Nassau County Typographical Union

National Labor Relations Board - Board Decisions

Jun 30, 1953

105 N.L.R.B. 902 (N.L.R.B. 1953)

902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union Local No. 238, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America,
A. F. of L., or any other labor organization, or in any like
or related manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organiza-
tion, to form labor organizations, to join or assist the
above-named union or any other labor organization, to
bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any or all of such
activities, except to the extent that such right may be
affected by an agreement requiring membership in a
labor organization as a condition of employment, as
authorized in Section 8 (a) (3) of the Act.
All of our employees are free to become, remain, or refrain
from becoming or remaining members of the above-named
union or any other labor organization , except to the extent that
this right may be affected by an agreement in conformity with
Section 8 (a) (3) of the Act.
PROTEIN BLENDERS, 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.
NASSAU COUNTY TYPOGRAPHICAL UNION, #915 (AFL) AND
INTERNATIONAL TYPOGRAPHICAL UNION, AFL and THE
DAILY REVIEW CORPORATION. Case No. 2-CB-14. June
30, 1953
SUPPLEMENTAL DECISION AND ORDER
On December 21, 1949, the Board issued its Decision and
Order in the above -entitled proceeding finding that the evidence
did not support the • alleged violation by the Respondents of
Section 8 (b) (1) (A), 8 (b) (1) (B), 8 (b) (2), and 8 (b) (3) of
the Act, and dismissing the complaint.' Thereafter, the
charging party (hereinafter called the Company) filed a
petition in the United States Court of Appeals for the Second
Circuit, hereinafter called the Court, attacking the validity
of the Board's Decision and Order.
187 NLRB 1263
105 NLRB No. 140.
NASSAU COUNTY TYPOGRAPHICAL UNION 903
In support of its petition , the Company claimed, among
other things , that prejudicial error had been committed in
the course of the hearing because it had not had the oppor-
tunity to cross -examine the Respondents ' witness, John J.
Byrnes , with respect to certain mediation meetings between
the parties during the period of time covered by the complaint,
held before a New York State conciliator. The Court found
merit in this claim , and therefore remanded the case to
the Board for further proceedings , without deciding the
substantive unfair labor practice issues .2, The Court ' s remand
required : ( 1) The Board to reopen the hearing to permit the
Company to examine Byrnes concerning the State Board
meetings ;' ( 2) the Board and the Trial Examiner to reconsider
their findings in the light of this supplemental testimony;
and (3 ) the Board to decide whether or not it shall abide by
its order.
In compliance with the Court ' s directions , the Board issued
an order on January 24 , 1952 , reopening the record and direct-
ing the holding of a further hearing for the purpose of obtain-
ing the evidence required by the Court's remand. Said further
hearing was held April 22, 1952, before Peter F. Ward, the
same Trial Examiner who presided at the original hearing in
this case.
On November 14, 1952, the said Trial Examiner issued
his Intermediate Report . As appears more fully from the
copy of the said Intermediate Report attached hereto, the
Trial Examiner found that , although the additional testimony
would not have persuaded him to alter the findings he had
originally made sustaining the complaint in part, there was
nothing in such additional testimony which required a reversal
of the Board ' s findings dismissing the complaint . He recom-
mended , accordingly , that the Board abide by its Decision and
Order of December 21, 1949, dismissing the complaint. In
addition , the Trial Examiner denied in his Supplemental Inter-
mediate Report the Respondents ' motion made at the hear-
ing, seeking the physical deletion from the record of certain
statements of company counsel.
Thereafter, the Company filed exceptions to the Supple-
mental Intermediate Report , and a brief in support of such
exceptions ; and the Respondent Unions filed exceptions to
the denial of the motion above mentioned.
The Board 4 has considered the Trial Examiner's Supple-
mental Intermediate Report, the exceptions and brief of the
Company, and the exceptions of the Respondent Unions, and
2 Daily Review Corp. v. N, L R. B , 192 F. 2d 269
3The Court, in its opinion, referred to a single State Board meeting The record before the
Court indicated, however, that a number of meetings were held before the State conciliator
during the period of time here involved In these circumstances, and in view of the continuing
nature of conciliation meetings , the parties ( and the Board ) assumed that the remand was not
confined, in scope, to a meeting between the parties held on one particular date.
4Members Peterson and Styles, who did not participate in the original decision, are also
not participating here
291555 0 - 54 - 58
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pursuant to the Court's remand, it has reviewed and recon-
sidered its findings and order in the light of the additional
evidence adduced at the reopened hearing, and the parties'
contentions. The Board has also reviewed the rulings of the
Trial Examiner made at the supplemental hearing and finds
that no prejudicial error was committed. For the reasons
hereafter set forth, the Board (1) hereby affirms the rulings 6
and (2) concludes, as did the Trial Examiner, that there is
no basis in the supplemental record for disturbing the sub-
stantive findings and conclusions made and set forth in
the Decision and Order heretofore issued on December 21,
1949.
The original record in this case disclosed that, during the
relevant period, the New York State Mediation Board arranged
for a series of meetings between the Company and the Union
on various dates, viz, August 12, September 30, October 22,
November 6, 1947. At the supplemental hearing, counsel for
the Company was permitted to cross-examine Byrnes in
detail with respect to all discussions had between the parties
in the presence of each other at any or all of such meetings.
Briefly summarized, Byrnes' supplemental testimony was
as follows:
Byrnes testified that the August 12 meeting, which was the
first of the series of mediation meetings, was more or less
an "exploratory" meeting in which the conciliator was at-
tempting to ascertain the positions of the parties and the
status of the negotiations previously had between them.
Speaking in behalf of the Local Union, Byrnes stated that
the Union's complaint was the refusal of the Company's
president, James Stiles, on July 24, to sign the contract he
had agreed to sign, and that, in light of this company attitude,
the Union "desperately" sought other means of living with
the Company. Byrnes attributed to Stiles an unequivocal
declaration , at this initial meeting, that he would not sign
the contract proffered to him by the Union on July 24, so
long as it contained the "all-or-nothing" clause'init.e Byrnes
said he brought the contract document proffered to the
Company on July 24 with him to this conciliation meeting,
that he believed that he exhibited it to the conciliator and
explained that it represented an integration of terms orally
agreed to on July 17, but that apart from the "all-or-nothing"
provision, the terms of the contract were not specifically
mentioned or discussed. Byrnes "did not recall" that any
concrete suggestion was made by the conciliator at that
time.
Thereafter, following the several -events detailed in the
Board's original Decision , a mediation meeting between the
5 The rulings to which the parties specifically except , and the reasons for affirmance, are
set forth infra.
6 As found by the Board in its initial decision , the agreement accepted orally by Stiles on
July 17 included the "all-or-nothing" provision (87 NLRB 1264, 1285)
NASSAU COUNTY TYPOGRAPHICAL UNION 905
parties was scheduled for September 30. As the company
representatives failed to appear at this meeting , Byrnes'
testimony with respect to the general discussion he or other
union representatives had at this meeting with the conciliator
had no real probative value for purposes of deciding the issues
herein. Accordingly it need not be detailed.
The next mediation meeting was held October 22, again
following a series of interim events set forth in the Board's
original Decision.
The gist of Byrnes' testimony at the reopened hearing
concerning the positions taken by the parties at this meeting
was as follows:' The Union proffered a "P-6A" form of
contract to the Company which contained, in addition to the
various standard clauses common to all "P-6A" forms,
provisions reflecting a demand for wages and hours far more
beneficial to the employees than those negotiated July 17.
Stiles described the demands as "preposterous" and refused
to consider them for the asserted* reason that, under ITU
instructions, local unions could not change the form and hence
there was no real room for negotiation. Byrnes disclaimed
knowledge of the ITU instructions and explained that the
"P-6A" proposal reflected a "further attempt to find a way
of living with" Stiles, in view of Stiles "having refused to
sign the contract he had agreed to, and having refused to go
along with the conditions of employment incorporated in [sic]
the conditions of the contract he had agreed to. . . ." Stiles
said he would sign the contract he had originally agreed to
sign if it did not contain the "all-or - nothing" clause . He also
asked Byrnes if he would submit a contract for a year. Byrnes
answered that the Union "had given Stiles a choice and were
still giving him the same hours as the 1950 [sic] contract he
agreed to when we negotiated a new contract ." Byrnes or
Kirkpatrick ( an ITU representative ) suggested also "that in
view of Stiles ' refusal to sign the contract he had agreed to,"
conditions of employment be posted, and that ''it made little
difference " who posted the conditions of employment so long
as the form "provided substantially the working conditions
in the contract we had negotiated. The employer could post
them as easily as the union."
Byrnes "could not recall" whether he or Kirkpatrick
admitted that under the "conditions" if a nonunion man was
hired the others would refuse to work with him. What he did
recall was that Kirkpatrick stated, in answer to a question of
company counsel as to what would occur if a nonunion man
was hired, that "the question was academic and not likely
to arise." Kirkpatrick also stated , during the course of the
meeting, that the Union "would be able to get along " without
a contract . At a time during the course of the conciliation
7 The form of the questions put to Byrnes did not permit either a chronological statement
of the occurrences or a detailed narration of all that happened at that meeting.
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proceeding , when the parties were temporarily separated,
the conciliator suggested to the union representatives the
possibility of resolving the existing dispute on the basis of
a supplemental agreement appended to the last executed
contract , which supplement would contain the wages and
substantive working conditions orally agreed upon on July 17.
Byrnes admitted that he would not commit himself at that
time as to the acceptability of such a solution , beyond saying
he would take it "under advisement ." At the conclusion of
this meeting, the conciliator informed Byrnes that he was
going "to discuss the idea" with company counsel, and that
company counsel " expressed doubt as to its legality" but
would look into the matter further.
The next mediation meeting was held November 6. Only
Byrnes appeared for the Union , and only company counsel
appeared for the Company . Byrnes recollected that the "sup-
plementary contract " idea was discussed , that company counsel
"still expressed doubt as to its feasibility ," and stated that
in view of the fact that his client would be willing to try it
as a solution , he would be willing to advise his client "to
try it for what it was worth. " Byrnes told company counsel
that the Union found the proposal " unacceptable."8
No further mediation meetings contemplating the appearance
of both parties were held thereafter . As appears from the
original record, the employees represented by the Union all
"walked out" on November 10. On November 12 , the complaint
herein was issued . As appears from the supplemental record
herein, the State conciliator arranged with Byrnes for a
"personal meeting" which management representatives would
not attend . This took place on November 13 or 14. Upon
objection of Respondents ' counsel, the Trial Examiner refused
to permit any questioning of Byrnes as to what was discussed
at this meeting between Byrnes and the conciliator.
In addition to questioning Byrnes concerning the proposals
the parties made or were willing to consider as a basis for
resolving the dispute between them , company counsel also
sought to elicit the facts concerning Byrnes' knowledge of
the ITU bargaining policy and the ITU instruction bulletins
implementing that policy . Byrnes admitted that at the October
22 meeting , Stiles pointed out that under ITU instructions
accompanying the "P-6A" forms , local unions were advised
not to change any provisions of that form , and that hence no
real negotiation on such provisions could be had. Byrnes
replied, disclaiming any knowledge that ITU President Randolph
had issued such bulletin -- even after Stiles exhibited a copy
thereof to Byrnes at the meeting . Byrnes also testified that
"he had no idea " what the ITU policy was on October 22;
that he believes it "was evolving "; that although he had
received " reams " of instructions from the ITU, he had
not "had time to read them all"; that he did not "distinctly"
8 Byrnes was not questioned at the hearing with respect to the reasons why the Union would
not accept this proposal It is noted , however, that this proposed "supplementary " contract
did not include the "all-or-nothing " clause to which the Company had agreed on July 17
NASSAU COUNTY TYPOGRAPHICAL UNION 907
remember any of them ; that he had heard the "enemies of
the ITU " describe its policy as a "no-contract " policy; and
that, if "perhaps there was a no-contract policy. . . we were
not following it because we distinctly were trying to negotiate
a contract and sign a contract."
In addition to the foregoing , the supplemental record also
shows that company counsel sought to testify about the
occurrences at the October 22 meeting and the nature of the
Company's subsequent proposals to settle the controversy by
execution of a supplemental agreement to be appended to the
last contract executed by the parties . The Trial Examiner
refused to permit the testimony but allowed company counsel
to record his "offer of proof" in detail. Respondents ' counsel
opposed this procedure and, as is indicated above, moved
that the "offer of proof" be deleted physically from the
record. Its motion was denied.
In its exceptions , the Company claims that the Trial
Examiner committed error in ( 1) refusing to permit examina-
tion of Byrnes with respect to the discussions he had with the
conciliator at the "personal " meeting with him on November
13 or 14; and ( 2) denying to company counsel an opportunity
to present his testimony as to occurrences at the October
22 meeting with the State conciliator , and as to the Company's
proposals made to the conciliator subsequent to that meeting.
In support of these exceptions , company counsel claims
that the first of these rulings constituted a restriction upon
his right of cross - examination , and that the second constituted
a denial-of his right to present " rebuttal evidence made neces-
sary by the cross - examination ." We find no merit in these
exceptions.
So far as the ruling denying to company counsel the oppor-
tunity to examine Byrnes on matters discussed at the "per-
sonal " meeting of November 13 , we believe that such ruling
was proper . We seriously doubt that the Court , in its remand,
intended the examination of Byrnes with respect to his state-
ments at such a ''personal," ex parte conciliation meeting,
even though such statements may have touched upon matters
of some interest to the Company . We can perceive no prejudice
to the Company in the exclusion of Byrnes ' testimony on the
discussions at a meeting held outside the presence of the
Company and after the breakoff of negotiations . Apart from
the possibly privileged character of the private communica-
tions to the conciliator , such testimony, could have little,
if any, probative value in resolving the issues framed by
the complaint . We are here concerned not with what Byrnes
may have told the conciliator privately , but rather with
the position taken by the Respondents at the bargaining
table.
We also believe that the Trial Examiner's ruling denying
company counsel the opportunity to testify on the matter
set forth in his "offer of proof " statement should be affirmed.
In arguing to the contrary , company counsel points out that,
under the Court ' s remand, granting him the right to cross-
examine Byrnes necessarily included the right to adduce,
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as rebuttal evidence, all facts made necessary by Byrnes'
testimony on cross-examination.' We have no doubt that this
is so. However, use of the "rebuttal" procedure is inappro-
priate as a means of seeking the production of "new facts
which should have been put in before," or a "repetition,
either by a new witness or by the same former witness . . . of
facts already evidenced."10 As the "offer of proof" reveals,
most of the evidence the Company wished to produce did not
constitute "rebuttal" evidence under the above test. The
remainder of the evidence described in the "offer of proof"
dealt with written statements of company counsel submitted
to the conciliator and to Stiles in letter form regarding
the dispute between the Company and the Union, and company
counsel's opinion of the proposed methods for resolving it.
Wholly apart from the fact that such evidence (if admissible)
could have been offered when the case was originally heard, ii
we believe , for reasons appearing elsewhere , that it had so
little, if any, probative value that its exclusion could not
be deemed prejudicial in any event.
Finally, so far as procedural matters are concerned, we
perceive no error in the Trial Examiner's refusal to permit
the physical deletion from the record of company counsel's
statement incorporating his "offer of proof." Inclusion of
such statement in the record is permissible under the Federal
rules of procedure, so that the party adversely affected by
a ruling rejecting proffered evidence may test his claim as
to the admissibility of such evidence on appeal." In any
event, we cannot perceive how the inclusion of such statement
could in any way prejudice the Respondents' case.
We turn, then, to the substantive question now before us,
whether or not in the light of the supplemental evidence here
adduced, we should continue to adhere to the findings and
order made by the Board in its December 21, 1949, Decision.
In seeking a reversal of the crucial findings, the Company
here argues that Byrnes' testimony at the reopened hearing
reveals him to be a wholly incredible witness, and that
accordingly, so much of our decision as depended upon his
testimony for the determination of subsidiary facts must
be abandoned. In specific support of this argument, the
Company has pointed particularly to the inherent improbability
of Byrnes' disclaimer of knowledge concerning widely pub-
licized collective-bargaining policies and instructions of the
ITU during the period here in question. However, we do
not find that Byrnes' testimony on this point is of such a
character as to lead the Board to discredit and disregard
the remainder of his testimony for purposes of determining
the essential facts. Indeed, we are convinced, in light of
numerous corroborative circumstances, that Byrnes was
9See Wigniore's treatise on Evidence, 3rd Edition, Section 1872
10 The quotations are from Wigmore's treatise on Evidence, 3rd Edition, Section 1873.
ilCompany counsel testified at the original hearing So far as the record shows, he had full
opportunity to seek the introduction of theevidencehe now seeks to produce but did not do so.
uSee Rule 43(c) of "Rules ofCivil Procedure for the District Courts of the United States "
NASSAU COUNTY TYPOGRAPHICAL UNION 909
telling the truth with regard to the important matters here
in issue : ( 1) The consummation of an oral ement between
the parties on July 17, 1947; (2) the integration of the terms
of such oral agreement into a written form on July 24; (3)
the wrongful failure of the Company to execute this written
contract document, and its repudiation of its oral obligations;
and (4 ) Byrnes' willingness on behalf of the Union , at all times
here material , to accept the July agreement as the governing
basis for the employer - employee relationship during the
period of its 1-year term.
Byrnes ' testimony on the first three of these points, all
of which was given at the original hearing, was credited not
only by the Trial Examiner but by all the Board Members
participating in the original Decision . We find no real basis
in the supplemental record for altering our findings on these
points.
With respect to the "abandonment " issue- - as it has been
referred to by the Court--Byrnes' relevant testimony at the
supplemental hearing is consistent with that which he gave
at the earlier hearing, and is, as noted in our initial Decision,
substantially corroborated by Stiles, the Company's principally
interested witness." Furthermore , it is also in accord with
the probabilities of the situation.14
Under all the circumstances we find no basis in the supple-
mental record for disturbing the findings made in our Decision
of December 21, 1949. Accordingly, we adhere to such
findings and affirm the Board ' s order dismissing the complaint,
as the preponderance of the evidence in the entire record,
including the supplemental proceedings , fails to establish
to our satisfaction that the Respondents adamantly insisted
upon their unlawful bargaining policy as the only means of
reaching an understanding with the Company.
13 Significantly, Stiles' testimony that, at all times here material, the Union offered to
settle the controversy by execution of the 1-year term July agreement precludes application
of the complainants' theory of litigation of this case, namely, that the Union adamantly pursued
the ITU "no-contract" policy.
i4As found in other cases involving the Respondent ITU, the ITU 1947 "no-contract" policy
was designed to achieve closed-shop conditions at times when they could not legally be
obtained with or without agreement Because the oral July agreement gave the Union the very
same closed- shop conditions in a legal manner , it is difficult to believe that the union agents
would completely abandon the July agreement and adamantly insist upon the illegal "no-
contract" policy, as was done in those other instances in which there was no valid pre-Act
closed- shop agreement.
Supplemental Intermediate Report
Under date July 7, 1948, the undersigned issued his Intermediate Report in the above-
entitled proceedings, in which he found inter alia, that under date of July 17, 1947, Respondent
Local No. 915 (AFL) and the complainant, The Daily Review Corporation, orally reached
agreement on the terms of a 1-year contract effective as of July 2, 1947, the expiration
date of the previous contract The undersigned further found, contrary to the contentions
of the Respondents, that the Respondent Local had abandoned its said oral contract on August
13, 1947, as a result of certain acts and conduct set forth in such Intermediate Report.
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
By its Decision of December 21, 1949,1 the Board agreed with the undersigned's finding
to the effect that the Respondent Local and the Company orally agreed upon a 1-year contract
under date of July 17, 1947, effective as of July 2, 1947, but disagreed with the undersigned's
finding to the effect that Respondent Local had abandoned its contract as theretofore found
by the undersigned, and affirmatively held that the conduct upon which the undersigned based
his finding of a waiver was presented as alternatives to the oral agreement and to induce
the Company to put the contract in writing.
On November 2, 1951, the United States Court of Appeals for the Second Circuit issued
an opinion 2 in the above-entitled matter wherein and whereby it remanded the case to the
Board for further procedure.
The court stated:
FRANK, Circuit Judge:--The Board, in finding that the Union did not terminate or
abandon the oral agreement of July 17, 1947, relied on an admission in the testimony
of the company's president It concluded that proposals by the Union, subsequent to
the oral agreement and inconsistent with it , were presented as alternatives to that
agreement and to induce the company to put it in writing and to perform it Whether
the order could stand, had there been no error in the hearing before the examiner,
we need not now say
The examiner erred in refusing to require the Union ' s witness Byrnes to answer
certain questions , on cross-examination , concerning the discussions at a meeting with
New York State Mediation Board It is argued that the company was not harmed by this
refusal, because the examiner and the Board accepted the testimony of the company's
witnesses about what was said at that meeting We think that argument insufficient
For all we know, Byrnes' testimony on this subject might have disclosed an abandonment
by the Union of the July agreement
Consequently, we shall not now decide this case but shall remand to the Board with
directions to reopen the hearing to permit the company to examine Byrnes concerning
the State Board meeting The examiner and the Board shall then reconsider their
findings in the light of this testimony, and the Board shall then decide whether or not
to abide by its order If it does, the company may again petition this court
On January 24, 1952, the Board issued an order remanding the case to the Regional Director
for the Second Region, New York, New York, in order that the record in the above-entitled
proceedings be reopened, and that a further hearing be held for the purpose of taking such
additional evidence as was directed in the remand of the said court of appeals of November
2, 1951, and that the said Regional Director for the Second Region arrange for such further
hearing and issue notice thereof.
On April 22, 1952, pursuant to notice, a hearing was held in New York, New York
before the undersigned Trial Examiner All parties were represented by counsel,
participated in the hearing, during which John J. Byrnes, president of Respondent Union, #915
(AFL), was examined on cross-examination pursuant to the remand of the court. During
the hearing counsel for 'the charging party--the Company--had marked for identification
carbon copies of different letters as charging party's Exhibit A-1 for identification and
charging party's Exhibit A-2 for identification Counsel for Respondent Union objected to
the introduction of said exhibits and moved that they be stricken. The undersigned sustained
the objection but directed that the exhibits each be retained in the record as "a rejected
exhibit." Respondent Union counsel then moved that said Exhibits Nos. A-1 and A-2 be
physically stricken from the record.
The undersigned reserved ruling on such motion and now rules that the motion to strike
charging party's Exhibits Nos. A-1 and A-2 be physically stricken be, and the same hereby
is, denied. Also during the hearing, counsel for the charging party, Godfrey P. Schmidt,
requested permission to take the stand as a witness following the cross-examination of
the witness Byrnes, which request was denied by the undersigned in view of the fact that
the remand order of the court applied only to the witness Byrnes. The examiner, however,
permitted Counsel Schmidt to make an offer of proof which he did. Counsel for the Respondent
Union moved' the offer of proof be stricken and ruling thereon was reserved by the under-
signed of this Supplemental Report and the undersigned now rules that the motion to strike
the offer of proof be, and it hereby is, denied.
The Supplemental Intermediate Report, pursuant to the court's remand of November 2,
1951, limited the meetings of the parties before the New York State Mediation Board. The
187 NLRB 1263
2192 F. 2d 269
G. MATHES DIVISION OF LEWIN-MATHES COMPANY 911
position and contentions of Respondent Unions and their counsel are set forth in footnotes 4,
5, and 38 of the Intermediate Report as same appears in 87 NLRB 1263 at pages 1269,
1270, and 1279, respectively.
During the original hearing and at the close thereof, counsel for the charging party moved
to strike the testimony of Byrnes because he had refused, upon advice of counsel, to answer
questions on cross-examination as to matters which occurred before the Mediation Board
meetings4 The undersigned reserved ruling for his Intermediate Report, wherein the motion
to strike was denied.
The record discloses that other than an admission that he attended meetings before the
New York State Mediation Board, Byrnes gave no testimony. 3
CONCLUSIONS: RECOMMENDATIONS
Having duly considered the testimony of Byrnes on cross-examination before the under-
signed on April 22, 1952, the undersigned is of the opinion that had such testimony been a
part of the record at the time the Intermediate Report was prepared and submitted (June 7,
1948), the findings, conclusiohs, and recommendations would have remained as then made and
submitted. The Board's finding to the effect that proposals by Respondent Unions made
subsequent to oral argument and inconsistent with it were presented as alternatives to that
agreement and to induce the Company to put it in writing and perform it , is, of course,
binding upon the undersigned.
The undersigned is of the opinion that Byrnes' testimony on cross-examination, referred
to above, will not support a finding that the Respondent Unions have abandoned the July
agreement in issue herein; and that such testimony is not inconsistent with its claim to
the contrary. It is so found.
On the foregoing and the instant record it is recommended that the Board abide by its
decision of December 21, 1949, dismissing said case.
3At all times material herein, the Board's Rules and Regulations read as follows:
Sec. 102.44 Contemptuous conduct; refusal of witness to answer questions.-Contemp-
tuous conduct at any hearing before a trial examiner or before the Board shall be
ground for exclusion from the hearing. The refusal of a witness at any such hearing to
answer any question which has been ruled to be proper shall, in the discretion of the
trial examiner, be ground for striking all testimony previously given by such witness on
related matters. (Underscoring supplied.)
G. MATHES DIVISION OF LEWIN -MATHES COMPANY and
UNITED TEXTILE WORKERS OF AMERICA, AFL and its
LOCAL 1282, Petitioner . Case No. 14 - RC 2147. June 30, 1953
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was heldbefore Harry G. Carl-
son, hearing officer. The hearing officer ' s rulings made at the
hearing are free from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the meaning
of the Act.
2. The labor organizations involved claim to represent
employees of the Employer.
3. No question affecting commerce exists concerning the
representation of employees of the Employer within the meaning
of Section 9 (c) (1) and Section 2 (6) and (7) of the Act, for the
following reasons:,
On February 5, 1952, the Employer and the Textile Workers
Union of America, CIO, the Intervenor herein, executed a
105 NLRB No. 134.