Native Textiles

National Labor Relations Board - Board Decisions

Oct 24, 1979

246 N.L.R.B. 228 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Native Textiles and Communications Workers of
America, Local 1127. Case 3-CA 8442
October 24, 1979
DECISION AND ORDER
By CHAIRMAN FANNING ANI) MI;MBIRS JENKINS
ANI) TRUES)AI.L
On November 24, 1978, Administrative Law Judge
Thomas A. Ricci issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The Administrative Law Judge found that whether
or not Respondent refused to bargain with the Union
in violation of Section 8(a)(5) and (I) of the Act by
refusing to meet and bargain with Florence Fontaine
as a designated representative of the Union should be
deferred to the parties' agreed-upon arbitration pro-
cedures pursuant to the Board's decisions in Collyer
Insulated Wire, A Gulf and Western Systems Co., 192
NLRB 837 (1971), and Roy Robinson, Inc. d/b/a Roy
Robinson Chevrolet, 228 NLRB 828 (1977). We dis-
agree.
Florence Fontaine served as the Union's "area rep-
resentative" in Respondent's dry finishing depart-
ment, where she was employed from the fall of 1976
through March 13, 1978, when she was discharged,
allegedly for altering production records to increase
her pay. There is evidence that an area representative
was responsible for appointing stewards, supervising
the handling of grievances in her area through the
first two steps, and serving as one of the four mem-
bers of the Union's committee at the third step of the
grievance procedure. An exchange of correspondence
between Respondent and the Union, described below,
followed Fontaine's discharge.
On March 15, the Union notified Respondent that
Fontaine would be on its committee for a third-step
grievance conference scheduled for March 20. Addi-
tionally, the Union advised Respondent that Fon-
taine would remain as area representative pending
the final outcome of the grievance concerning her dis-
charge, and Respondent should continue to contact
Fontaine to set up second-step grievance reviews. Re-
spondent agreed to permit Fontaine to attend the
March 20 grievance conference pending its final de-
termination of the matter. Subsquently, on March 22,
Respondent advised the Union that Fontaine was no
longer an employee, and, therefore, according to arti-
cle 25.01' of the parties' collective-bargaining agree-
ment, Fontaine could not act as an area representa-
tive or carry out the duties of an area representative.
On March 27, Union President H. D. Rhodes
wrote Respondent that the Union's executive board
had appointed Fontaine "special assistant" to the
union president and that this assignment was in addi-
tion to her being an area representative. Rhodes fur-
ther advised Respondent that he had assigned Fon-
taine to handle "complaints and grievances" in the
finishing department and he expected Respondent, in
accordance with articles 1, 23,2 and 25 of the parties'
agreement, to allow Fontaine reasonable access to the
premises, and to "deal with her on grievance matters
and other appropriate Union-management relations
within the scope of her assigned jurisdiction." (Em-
phasis supplied.) On April 6, Respondent replied that
it would "decline to deal with Ms. Fontaine in the
capacity outlined in [the Union's] letter" on the
grounds that Fontaine could not continue as area rep-
resentative since she was no longer an employee and
the assignment given Fontaine was an attempt to cir-
cumvent the parties' agreement.
On April 10, the Union requested that a third-step
grievance meeting, scheduled for April 17, be held at
a location off Respondent's premises if Respondent
would refuse to allow Fontaine access to the premises
as a member of the Union's grievance committee. In
the event Respondent would not meet with a union
committee including Fontaine, the Union advised it
would meet with Respondent "under protest." Re-
spondent replied on April 17 that it would not agree
to the inclusion of Fontaine on the Union's grievance
committee for meetings on or off Respondent's prem-
ises.
Since Respondent has refused to meet with Fon-
taine, the Union has processed grievances in her area
without an area representative, but Fontaine has con-
Art. 25 in the parties' collective-bargaining agreement contains the fol-
lowing provisions:
25.01 Employees of the Company constituting the Executive Board
shall include a Vice-President Textiles and three (3) textile section area
representatives. Stewards, not to exceed one (1) in any department for
any working shift, shall he appointed by the area representatives and
notice of such appointment shall be provided to the Company.
25.02 Properly accredited officials of the Union shall have access, at
all reasonable times and upon notice, to the premises of the Company
provided subject access does not interfere with the normal flow of busi-
ness.
25.03 The Company agrees to pay for earnings lost as a result of
negotiations for those employees who are members of the Union Bar-
gaining Committee not to exceed six (6).
Art. I contains a recognition clause and a description of the bargaining
unit. Art. 23 contains the grievance procedure and is set forth in the Admin-
istrative .aw Judge's Decision attached hereto.
246 NLRB No. 38
228
NATIVE TEXTILES
tinued to write the grievance appeals for that area. At
the time of the hearing herein, a grievance concerning
Fontaine's discharge was before an aribtrator and the
parties were selecting a date for an arbitration hear-
ing on another grievance concerning Respondent's
"refusal to allow Fontaine access to Company prem-
ises and its refusal to meet with Fontaine for griev-
ance reviews."
The only specified duty of an area representative in
the parties' agreement is found in article 25.01 which
provides in part that stewards shall be appointed by
area representatives. However, we are not concerned
here with appointments of stewards. In view of the
parties' correspondence, we are concerned here with
the Union's designation of Fontaine as its representa-
tive for processing grievances in the finishing depart-
ment and Respondent's refusal to meet and bargain
with Fontaine for that purpose. This is aptly revealed
by Respondent's letter to the Union on May 4 which
stated in part:
We do not however, agree to meet with Ms.
Fontaine, either on or off Company premises/lbr
the adjudication of Native Textile employees'
grievances. [Emphasis supplied.]
Significantly, article 25 does not specify the repre-
sentatives which the Union must use in processing
grievances under article 23. Additionally, article 23
provides that the first-step grievance conference will
include not more than "two (2) Union representa-
tives" and the third-step grievance conference will in-
clude not more than "four representatives from each
side," but again it does not specify the representatives
the Union must select nor does it require that any of
said representatives must be employees of Respon-
dent.
The right of employees to designate and to be rep-
resented by representatives of their own choosing is a
basic statutory policy set forth in Section 7 of the Act
and a fundamental right guaranteed employees by
Section 7 of the Act. When it is alleged, as here, that
an employer is refusing to recognize a designated rep-
resentative of its employees, especially for a matter of
such obvious importance to employees as processing
grievances, it is not simply a matter of contract inter-
pretation but rather an alleged interference with a
basic statutory right of employees that this Board is
entrusted with protecting. Accordingly, it is not a
matter to be deferred to arbitration, but rather one
which requires the Board to invoke its jurisdiction
and exercise its expertise.3 We find, therefore, that the
Administrative Law Judge erred in recommending
the issues here be deferred to arbitration and the com-
AMF Incorporated-Union Machinen Division. 219 NRB 903. 912
(1975); cf. Sr Joseph's Hospital(Our Lady of Proidence tIni), 233 NI.RB 53
(1977).
plaint be dismissed. We turn now to the merits of the
issues.
While Respondent may arguably contend that arti-
cle 25.01, if enforceable,4 sanctions its refusal to rec-
ognize an area representative who was no longer an
employee, articles 23 and 25 do not amount to a clear
and unmistakable waiver of the Union's right to des-
ignate whomever it desires as its representatives for
processing grievances. The contract does not specify
which representatives the Union had to use in pro-
cessing grievances. In practice, the Union's represent-
ative had included not only employees designated as
area representatives but also the Union's president
and secretary, neither of whom was employed by Re-
spondent. We conclude that the Union's past practice
of utilizing employee area representatives in the pro-
cessing provided no defense for Respondent's refusal
to recognize Fontaine, as past practice conferred on
Respondent no "prescriptive" right to require that
practice to continue. Harley Davidson Motor Co., Inc.,
AMF, 214 NLRB 433, 439 (1974).
We likewise find no merit in Respondent's conten-
tion that the alleged circumstances of Fontaine's ter-
mination justified its refusal to recognize and meet
with Fontaine in processing grievances. There is no
persuasive evidence that Fontaine's presence would
have resulted in such "ill will, usually personal, or
conflict of interest, as to make good faith bargaining
impractical."' To the contrary, Respondent agreed to
Fontaine's presence at the March 20 grievance con-
ference following her termination and offered no evi-
dence that her presence caused any interference with
that conference. Furthermore, in its correspondence
with the Union, Respondent never stated that it was
refusing to meet with Fontaine because her presence
would make good-faith bargaining impractical, but
rather Respondent repeatedly based its refusal simply
on the ground that Fontaine was no longer an em-
ployee. No evidence of possible disruption has been
offered. 6
For the foregoing reasons, we find Respondent's
defenses without merit and that its refusal on and
after March 22, 1978, to meet and bargain with Flor-
ence Fontaine as the Union's designated representa-
tive for processing grievances was violative of Section
8(a)(5) and (1) of the Act.
' Inasmuch as we find that art. 25.01 does not amount to a clear and
unmistakable waiver of the Union's nght to designate its representatives for
processing grievances. we deem it unnecessary to decide whether or not such
a clause would be repugnant to the purposes of the Act and. therefore.
unenforceable (Contrary to the Administrative Law Judge. we do not find
that the General (Counsel's contention on this matter "broadens the scope of
the complaint allegation so as to change the entire nature of the case," but
rather we view it as an alternative contention which is unnecessary to decide
for the reasons stated herein.
'See General Electric Compuarun N . R.B.. 412 F2d 512. 517 (2d Cir.
1969)
' KDEt'N Broadcastrng Compan, a wholly owned subsidian f ,'Vorrh A meri-
can Broadcasting ('onpam,. 225 NLRB 25. 35 (1976)
229
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CON(CLUSIONS OF LAW
1. Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By refusing on or about March 22, 1978, and
continuing to date, to meet and bargain with Flor-
ence Fontaine as the Union's designated representa-
tive for processing grievances, Respondent has vio-
lated Section 8(a)(5) and (1) of the Act.
4. The appropriate bargaining unit is:
All full-time and regular part-time production
and maintenance employees, including truck
drivers, employed by the Respondent at its Glen
Falls plant, excluding officers, office and plant
clerical employees, sales and time study employ-
ees, watchmen, professional employees, execu-
tives, foremen and all other supervisory employ-
ees as defined in the Act.
5. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in and
is engaging in certain unfair labor practices, we shall
order it to cease and desist therefrom and to take
certain affirmative action designed to effectuate the
policies of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent, Na-
tive Textiles, Glen Falls, New York, its officers,
agents, successors, and assigns, shall:
i. Cease and desist from:
(a) Refusing to bargain with Communications
Workers of America, Local 1127, by refusing to meet
and bargain with the Union's designated representa-
tives, including Florence Fontaine, for processing
grievances.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Meet and bargain, upon request of the above-
named Union, with the Union's designated represen-
tatives, including Florence Fontaine, for processing
grievances.
(b) Post at its Glen Falls, New York, premises cop-
ies of the attached notice marked "Appendix." 7 Cop-
ies of said notice, on forms provided by the Regional
Director for Region 3, after being duly signed by a
representative of Respondent, shall be posted by Re-
spondent immediately upon receipt thereof, and shall
be maintained by Respondent for 60 days thereafter
in conspicuous places, including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by
any other material.
I In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD)
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
with Communications Workers of America, Lo-
cal 1127, by refusing to meet and bargain with
the Union's designated representatives, including
Florence Fontaine, fbr processing grievances in
the appropriate collective-bargaining unit set
forth below. The appropriate unit is:
All full-time and regular part-time production
and maintenance employees, including truck
drivers, employed by the Employer at its Glen
Falls plant, excluding officers, office and plant
clerical employees, sales and time study em-
ployees, watchmen, professional employees,
executives, foremen and all other supervisory
employees as defined in the Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them in Sec-
tion 7 of the Act.
WE WILL meet and bargain, upon request,
with the Union's designated representatives, in-
cluding Florence Fontaine, for processing griev-
ances.
NATIVE TEXTILES
DECISION
SlATEMEN-I OF IHE CASE
THOMAS A. Ricci, Administrative Law Judge: A hearing
in this proceeding was held on October 4, 1978, in Albany,
New York, on complaint of the General Counsel against
Native Textiles, herein called Respondent or the Company.
230
NATIVE TEXrlLES
The complaint issued on May 25, 1978, on a charge filed on
April 11. 1978, by Communications Workers of America.
Local 1127. herein called the Union. The sole issue pre-
sented is whether Respondent violated Section 8(a)(5) of
the National Labor Relations Act, as amended, because it
refused to deal with one particular individual-Florence
Fontaine--as representative of the Union. Briefs were filed
by the General Counsel and Respondent.
Upon the entire record and from my observation of the
witnesses, I make the following:
FINDIN(iS ()F FA( I
1. TilE: RtSINUSS OF REISPONI)tNT
Native Textiles, a New York State corporation, in its
plant at Glens Falls, New York, is engaged in the manufac-
ture, sale, and distribution of textile products. During the
past year at this location it manufactured, sold, and distrib-
uted products valued in excess of $50,000, of which prod-
ucts valued in excess of $50,000 were shipped from that
location directly to out-of-state locations. I find that Re-
spondent is engaged in commerce within the meaning of the
Act.
Foreman within forty-eight (48) hours after the confer-
ence has been held.
Step 2--If the grievance is unresolved after Step I, it
will be reduced to writing and, within five (5) days
after receiving the Foreman's Step I reply, shall be
presented to the Industrial Relations Manager. The
written grievance shall include the Article of the Con-
tract allegedly violated. A conference will be held
within five (5) days of the presentation of the grievance
to the Industrial Relations Manager within five (5)
days after the Step 2 conference.
Step 3--lf the grievance is unresolved after Step 2,
the Union may, within seven (7) days after the Step 2
answer, request a conference with the Plant Manager.
Such conference is to be held within five (5) days. Such
conference will include no more than for representa-
tives for each side. The grievance will be answered by
the Plant Manager within five 5) days after the Step 3
conference.
Step 4 If the grievance is unresolved after Step 3.
the matter will be referred to a representative of the
International Union. If within sixty (60) days following
the Plant Manager's disposition the matter is unre-
solved the grievance may be submitted for arbitration.
* *
II. THE LABOR ORGANIZATION INV()IVlVED
I find that Communications Workers of America, Local
1127, is a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED) UNFAIR LABOR PRA(CI(I
A. Motion To Defer
All the relevant facts are simple and undisputed: indeed.
the record consists almost entirely of agreed-upon docu-
ments received as exhibits and stipulated statements of
what happened. For some years, under successive collec-
tive-bargaining agreements, the Union has represented Re-
spondent's employees who work in three departments (also
called areas):-knitting, dyeing and finishing, and finishing
and cutting. The last contract, negotiated by the parties
during fall 1976 and still in effect in spring 1978, contains
the following provisions:
23. GRIEVANCE PROCEDURE AND
ARBITRATION
23.01-Should any difference or grievance arise be-
tween the COMPANY and the UNION or any em-
ployee in regard to wages, hours, working conditions.
discipline or other matters in connection with enforce-
ment of the AGREEMENT or its interpretation, any
one or all of the following procedures shall be resorted
to by the parties as a means of adjusting the dispute:
Step I Within thirty (30) days following the al-
leged violation of this AGREEMENT the Union will
request a conference with the appropriate Foreman.
Such conference is to be held within twenty-four (24)
hours and will include not more than two (2) Union
representatives. The grievance will be answered by the
*
23.02
(b) The arbitrator's findings, decisions. and
awards shall be final, binding, and conclusive on
both of the parties hereto; however, the arbitrator
shall have no power to add to, subtract from, alter,
or modify the terms of this agreement.
(d) Employees will not suffer loss of pay for rea-
sonable time spent in processing of grievances as
outlined herein.
. *
25.01 Employees of the Company constituting the
Executive Board shall include a Vice-President--Tex-
tiles and three (3) textile section area representatives.
Stewards, not to exceed one () in any department for
any working shift, shall be appointed by the area rep-
resentatives and notice of such appointment shall be
provided to the Company.
During February 1978 and thereafter Florence Fontaine,
an employee in the finishing and cutting department, was
the regularly selected area representative in her area, and as
such she carried on the duties normally attached to her
office appointed stewards, looked after the drafting of
grievances, handled them in the first two steps inside the
plant, and sat in as one of several union representatives in
the third stage. She was discharged on March 13 on the
ground, as asserted by the Company, that she had falsely
altered certain production documents. Although no longer
an employee Fontaine continued to contact the employees
in her department and to assist them in preparing and filing
grievances. Two days after her discharge the Union wrote
to the Company. saying that she would remain area repre-
231
DECISIONS OF NATIONAl. LABOR RELATIONS BOARD
sentative and continue to sit in on the grievance meetings
with the Company at all steps. On March 22 the Company
responded, saying that as Fontaine was not an employee
she could not, as provided by the contract, meet with the
Employer on that basis, and that Respondent would refuse
to deal with her. Upon receipt of this letter Fontaine was
appointed "special assistant" to the president of the Local.
and again on March 27 the Union informed the Company
of this new step and demanded that she be permitted to act
on its behalf in the processing of grievances as she had done
before, for the finishing and cleaning department. Again
Respondent refused to deal with Fontaine in that capacity,
calling the demarche "an attempt to circumvent the provi-
sion of our labor agreement." There followed other corre-
spondence between the parties in like vein, each side hold-
ing firm to its respective position set out above.
While all this was going on a grievance was filed over her
discharge: it went to arbitration under the contract, and
that matter was still pending at the time of the hearing in
this case.
B. The Issue Presented
The complaint is ambiguously phrased, but it does speak
of Respondent's refusal to meet with Fontaine, chosen by
the Union as one of its agents, being a violation of Section
8(a)(5) refusal to bargain as required by the statute. I
think that, and only that, is all this case is about. Respon-
dent advances two distinct defense contentions. One is that
it had a right to refuse to permit Fontaine to act as area
representative and union spokesman in grievances because
the contract as provided. The Union having asked for para-
graph 25 in the collective-bargaining agreement making
employee status a requisite for eligibility to area represent-
ative status, the Employer having agreed to that procedure
for amicable and peaceful implementation of the contract -
in fact having even agreed to pay the employees who might
be chosen to that union role, how could the Union com-
plain-the argument goes-if the Employer asks it to live
up to its own contract?' The second position is that this
entire proceeding before the Board should be deferred to
agreed-upon contract arbitration procedures, pursuant to
the principle established by the Board in Collyer Insulation
Wire, 192 NLRB 837 (1971).
I think that Respondent is correct on both grounds. I
shall therefore recommend dismissal of the complaint on
the basis of Collyer, supra. See also, for supporting material,
William E. Arnold Co. v. Carpenters District Council of
Jacksonville and Vicinity, 417 U.S. 12 (1974).
C. Analysis
That the "dispute" which "arose" "between the Com-
pany and the Union," turns upon "interpretation" of their
contract could not be clearer. The words in quotation are
all from the contract. The contract speaks of area represen-
tatives as being employees. Fontaine was not an employee
I Respondent's manager of industrial relations testified without contradic-
tion that the entire concept of area representatives participating in the griev-
ance procedure was the Union's, and that the language now appearing in
par. 25 of the contract "was the Union's language."
after her discharge. The functions the Union wanted her to
carry out even after changing her title to special assist-
ant -remained exactly those of the finishing department
area representative.2 When the contract says "employees of
the Company . . . shall [be] . . . area area representatives,"
does it mean one who is not an employee may not hold that
position? If it does mean that the representative must be an
employee. is a discharged employee whose resultant griev-
ance pursuant to the contract has not yet been resolved
with finality deemed an "employee" for purposes of para-
graph 25 until such time as the Company succeeds in win-
ning the arbitration?' The arguing that continued in the
successive letters that were exchanged later between the
parties phrases the dispute differently, but it never really
changed.
Deferral here is dictated by the Board's recent decision in
Roy Robinson, Inc. d/b/a Roy Robinson Chevrolet, 228
NLRB 828 (1977), where the Board deferred to arbitration
after the employer had discontinued its body shop opera-
tion without first discussing its decision with the established
union. Had there been no contract arrangement in exis-
tence the act would have been a prima facie unfair labor
practice. The dispute between the parties there became
whether the contract could be read as permitting such uni-
lateral action. There, as here, the contract expressly pro-
vided that all matters involving "interpretation" of the con-
tract would go to binding arbitration. And there, as here,
the dispute in fact involved such interpretation. The fact
that the conduct under examination, in the absence of any
collective-bargaining agreement, could conceivably consti-
tute an unfair labor practice was deemed no reason for de-
parting from the Collyer rule. Repeatedly the Board and the
courts have held the fact that an act "arguably, may contra-
vene both the collective agreement and our statute," does
not require that the Board proceed with its case and ignore
the parties' arrangement to settle their dispute by arbitra-
tion.
In his written opposition to the deferral motion, and in
his post-hearing brief, the General Counsel broadens the
scope of the complaint allegation so as to change the entire
nature of the case. Now he argued that Respondent's of-
fense was to have insisted or agreed?-that only employ-
ees could represent the Union on the executive board, that
is, be area representative like Fontaine. That an employer
may not, under the statute, limit the union's or its employ-
ees' right to choose a spokesman without regard to the em-
ployer's ideas is a principle of law that hardly needs cita-
tion. But this is not what the complaint says. And it is not
what the Union complained of in its charge. In fact, it is
hardly what the Union would claim, what with paragraph
2The Union's first demand, the letter dated March 15, could not be
clearer: "Please be advised that Ms. F. Fontaine remains as Area Represent-
ative." And after her title was changed, the Union's March 27 letter said that
she would be "handling complaints and grievances in the Finishing Depart-
ment." These are precisely the contract arrangement duties of the employee
who is chosen as area representative.
Respondent won vindication of the discharge in two trinbunals. On April
20, 1978, the Board's Regional Director refused to issue a complaint on the
Union's charge that Fontaine's dismissal was a violation of Sec. 8(aX3); the
Union's appeal from this decision to the General Counsel in Washington was
denied. (Case 3 CA 8403.) On April 21 Fountaine filed a complaint with the
New York State Division of Human Rights, claiming that she had been
discharged because she is a lady. Respondent won that one too.
232
NATIVE TEXTILES
25 of the agreement being an arrangement it gave birth to
and successfully sold to Respondent.
I view this belated argument by the General Counsel as
but an attempt to eliminate from consideration the matter
of contract interpretation, and thereby avoid the entire
Collyer principle. In fact. in his belated insistence that the
contract in itself proves the unfair labor practice, the Gen-
eral Counsel traps himself into the very area where the
Board has held that arbitration is appropriate. He says that
the Union did not waive its right to choose area representa-
tives who are not employees "in clear and unmistakable
language," and cites cases totally unrelated to this one. But
when the Board speaks of situations where "interpretation"
of the contract is at issue and therefore lead to proper arbi-
tration, all it is recognizing is that the contract is not written
in clear and unmistakable language. This is the very heart
of Coliver. The real meaning of the General Counsel's posi-
tion now is that the contract clause requiring area represen-
tatives to be employees is an unfair labor practice in itself.
quite like a closed-shop provision might be. I suppose, un-
der the Board's accepted procedures, the General Counsel
could issue such a complaint even on the basis of the very
limited charge as filed. But this is not what was disputed or
litigated at the hearing. Certainl\ it is not what Respondent
was at any time given to understand it would have to de-
tend against. If I have misconceived the true issue. or if I
am right on the record as made and the General Counsel
wishes to expand the complaint to add the broader unfair
labor practice allegation, he may move to reopen the record
and to resume the hearing so that the added question may
be fairly litigated. In that event the General Counsel, I ex-
pect, would logically request that paragraph 25, or other
contract references to area representative employees. be
struck from the written agreement of the parties. A respon-
dent charged with more wrongdoing than he is told of at
hearing is entitled to full opportunity to defend against the
broader allegation. In this case, of course, the Union too
would want to know in advance that the aim of the case is
to remove from its contract that grievance procedure it so
painstakingly won from Respondent.
[Recommended Order for dismissal omitted from publi-
cation.]
233