation that confronted the officers of Local 2851 when they met with the
Respondent's representatives on December 23, 1955. Again it goes to explain the
See .supra.
8 Guerrini later on in his testimony admitted that Butler did advise him as to Beattie's
refusal to come to the plant to negotiate the new agreement. See infra.
JOHN L. CLEMMEY COMPANY, INC. 613
temper of the membership during the week of December 19, 1955, and the causes
behind their pressure on the officers of the local.
Q. (By Mr. Lepie.) What did he say to you during this telephone call and
what did you say to him? Give us the substance of the telephone conver-
sation.-A. He called me up and said that the Company wanted to pay off
the bonus there, and for that to sign a contract for the coming year in its
entirety, and I told him, and he asked me how I was set up for time, and I
said that when Mr. Waldron had told me on the 19th that he couldn't see us
until after Christmas because he was tied up, that I had made commit-
ments to go other places and that I was not interested in a contract that just
paid off the Christmas bonus, that the people had said to us quite strongly
in the November meeting that they had not received a raise for five years and
had always been paid off with a Christmas bonus, that they wanted a bona
fide real contract with money added to the wage rate, that that was the only
contract that I was interested-in, a full and conclusive, real, bona fide contract,
and that we had until February 4 to consummate one, and I didn't see any
reason for rushing down a couple of days before Christmas to consummate
a contract for the ensuing year by being paid off by a bonus, and I told him
not to enter into any such situation.
With each passing day the unrest of the membership of Local 2851 increased in
tempo. On the morning of December 23, 1955, William Vallee, a former officer
of the local, went into the Respondent's offices on the first floor and on his own
initiative (insofar as this record is concerned) had one of the girls in the office
type the following:
December 23, 1955.
We, whose names are here, ask John Clemmey, President of the Clemmey
Company, Inc., to give us the same -amount of money in the same way, that he
gave it to us last year and to give us one more holiday, Armistice Day, No-
vember 11th.
If these demands are met by the Company, we will take all of the other
conditions of our labor contract now in effect and have them continue for one
year and we agree that our Officers and bargaining committee will sign a
contract.
[Thereafter follow the signatures of 41 of the Respondent's employees.]
After the girl typed the petition Vallee took the original and a copy and laid
them on 'a tank in the shop for the employees to read and sign if they desired to
do so.
On the morning of December 23, 1955, Butler told Guerrini about his conversation
with Beattie on the night before, and of Beattie's refusal to make a trip to the
Respondent's plant for the sole purpose of discussing the Christmas bonus
situation.9
Later that morning Butler, Guerrini, and Medeiros, met with Attorney Waldron
in the Respondent's office. At this meeting Waldron presented to them a draft of a
new agreement for the year 1956-57. Butler, acting as spokesman for Local 2851,
advised Waldron that he hesitated to sign the document without Beattie's approval.
As a result of Butler's position the committee did not sign the agreement, even
though embodied therein was the position taken by the committee in their proposal
to President Clemmey on December 21, 1955.
Sometime in the early afternoon of December 23, 1955, the attention of Butler,
Guerrini, and Medeiros was directed to the above-described petition. At the time
several members of the local were standing around the tank where Vallee had put
the petition for the employees to sign. After reading the petition and looking over
the signatures Butler signed it. Guerrini and Medeiros did likewise. Butler then
picked up the petition and went back upstairs to the Respondent's office and met
again with Attorney Waldron. After some discussion Butler presented the petition
to Waldron and advised him that the committee was ready to discuss the proposed
agreement. Waldron then called President Clemmey into the conference room.
What happened thereafter is best told in Guerrini's testimony in this regard.
Q. (By Mr. Waldron.) And then, sir, did we finally arrive at an agreement
that was acceptable to the negotiating committee?-A. We did.
Q. And then what next step was taken?-A. I think you got up from the
table and you went in and called Mr. John L. Clemmey, Jr. into the room.
° See Beattie's testimony supra.
614 DECISIONS OF NATIONAL LABOR RELATIONS, BOARD
Q. I see.-A. And he sat at the head of the table and he told Mr. Butler
that if he was sure that he wanted to do this, and Mr. Butler says, "Yes, that's
what Local 2851 wants, and we are going to accept it." So Mr. Clemmey says
that if he was sure, he was hoping that we would not drag him into any affairs
after we had signed, and we told him he had noting to worry about.
So then Mr. Butler signed-put his signature down, I did, and then Mr.
Medeiros put his signature down. And then the paper was handed to Mr.
John L. Clemmey, Jr., and he signed it.
Q. Now is that all the memory you have, sir, of the conversation that took
place up to that time between Mr. Clemmey, Mr. Butler, yourself and Mr.
Medeiros?
TRIAL EXAMINER: Off the record.
(Discussion off the record.)
TRIAL EXAMINER: On the record.
Proceed.
Q. (By Mr. Waldron.) Mr. Guerrini, the last question I asked you was did
your last statement exhaust your memory of all the conversation that took
place between John L. Clemmey and your committee on the 23d day of
December 1955, when you met with Mr. Clemmey and myself in his office?-
A. Well, after the committee had signed, I think before he signed he advised
Mr. Butler if he didn't think he should wait until after the holidays before
he signed the paper, and Mr. Butler told him no, that it was all right, that we
had given our word to him, that it was all right for him to sign the paper.
Q. Now after signing by both parties of this agreement, did you immediately
leave the room, or did you remain there?-A. We remained there.
Q. Can you tell us approximately how long a period of time?-A. I'd say
until almost three o'clock.
Q. Can you tell me whether or not anyone left that room during that
period of time, if you have memory of it?-A. No. [Emphasis supplied.]
The agreement in question is set forth below.
December 23,1955.
It is agreed by and between the party signators in this agreement that the
labor contract in existence between the John L. Clemmey Company, Inc. and
United Steelworkers of America, C. 1. 0., Local #2851 from February 4, 1955
until February 3, 1956 shall continue for a further period from February 5, 1956
until February 4, 1957 except eligibility of a vacation measurement and pay-
ment shall be based upon an eligibility of July 1, 1956 and the terms and
conditions of an agreement of a modified union shop as set forth in a letter
of agreement between the Clemmey Company and the Union dated January 1,
1954 shall be continued in full force and effect until February 4, 1957 and
furthermore, November 11, 1956 shall be considered a paid holiday under the
provision of Section 1, Article 10 of the contract and Section 2 of Article 13
shall be changed to read "new employees hired after February 5, 1956 should be
paid a wage of not less than $1.00 per hour" and that Article 15 entitled
VACATIONS, Section 1 and sub-sections A, B and C and Section 2 wherein the
figures July 1, 1955 appears should be changed to July 1, 1956 and all other
terms and conditions to remain the same.
JOHN L. CLEMMEY COMPANY, INC.,
By J. H. CLEMMEY, PRES.,
President.
Witness to signature:
(Signed) JAMES T. WALDRON.
OFFICERS AND NEGOTIATING COMMITTEE OF
LOCAL UNION #2851,
(Signed) PHILIP BUTLER,
(Signed) JAMES GUERRINI,
(Signed) EDWARD MEDEIROS,
UNITED STEELWORKERS OF AMERICA, C. I. O.
JOHN L. CLEMMEY COMPANY, INC . 615
Sometime in the early part of January 1956, Beattie was advised by Butler of the
signing of the above agreement by the committee for Local 2851 . Shortly there-
after the Union filed the charge upon which the complaint herein is predicated.
After filing the charge Beattie wrote Attorney Waldron on January 17, 1956,
the following letter:
CLARKIN AND WALDRON, January 17, 1956.
Fall River National Bank Building,
Fall River, Mass.
Attention : Mr. JAMES T. WALDRON.
DEAR MR . WALDRON: As I have not heard from you regarding a date to
continue negotiations between J. L. Clemmey Co. Inc. and the United Steel-
workers of America, I am writing to you for this purpose.
I would suggest meeting at your office or at the office of the United
Steelworkers of America for the sake of convenience.
Hoping to hear from you immediately as to a date , time and place to
continue said negotiations, I am
Very truly yours,
(Signed ) James A. Beattie,
JAMES A. BEATTIE , Representative.
UNITED STEELWORKERS OF AMERICA , AFL-CIO.
JAB: GB
Registered Mail # 121389.
Return Receipt Requested.
Waldron replied to Beattie's letter on January 24, 1956. In his letter Waldron
called Beattie's attention to signing of the above agreement and further stated that
he saw no need for further negotiations.
On January 25, 1956, Beattie replied to Waldron 's letter of the 24th, in which
he disavowed the action of Local 2851 , and again requested that negotiations for
the contract of 1956-57 be resumed.
Insofar as this record is concerned there were no further communications between
the Union and the Respondent . Nor is there any evidence that either the Union
or the Respondent made any further effort to resume negotiations for an agreement
for the year February 4, 1956, to February 4, 1957.
Conclusion
It has been well said that hard cases make bad law . Such is the situation herein.
Here we have a set of facts that are unique to say the least. In order to understand
the action of the committee for Local 2851 and the Respondent in entering into the
agreement on December 23, 1955, we must first look to the past . It must be remem-
bered that a somewhat similar situation arose in December 1951, when Local 2851
negotiated an agreement with the Respondent for the year February 4, 1952, to
February 4, 1953. At that time there was no representative of the Union present at
the time of the negotiations and when the agreement was signed . Moreover the
record shows that even though the Union was recognized as the exclusive bargaining
representative of the Respondent 's employees , and named in the agreement as one
of the contracting parties , no responsible representative of the Union ever signed
this particular agreement . To be sure the president of Local 2851 talked to
Rusbino , the Union 's representative , during the course of the negotiations over the
phone and received his approval for whatever action the committee deemed best
for the membership of the local . In the instant case Beattie , the Union 's repre-
sentative , not only refused to approve the committee 's suggestion that negotiations
be resumed before Christmas so that they could receive their accustomed Christmas
bonus, but also refused to even come to the Respondent 's plant and discuss this
issue. His reasons for taking this position have been set forth above, and will not
be reiterated here. Suffice it to say that the record shows that Beattie reasoned
that it was unnecessary because the agreement then in effect did not expire until
February 4, 1956, and there was ample time for the Union to negotiate an agree-
ment with the Respondent that was more in keeping with the proposals he submitted
to the Respondent on December 19, 1955.
There is no question as to the Union 's status as the exclusive bargaining agent for
the Respondent 's employees in the appropriate unit. Nor is there any question that
it represented a majority of the employees in the appropriate unit at all times
material herein, and the parties so stipulated at the hearing herein.
In the circumstances described above the Trial Examiner is convinced and finds
that the Respondent was under a statutory duty to bargain with the Union as the
exclusive bargaining representative of its employees , and that by entering into an
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreement with Local 2851 without the express approval of the Union it violated
Section 8 (a) (5) and (1) of the Act. From a legal standpoint the position of
the Respondent is in some respects similar to that of the employer in the Borg-
Warner case recently decided by the United States Court of Appeals for the Sixth
Circuit.1° In the considered opinion of the Trial Examiner the court's dictum in the
cited case is appropos to the legal issues involved herein. Consequently excerpts
therefrom follow below:
The Board contends that to permit an employer "to go behind the designated
representatives in order to bargain with the employees themselves" would
undermine the representative status of the Union contrary to the provisions of
Section 9 (a) of the Act which provides that the representatives selected by
the majority of the employees "shall be the exclusive representatives of all
the employees" in the bargaining unit. Medo Photo Supply Corp. v. N. L. R. B.,
321 U. S. 678, 684, 685, 687; May Department Stores Co. v. N. L. R. B., 326
U. S. 376, 383, 384. In Medo Photo Supply Corp. v. N. L. R. B., the Court
held that orderly collective bargaining requires that the employer be not per-
mitted to go behind the designated representatives, in order to bargain with
the employees themselves, even though the employees asked that the desig-
nated representatives be disregarded; that the duty of the employer to bargain
collectively with the chosen representatives of his employees also involves "the
negative duty to treat with no other." . .
The Company attempts to justify its position by pointing out that it at all
times recognized the Union as the exclusive bargaining agent and did all of
its bargaining with it as such agent. It contends that there is nothing in the
Act which requires that after all issues have been agreed upon the written
contract embodying the agreement must be made with the agent who negotiated
the agreement. Although there is no specific provision to that effect, we
believe it is clearly implied that the designated bargaining agent is the party
with whom the contract is to be made unless it voluntarily relinquishes such
right in favor of another. The collective bargaining contract is not the con-
tract of employment. It is rather the trade agreement which controls the
individual contracts of employment. J. I. Case Co. v. N. L. R. B., 321 U. S.
332. It is a strained construction of the Act to say that the party representing
the employees and negotiating such a trade agreement for their benefit is
not entitled to complete the job by having the contract which it has negotiated
executed with it as the representative of the individual employees for whom
it is acting. Such a contract is necessarily executed with a representative of
the individual employees. We fail to see the reasoning which would authorize
the substitution of the Local, not the official representative of the employees,
for the Union which is the official representative of the employees, over the
objections of the Union. The fact that the Union offered to share this right
with its Local did not give the Company the right to insist that it relinquish
the right completely. The Company was not within its rights in insisting
upon its proposal pertaining to this phase of the case. [Emphasis supplied.]
Let us now look at the other side of the coin and consider the position of the
Respondent at the time it entered into the agreement with Local 2851. It must
be remembered that in December 1951 a somewhat similar situation arose and it
was Local 2851 who negotiated and signed the agreement. Moreover, no repre-
sentative of the Union ever signed it, and there is no evidence in the record that
any responsible official of the Union ever at any time lodged a protest with either
the Board or the Respondent in this regard. To be sure Rusbino gave the officer
of the local permission to negotiate and sign the agreement providing that it satis-
fied the membership of Local 2851, since, as he put it, they, in the final analysis,
were the ones to be satisfied. When one considers this background in the light of
the events of the week of December 19, 1955, and in particular the refusal of
President Clemmey to negotiate with the officers of Local 2851 without a represent-
ative of the Union being present, when they requested him to do so on December
21, 1955, despite the fact that they coupled their request with their assurance that
the Respondent would be held harmless in the event of any controversy over the
matter, it becomes most difficult to find an element of bad faith on the part of the
Respondent during the whole affair. Again it must be remembered that President
Clemmey suggested to the committee at the time that they get in touch with Beattie
10 See N. L. R. B. v. Wooster Division of Borg-Warner Corporation ; International Union,
United Automobile , Aircraft and Agricultural Implement Workers of America, UAW-CIO
v. N. L. It. B., 236 F. 2d 898 (C. A. 6).
JOHN L. CLEMMEY COMPANY, INC. 617
and inform him of the situation. He also assured the committee that he would
get in touch with the Respondent's attorney, James T. Waldron, and advise him of
the situation commenting at the time that it was up to Waldron and Beattie to
work out and negotiate an agreement. Again it must be remembered that Butler,
president of Local 2851, called Beattie on the night of December 22, 1955, and
informed him of the situation in the plant and the unrest among the membership
of the local. Beattie's reaction has been set forth above and will not be restated.
Suffice it to say that Beattie's refusal to participate in the negotiation proposed
by Butler was never communicated to either President Clemmey or Attorney
Waldron at the time the local and the Respondent entered into the negotiations and
signed the agreement in question on December 23, 1955. In the opinion of the
Trial Examiner Butler's failure to inform either President Clemmey or Attorney
Waldron of Beattie's attitude towards the whole affair is of the utmost importance.
This is so because President Clemmey specifically asked Butler in substance if
he knew what he was doing and the consequences thereof when the agreement in
question was presented to the committee of Local 2851 for their signatures. After
Butler assured President Clemmey that he was aware of the seriousness of the
committee affixing their signatures to the agreement, President Clemmey signed
the agreement.
When one considers all of the foregoing plus the fact that there is not a scintilla
of evidence in the record that the Respondent herein has ever at any time since
the advent of contractual relations with the Union exhibited any antipathy either
towards the Union or collective bargaining in general, it becomes increasingly diffi-
cult -to reach an equitable and honest solution to the problem before us especially
in view of the Trial Examiner's finding that the Respondent's conduct was violative
of Section 8 (a) (5) and (1) of the Act. Neither is there any evidence in the record
that the Respondent has ever at any time in the past exhibited hostility towards its
employees who are members of the Union nor engaged in any course of conduct that
tended in any manner to interfere with the rights guaranteed them in Section 7 of
the Act.
After long and careful consideration and in view of the extenuating circumstances
described and found above, the Trial Examiner is convinced that despite the fact
that he has found a technical violation of Section 8 (a) (5) and (1) of the Act,
this is the type of case that should be dismissed. His reasoning in this regard is
predicated on the theory that assuming that he would recommend the usual cease-
and-desist order and that the Respondent bargain with the Union upon request,
what useful purpose would be served? Would such a recommendation, in view of all
the circumstances described and found above, effectuate the policies of the Act?
In the considered opinion of the Trial Examiner the answer is no. Again he is
convinced that in view of the past relationship between the parties they are in a
better position to resolve their own problems, and that the issuance of the usual order
in cases of this nature would hinder rather than effectuate the policies of the Act.
The Trial Examiner has given this case long and careful consideration. He has
not reached his conclusion herein lightly, but he is convinced that this case should
be dismissed and it will be so recommended below.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in section III, above, occurring in
connection with the operations of the Respondent, described in section I, above,
technically have a close, intimate, and substantial relation to trade, traffic, and
commerce among the several States but did not tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of commerce for the reasons stated
in the Trial Examiner's conclusionary findings set forth immediately above.
V. THE REMEDY
Although the Trial Examiner has found that the Respondent's conduct described
in section III, above, was technically violative of the Act, he has nevertheless, for
reasons stated in his conclusionary findings, recommended that the complaint herein
be dismissed because he is convinced that the issuance of a cease-and-desist order,
when considered in the light of all the circumstances, would not effectuate the
policies of the Act but would on the other hand have an adverse effect on the rela-
tionship between the parties and thus contribute nothing towards industrial peace,
he therefore will recommend that the complaint herein be dismissed in its entirety.
Upon the basis of the foregoing findings of fact, and upon the entire record, he
makes the following:
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2 (5) of the
Act.
2. All employees of Respondent employed at its Mansfield plant, exclusive of office
clerical employees , timekeepers , watchmen , and all supervisors as defined in Sec-
tion 2 ( 11) of the Act, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
3. The Union was on December 23, 1955, and on January 24, 1956, and at all
times material herein , and now is , the exclusive representative of all the employees in
the above-described unit for the purposes of collective bargaining within the mean-
ing of Section 9 (a) of the Act.
4. By refusing on January 24, 1956, and at all times thereafter , to bargain with
the Union as the exclusive representative of the employees in the above -described
unit, for the reasons stated above in section III of this report, the Respondent tech-
nically has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (a) (5) and derivatively Section 8 ( a) (1) of the Act.
5. For the reasons stated above the aforesaid unfair labor practices are not unfair
labor practices that have nor do not now affect commerce within the meaning of
Section 2 ( 6) and ( 7) of the Act.
[Recommendations omitted from publication.]
Martel Mills Corporation and United Textile Workers of America,
AFL-CIO. Case No. 11-CA-961. July 11, 1957
DECISION AND ORDER
On November 9, 1956, Trial Examiner Henry S. Sahm issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices, and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the In-
termediate Report attached hereto. Thereafter, the Respondent filed
exceptions and a supporting brief.
The Board 1 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed with the exception noted in the margin
below.' The Board has considered the Intermediate Report, the ex-
ceptions, the supporting brief, and the entire record in this case, and
adopts the Trial Examiner's findings and conclusions to the extent
that they are consistent with the findings and conclusions herein made.
1 Pursuant to the provisions of Section a iu) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three-member panel [Mem-
bers Rodgers, Bean, and Jenkins].
2 After the close of the hearing the General Counsel moved to "correct" the transcript in
respect to certain testimony of witness Revis. The transcript shows that Revis testified
concerning the egg-hurling incident, which is described in the Intermediate Report, that
Supervisor Hughes told employees engaged therein "to report to him." The General Counsel
asked that the transcript be "corrected" to read that Supervisor Hughes told the em-
ployees "to pour it to 'em," and the Trial Examiner granted the motion. (See Intermediate
Report, footnote 11.) In finding that the Respondent violated the Act, we do not rely
in any way on the testimony of Revis in this respect, either as it actually appears in the
transcript, or as "corrected" by the Trial Examiner's ruling. Hence, we do not deem it
necessary to decide whether the Trial Examiner's ruling in "correcting" the record was
proper.
118 NLRB No. 75.