Pacific Redwood Casket Co., Inc.

National Labor Relations Board - Board Decisions

Apr 29, 1975

217 N.L.R.B. 585 (N.L.R.B. 1975)

PACIFIC REDWOOD CASKET CO.
Pacific Redwood Casket Co., Inc. and Millmen and
Industrial Carpenters Local No. 262, United Broth-
erhood of Carpenters and Joiners of America,
AFL-CIO. Case 20-CA-9258
April 29, 1975
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
On December 31, 1974, Administrative Law Judge
Maurice M. Miller issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions 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 conclu-
sions of the Administrative Law Judge and to adopt his
recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge and hereby orders that
Respondent, Pacific Redwood Casket Co., Inc., Santa
Clara, California, its officers, agents, successors, and
assigns, shall take the action set forth in the said recom-
mended Order.
DECISION
STATEMENT OF THE CASE
MAURICE M. MILLER, Administrative Law Judge: Upon a
charge filed June 5, 1974, and duly served, the General Coun-
sel of the National Labor Relations Board caused a complaint
and notice of hearing to be issued and served on Pacific
Redwood Casket Company,. Inc., designated as Respondent
within this decision. The Complaint issued July 24, 1974,
therein, Respondent was charged with unfair labor practices
affecting commerce within the meaning of Section 8(a)(1) and
(5) of the National Labor Relations Act, as amended. 61 Stat.
136, 73 Stat. 519. On July 30, 1974, Complainant Union filed
a first amended charge; that charge, however, merely con-
firmed the charge previously filed with General Counsel's
complaint as drafted, issued and served. Within Respondent's
answer, duly filed thereafter, certain factual statements in
General Counsel's complaint were conceded; Respondent,
however, denied the commission of any unfair labor practice.
Pursuant to notice, a hearing with respect to this matter
was held at San Jose, California, on August 27 before me. The
585
General Counsel, Respondent, and Complainant Union were
represented by counsel. Each party was'afforded a full oppor-
tunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence with respect to pertinent matters.
Following the hearing's close, General Counsel's representa-
tive and Respondent's counsel presented oral argument; their
arguments were duly considered.
Directly thereafter, pursuant to certain consensual agree-
ments previously reached with General Counsel's representa-
tive, Respondent's counsel, and Complainant Union's busi-
ness representative, I rendered a decision, delivered from the
bench, which the official reporter recorded, and transcribed
subsequently. That decision-delivered to the parties in writ-
ten form, thereafter, when they received their copies of the
record transcript-compassed statements with respect to my
findings of fact, conclusions, and the reasons or basis therefor
upon all material issues of fact, law, or discretion presented
on the record. On September 11, I issued a separate document
setting forth my formal Conclusions of Law and recom-
mended Order, which detailed my recommendations with
respect to the case's disposition. That document compassed,
inter alia, statements regarding the "appropriate rule, order,
sanction [or] relief' required to effectuate the policies of the
statute, with which Respondent herein would be required to
comply. See Administrative Procedure Act, 5 U.S.C. § 557(b)
and (c), National Labor Relations Act, Section 10(c); and
NLRB Rules and Regulations, Series 8, as amended, Section
102.45, in this connection. On December 10, however, the
Board determined that-by delivering my decision from the
bench, for later transcription as part of the written
record-I had not "satisfactorily" complied with the require-
ments of Section 10(c) of the statute, as amended, and Section
102.45 of the Board's Rules and Regulations with regard to
the preparation of a written decision. This matter was, there-
fore, remanded for the preparation and promulgation of a
subsequently drafted, postheanng, decision. That decision
follows.
FINDINGS OF FACT
Upon the entire testimonial record, documentary evidence
received, and my observation of the witnesses, I make the
following findings of fact:
I JURISDICTION '
Respondent raises no question herein with respect to Gen-
eral Counsel's jurisdictional claim. Upon the complaint's
relevant factual allegations-specifically, those detailed
within the second paragraph thereof-which have not been
controverted, and on which I rely, I find that Respondent
was, throughout the period with which this case is concerned,
and remains, an employer within the meaning of Section 2(2)
of the Act, engaged in commerce and business activities
which affect commerce within the meaning of Section 2(6)
and (7) of the statute. Further, with due regard for presently
applicable jurisdictional standards, I find assertion of the
Board's jurisdiction in this case warranted and necessary to
effectuate statutory objectives.
217 NLRB No. 105
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II COMPLAINANT UNION
Millmen and. Industrial Carpenters Local No. 262, United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO, designated as Complainant Union herein, is a
labor organization within the meaning of Section 2(5) of the
Act, as amended, which admits certain of Respondent's em-
ployees to membership.
III THE UNFAIR LABOR PRACTICE
A. Issue
This case presents a single, clear-cut question: Whether,
during their April 15, 1974 contract negotiations, Complain-
ant Union's spokesmen and Respondent's representatives
reached a final "meeting of the minds" regarding the terms
of a collective-bargaining contract, which Respondent's rep-
resentatives subsequently refused to confirm by signing a
document which embodies those terms. General Counsel
seeks a determination that a complete consensus-which Re-
spondent was bound, thereafter, to confirm-was reached.
Respondent's counsel, however, contends: First, that the
firm's negotiators-though they participated, fully, during
the April 15 discussions noted-lacked authority to commit
Respondent by their signature, with respect to any document
purporting to embody whatever agreement those discussions
had produced; Second, and more importantly, that whatever
ostensible consensus the negotiators for the parties may have
reached, during their April 15 discussions, was reached
merely because Respondent's representatives believed -vio-
lence might result, directed against Respondent's plant or the
homes of Respondent's management representatives, should
no complete agreement be achieved. In short, Respondent
contends that the contractual consensus which the parties
ostensibly reached, during their April 15 discussions, was a
consensus reached under duress-which did not reflect a
true, uncoerced, meeting of the minds-and that, therefore,
this Board should find there was, really, no agreement
reached on that date.
B. Facts
1. Background
a. Respondent's business
Respondent, throughout the calendar year 1974 period
with which this case is concerned, functioned-as a California
corporation, with its principal place of business located in
Santa Clara, California, where it engaged in casket manufac-
ture. The firm had been incorporated, sometime during Feb-
ruary or March 1972, 2 years previously. (Prior
thereto-throughout a period which began during 1967, at
least, and , ran until the firm 's stated incorporation date-it
had functioned as a sole-proprietorship, with Mr. Dale-Rey-
nolds as proprietor.) Following the firm's formal incorpora-
tion, Reynolds became Respondent's president and general
manager. Mr. Ronald Jaech functioned as the firm's secre-
tary-treasurer and operations manager. Mr. Robert B. John-
ston became chairman of Respondent's board of directors.
(Chairman Johnston was, concurrently, president and gen-
eral manager of San Fernando Casket Company, a Southern
California firm; he was, likewise, chairman of that firm's
board of directors. San Fernando Casket Company, through-
out the period with which we are concerned, held one hun-
dred percent of Respondent's capital stock.) Messrs. Rey-
nolds and Jaech functioned as Respondent's responsible,
on-the-spot, managerial heads; Mr. Johnston maintained his
business headquarters in Southern California, where San Fer-
nando Casket Company's plant facility was located.
b. Respondent's collective-bargaining history
Complainant Union's first collective-bargaining contract
with Respondent's noncorporate predecessor was negotiated
some , time during 1967, for a 2-year term. Successive con-
tracts were negotiated, thereafter, during 1969, 1970, and
1971; the last-designated contract, negotiated with a January
31 effective date, covered a 3-year term, with a January 31,
1974 termination date. Both of Complainant Union's most
recent contracts-covering the 1970-71 and 1971-74 peri-
ods, respectively-were negotiated and signed by Reynolds,
then a sole proprietor, with a labor relations consultant's
help.
2. Complainant union 's recent negotiations
a. Preliminary statement
We are concerned, herein, with certain 1974 negotiations,
during which Complainant Union's representatives and Re-
spondent's Santa Clara managerial heads were discussing
proposed modifications with respect to their 1971-74 con-
tract, recently terminated. With respect thereto, certain
preliminary factual determinations may be made. Inter alia,
Respondent has conceded that General Counsel's complaint
herein-more particularly paragraph 6 thereof-properly de-
fines the bargaining unit which should be considered appro-
priate for contractual purposes. The complaint defines that
bargaining unit as follows:
All production and maintenance employees, including ship-
ping and receiving employees of the Employer, at its Santa
Clara, California, location, excluding office clerical em-
ployees, salesmen, guards, and supervisors, as defined in the
Act.
I find the bargaining unit, thus defined, proper for present
purposes. Respondent further concedes, and I find,
that-throughout the period with which we are presently
concerned-the Complainant Union has represented a
majority of Respondent's employees within the specific unit
herein found proper for collective-bargaining purposes.
b. The negotiations
Complainant Union 's current business representative,
Gordon F. Franco, together with a three-member plant com-
mittee, has held a series of collective -bargaining sessions with
Respondent's representatives, looking toward their contract's
modification and renewal . These negotiating sessions began
in February 1974; before April 15, five sessions had been
concluded. (Messrs. Reynolds and Jaech, together with Mr.
E. H Gummerson, and Chet Keil, labor relations consult-
PACIFIC REDWOOD CASKET CO. 587
ants, had functioned as Respondent's representatives.) The
parties' first negotiating session was held on February 11,
1974; successive sessions were held, thereafter, on February
21, on some date early in March, March 29 and April 2,
respectively. Thereafter, a sixth session was convened on
April 15 with a Federal conciliator present; the discussions
which took place during that session will be reviewed in detail
further within this decision.
Business Representative Franco's testimony herein, pro-
vides a detailed recapitulation with regard to contractual
discussions which took place during these various bargaining
sessions , beginning with February 11 and running through
the parties' April 2 conference. However, that testimony,
within my view, requires no summarization within this deci-
sion . (Franco's proffered recollections, regarding the general
course of these negotiations, have not been significantly chal-
lenged, controverted, or qualified by Respondent' s manage-
ment representatives.) With due regard for the business repre-
sentative's testimonial recitals-plus certain stipulations-I
find determinations warranted: That Complainant Union's
negotiators were notified with respect to Respondent's incor-
poration; that several substantive agreements were reached
with respect to certain proposed contractual modifications;
that the parties, further, either "agreed" or shared a tacit
consensus whereby certain contractual provisions, with re-
spect to which no changes were being proposed, would be
"carried over" without change from their 1971-74 contract,
within any new contract which they might ultimately negoti-
ate; and that, with respect to certain other proposed contrac-
tua 1 modifications regarding which no consensus had thereto-
fore been reached, Respondent's negotiators presented a
so-called "final offer" during the parties' April 2 conference,
which Business Representative Franco promised to present
before Complainant Union's membership, for their consider-
ation.
On April 3, Franco visited Respondent's Santa Clara
facility and met there with Respondent's workers; the firm's
proposals were detailed, with respect to those matters which
had not previously been settled. Complainant Union's busi-
ness representative told Respondent's workers, inter alia,
that-should Respondent's several proposals be
rejected-they would "very possibly" find themselves re-
quired to strike, for the purpose of persuading Respondent to
proffer better contract terms. A secret ballot vote was taken;
Respondent's contractual proposals were, unanimously, re-
jected. Accordingly, Respondent's representatives were told,
shortly thereafter, that their "final offer" had been turned
down, and that Respondent's Santa Clara facility was being
struck, effective that very morning.,
(Complainant Union's declared strike did, indeed, take
place; it continued through Tuesday, April 16 , terminating
the following day, when Respondent's employees resumed
work, under circumstances which will be considered, further,
within this decision.) On or about April 13 or 14, so the
record shows, someone-possibly Business Representative
Franco, or possibly Respondent's labor relations
consultant-suggested that renewed negotiations between
Complainant Union's representatives and Respondent's
spokesmen, with a Federal conciliator's help, might be worth-
while. (I note that April 13 was a Saturday; April 14, 1974
was a Sunday. Most probably, renewed negotiations were
first suggested on some other day, probably a weekday; the
suggestion's precise date, however, need not be determined.)
Pursuant to this suggestion, Franco communicated with Fed-
eral Conciliator Griffin; Complainant Union's negotiators
and Respondent's representatives were, thereafter, requested
to renew their negotiations on Monday, April 15, within the
Mountain View, California, office maintained by Beard,
Gummerson and Keil, Respondent's labor relations consult-
ants. The parties convened, pursuant to request.
Consistently with a practice which Federal conciliators
seem to follow routinely, when confronted with situations of
this kind, Complainant Union's negotiators, Business Repre-
sentative Franco and his plant committeemen, were quar-
tered in one room, while Respondent's negotiators-spe-
cifically, Reynolds and Jaech, together with their two labor
relations consultants-remained within another. The Federal
conciliator constituted himself a conduit for communi-
cations, then, between the two negotiating groups; he
shuttled between their two rooms, and recapitulated, for
each group of negotiators, whatever suggestions or pro-
posals their opposite numbers proffered.
When Conciliator Griffin conferred initially with Com-
plainant Union's spokesmen, pursuant to this procedure,
he was provided with a capsule summary of their viewpoint
with respect to those matters which had not, previously,
been settled. However, Franco's composite testimony, in
direct and cross-examination, regarding their further con-
versation-which I credit, since it comports with logical
probability, and stands in the record without contradiction
-reads as follows:
He [Griffin] then informed us that the company now had
a demand [which] was that it was to be an open shop
[.] And I recall saying to him that we had come there in
the hopes of winding the strike down [,] and not increas-
ing or widening the gap [,] and that this . . . would
certainly upset the troops [the rank and file]. That we
were trying to conclude the negotiations and not
broaden [their] base.
The firm's new "open shop" proposal, concededly, reflected
a departure from Respondent's previous contractual propos-
als. Following a further discussion, with regard to Complain-
ant Union's several reasons for rejecting Respondent's most
recent substantive proposals, Griffin declared that he would
communicate further with Respondent's representatives.
Respondent's new "open shop" proposal, so I find, had
been developed during a three-way discussion between Chair-
man of the Board Johnston, President Reynolds, and Secre-
tary-Treasurer Jaech, shortly after Complainant Union's
strike began. Respondent 's management representatives had,
during that discussion, consensually determined-that because
of their firm's somewhat straitened financial situation and
less-than-favorable competitive position, contractual changes
calculated to permit "open shop" plant operations would
permit them to exercise managerial flexibility, which would
enable Respondent to meet competitive challenges and relieve
what might otherwise become a serious financial emergency.
The proposed contractual change, whatever its motivation
may have been had, therefore, been communicated to Con-
ciliator Griffin, for transmittal to Complainant Union's
negotiators. The Federal mediator, so the record shows, had
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
passed on Respondent's proposal; Complainant Union's
negative reaction has previously herein been noted.
With respect to what happened thereafter, Reynolds and
J-aech both testified. Their proffered recollections, regarding
the report which Conciliator Griffin conveyed to them, differ
somewhat in phraseology; for present purposes, however,
their testimonial recitals may be considered mutually cor-
roborative. Respondent's secretary-treasurer testified as fol-
lows:
Mr. Griffin told us that Mr. Franco was not at all happy
with the open shop proposal. We were told that the
committee would not be happy with this and he might
have some trouble with his men. He did not know what.
Or, at least, this was what was conveyed to us . . . Mr.
Griffin stated to Mr. Reynolds and myself, that there
might be a possibility of violence. At that time, I believe,
Mr. Reynolds . . . stated that that was fine. They could
tear the building down. Mr. Griffin then came back to
state, well, it may not be just the Company itself, but
maybe one of our homes.
Reynolds, Respondent's president, proffered a substantially
similar , but more dramatically phrased, recital. His tes-
timony follows:
Well, as I recall . . . I think he said , I hit Gordon
[Franco] with your open shop proposal, and [he] said he
didn't know if he would be able to control his troops if
he went back to them with that. I think that was how
the statement was made. I'm not quite sure about the
words, but more or less along that line . . . I said, what
do you mean, control his troops. You mean if they come
over and blow the plant up, that solves the whole prob-
lem, nobody has to go to work then . . . I was kind of
making a joke out of it, at the time, by the way. Mr.
Griffin said that, remember, this doesn't necessarily
have to confine itself to the plant.
Conciliator Griffin then suggested that Respondent' s negotia-
tors should "get together" with whomever they might have
to call in Southern California, and discuss "what [they
could] do" to "drop this [open shop] clause" and reach some
sort of peaceful settlement.
Pursuant to this suggestion, Jaech promptly telephoned
Respondent's board chairman. Johnston was told, according
to Jaech's sketchy testimony, what Conciliator Griffin had
conveyed. While a witness , herein, Johnston's recollection
was somewhat more specific. He testified that:
The message conveyed to me was that there was a possi-
bility of violence-through the mediator, the federal
mediator-if we did not come to some type of an agree-
ment. I said that under no circumstances did I want any
violence or the possibility of putting my people in any
personal jeopardy . . . Possible fire bombing of their
homes . . . I told [Mr. Jaech] to get with the federal
mediator and try to make some type of an agreement
Conciliator Griffin had, meanwhile, told Complainant
Union's negotiators that Respondent's spokesmen were tele-
phoning,Los Angeles, to discuss their "open shop" proposal
with "some [never named] individual" there. When Jaech
reported that Respondent's new "open shop" proposal would
be dropped-while requesting the federal mediator to pursue
negotiations further-the latter promptly reported Respon-
dent's reversal of position to Complainant Union's commit-
tee.
Discussions between the parties, with respect to various
substantive contractual proposals, were thereupon resumed.
During a conference which Griffin called-with Complain-
ant Union's negotiators and both of Respondent's labor
relations consultants present-they finally reached a contrac-
tual consensus. (For present purposes, the various contrac-
tual provisions which were thereby settled need not be
recapitulated. Suffice it to say that give-and-take negotiations
with respect to five designated matters regarding which no
prior agreement had been reached-pension plan improve-
ments, Complainant Union's proposed dental care plan, par-
tial retroactivity for newly negotiated wage rates, deferred
effective dates for future raises payable during the contract's
projected three year term, and defined wage increments by
which Respondent would advance newly hired workers from
their starting rates every 3 months until they reached contrac-
tual scale rates-were satisfactorily concluded.)
The negotiators-more particularly, Conciliator Griffin
and Complainant Union's committee, together with Messrs.
Gummerson and Keil, Respondent's labor relations
consultants-then reviewed their "whole package" covering
those matters with respect to which consensus had previously
been reached, together with their newly negotiated contrac-
tual provisions. Complainant Union's committeemen de-
clared their complete "agreement" with Respondent's
negotiators, and promised that the product of their discus-
sions would be recommended for ratification by Complainant
Union's membership. In this connection, Business Represen-
tative Franco testified, credibly and without contradiction,
that:
I did inform Mr. Gummerson that I would call him later
that evening to let him know the results of the meeting
and he turned to me and said, okay, we have 'a deal. And,
I said, yes, subject to ratification, the committee will
recommend, then each of the committee members did
verbally say that they would recommend it . . . I did say
to Gummerson that I would call him in respect to what
the outcome was, and that I would draft up the changes
if they were accepted and present [them] to him and to
the Company for their review to see that I had incor-
porated all the changes. And he said, all right.
Before their April 15 bargaining session concluded, the
parties-so I find-reached a further consensual "under-
standing" with respect to when Respondent's employees
would resume work. The present record reflects some slightly
variant recollections with respect to precisely how that "un-
derstanding" was reached. Business Representative Franco
recalled a query directed to Labor Relations Consultant
Gummerson, which the latter relayed to Respondent's secre-
tary-treasurer; Jaech, so Franco testified, suggested Wednes-
day, April 17 for their work resumption. However, Complain-
ant Union's committeeman, Henry Perry, recalled that
President Reynolds had set April 17, during a general
conversation-with all parties present-which followed their
PACIFIC REDWOOD CASKET CO 589
contract settlement. Whatever the circumstances, Respon-
dent's employees were, clearly, directed to resume work April
17; with this matter settled, the meeting concluded. That
night, I find, Franco telephoned Gummerson; he reported the
contract's ratification; it had, in fact, been ratified by secret
balllot. The labor relations consultant declared his satisfac-
tion, and promised to notify Respondent's president.
On April 17, pursuant to their prearrangement, Respon-
dent's workers-save for two-did, in fact, resume work. The
record warrants a determination , which I make, that their
hourly wage rates, thereafter, were higher than those which
had prevailed before their strike; these new rates, so I find,
were consistent with the parties' April 15 consensual commit-
ments.
Sometime shortly after April 16, and possibly within 2 days
thereafter, so Franco credibly testified, he prepared a draft
collective-bargaining agreement which reflected the contrac-
tual consensus reached by Respondent' s managerial represen-
tatives and Complainant Union's spokesmen, during their
April 15 discussions. (Franco's testimonial recollections,
which I credit, reveal that he did this by taking a copy of
Complainant Union's recently terminated contract with Re-
spondent herein, pasting into that document typewritten ver-
sions of various revised contractual provisions with respect to
which consensus had been reached during their six bargain-
ing sessions, and making photocopies of the document thus
modified.) Draft contract copies, thus prepared, were then
mailed to Labor Relations Consultant Gummerson and Re-
spondent's place of business. Some days later, I find, Franco
telephoned Gummerson; regarding their conversation, Com-
plainant Union's business representative testified:
I asked Mr. Gummerson if he had a chance to
review the contract I had mailed to him and he said, yes,
that he had found nothing wrong with it, that it had
truly represented all the changes that had taken place in
the negotiations.
Within a few days thereafter, Franco visted Respondent's
plant; there he conferred with President Reynolds and Re-
spondent's secretary-treasurer. They reported that Labor Re-
latnons Consultant Keil had reviewed Complainant Union's
draft contract with them. The business representative testi-
fied, credibly and without significant contradiction, that:
Mr. Reynolds stated that he had found nothing wrong
with the agreement. I then asked him to sign the agree-
ment and they informed me that they would have to send
it to Los Angeles. I asked them, what goes on? You
previously signed the-agreements in the past and how
come now you say you have to send it to Los Angeles?
And they said, Well, we are instructed to send it to Los
Angeles and this is what we will have to do. At this
point, I addressed Mr. Reynolds and Mr. Jaech, and said
to them, Well, if you can't sign it, how about initialing
it. Will you initial the changes? . . . [Mr. Reynolds]
turned to Ron [Jaech] and said, since you are sitting
down, Ron, why don't you do it? Ron indicated that he
would, and we sat there and Ron and I . . . went over
each section individually to be sure that the proper lan-
gua had been incorporated into the agreement. After
the initials were placed on all the sections by Mr. Jaech,
he said he would put it-in the mail to Los Angeles that
day and that within a couple of days, we would probably
have it back.
Complainant Union's business representative testified, credi-
bly, that during this conversation neither Reynolds nor Jaech
mentioned "who they had' to send [the draft contract] to"
down in Los Angeles. Franco's testimony, further, warrants
a determination, which I make, that they did not mention the
purpose for which the document would be forwarded there;
Respondent's secretary-treasurer merely said that some "fel-
low" in Los Angeles wanted to "see" what had been nego-
tiated.
While a witness, Respondent's secretary-treasurer purport-
edly recalled making statements that Respondent's board
chairman was a Southern Californian; that they had been "in
touch" with him, throughout the negotiations by telephone;
and that "all such documents had to be approved" by him.
This testimony, however, was not proffered when Jaech first
recapitulated the plant conversation with which we are pres-
ently concerned; it was given subsequently, when prompted
by leading questions While testifying in this connection, Ja-
ech's witness-chair demeanor further suggested some hesita-
tion; within my view, it reflected lack of certainty or convic-
tion . His testimonial recital, with respect to what Franco was
told, thus lacks persuasive thurst. Upon this note, Franco's
plant conference with Respondent's management representa-
tives terminated. During the 4 weeks which followed, so I
find, Complainant Union's business representative heard
nothing further.
On or about May 31 thereafter, Franco again visited Re-
spondent's plant. Secretary-Treasurer Jaech was asked, so I
find, whether their draft contract had been returned from Los
Angeles; he replied negatively, declaring that he would check
to see what had happened.
During his plant visit, so Complainant Union's business
representative credibly testified, he noted that Respondent's
stock of casket materials was relatively low. Respondent's
secretary-treasurer, responding to his query with respect to
this situation, declared that their recently concluded strike
had hurt Respondent financially; the firm, Jaech reported,
was then shipping finished caskets, so that it could thereby
garner sufficient funds to make further raw material pur-
chases. Franco considered this explanation believable; and he
thereupon left Respondent's plant.
Later that day, however, Complainant Union's shop stew-
ard telephoned the business representative; he reported that
Reynolds and Jaech had told Respondent's workers their
plant was being closed, and that they (the workers) should
look for other jobs. Complainant Union's business represen-
tative promptly telephoned Respondent's facility. Jaech con-
firmed Shop Steward Perry's report that the plant was being
closed, contending that he had that very day received tele-
phone "instructions" from Los Angeles, with respect thereto,
following Franco's earlier plant visit. During their conversa-
tion, Complainant Union 's business representative , so I find,
queried Respondent's secretary-treasurer, once more, regard-
ing "this [Los Angeles] character" but was told that Respon-
dent's local management representatives were "not at liberty"
to provide his name. Complainant Union's charge, herein,
was filed some 5 days later.
590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
'The, record, though not fully developed in this regard,
warrants a determination , which I make, that Respondent's
plant has, indeed, been closed. When this case was heard, no
production activity whatsoever, was being carried on there.
Respondent 's workers , seemingly , have all been terminated.
The record suggests, further, that Respondents physical
assets-save for the firm's plant facility which was
rented-may have been transferred, or that they are currently
in the process of being transferred, to some purchaser. No
determinations can be considered warranted, however, with
respect to whether or not the plant will be reopened within
the foreseeable future for casket production.
C. Conclusions
Upon this record, determinations seem clearly warranted
that, Complainant Union's negotiators and Respondent's
spokesmen, during their negotiations between February 11th
and April 15th specifically, reached a complete contractual
consensus with respect to all matters which they had dis-
cussed; that Complainant Union 's business representative,
thereafter, prepared a draft contract which correctly reflected
their consensus; that Respondent 's secretary -treasurer subse-
quently signified his concurrence therewith when he "ini-
tialed" the various textual changes, from their prior contract,
which had been compassed therein; -but that Complainant
Union's contractual' draft document, submitted for Respon-
dent's execution, has not been, thus far, signed byany prop-
erly authorized management representative . I so find.
Respondent contends, now, that Secretary-Treasurer Jaech
and Respondent's president, though they participated fully,
throughout the collective-bargaining negotiations reviewed
herein, had never been "authorized" properly to commit Re-
spondent, by their signatures, with respect to any document
which purported to reflect a contractual consensus reached
therein. This contention, within my view, merits rejection for
several reasons. First: The record, considered in totality, war-
rants a determination, which I make, that, despite Respon-
dent's change in legal status from a sole proprietorship to a
corporation, formalized during the parties' prior contract
term, the Complainant Union's negotiators were never told,
while negotiations were in progress, that Respondent's
change in legal status had, in any way, limited the presump-
tive authority which President Reynolds and Respondent's
secretary-treasurer possessed to commit their firm, with re-
spect to whatever collective-bargaining consensus those
negotiations might produce. Second: The testimonial record
shows, rather, that when the parties reached their April 15
contractual consensus, the fact that President Reynolds and
Secretary-Treasurer Jaech were not, then, qualified to con-
firm their verbal commitments was not even known to them;
they had never been advised previously regarding Board
Chairman Johnston's intention to limit their corporate au-
thority, in that regard, and were not told until some time after
their verbal "assent" with respect to a complete contractual
settlement was communicated to Complainant Union's
negotiators. President Reynolds so testified; while a witness,
he recalled that:
Well, I went through the collective- bargaining sessions
with the idea in mind that I did have authority to bind
the company to a collective-bargaining agreement. On
about the 16th or 17th of [April], contact with Mr.
Johnston, he advised me at that time to let him, he
wanted to be sure to go over this agreement before the
Company agreed to it . . . I think that was about the
time we called him to tell him that we would be going
back to work.
I conclude, therefore, that when Respondent's president and
secretary-treasurer confirmed, both directly and through
their labor relations consultants, that a contractual consensus
had been reached, the Complainant Union's negotiators were
fully entitled to consider such cumulative communications
binding with respect to Respondent's commitment. Accord-
ingly, I find that Respondent's management representatives,
when their considered verbal "assent" with respect thereto
was communicated, bound Respondent to confirm their
April 15th consensus , and to sign whatever documents set
forth its terms.
Respondent's further contention, that whatever purported
agreements the negotiators may have reached reflected a con-
sensus reached under duress which did not derive from any
true, uncoerced, meeting of their minds, likewise carries no
persuasion. First: The record provides no reliable, probative,
or substantial, support, whatsoever, for a factual determina-
tion that Complainant Union's business representative ever
proffered threats of violence. Franco's testimony, which pro-
vides the sole direct record we have with respect to his reac-
tion when confronted with Respondent's newly proffered
"open shop" contract proposal, reveals his declaration,
merely, that Respondent's proposal would "certainly upset"
his bargaining constituency. That comment, within my view,
conveys no "threat" with respect to prospective violence.
Second: The testimonial recollections of President Reynolds
and Respondent's secretary-treasurer taken at face value,
might conceivably warrant a determination that Griffin, the
Federal mediator, when he reported Franco's comment, did
mention possible violence. I note, however, that neither Rey-
nolds nor Jaech claimed, when they recapitulated Griffin's
report, that he had attributed those comments regarding pos-
sible violence directly to Complainant Union's business rep-
resentative. The mediator's reported comments, were I to
conclude, arguendo, that they were really made-consistently
with the testimony of Respondent's management representa-
tives, reflect nothing more than his (Griffin's) speculative
extrapolations, bottomed on whatever specific remarks
Franco had previously made. Should I, therefore, conclude
from their testimony that Respondent's representatives really
believed Franco had threatened possible violence, I would,
nevertheless, be constrained to conclude further that their
belief derived from their misconstruction of Griffin's report.
Third: Respondent' s management representatives - testified
that Conciliator Griffin's comments, with regard to possible
violence, were proffered in conjunction with his report of
Business Representative Franco's reaction to Respondent's
belated "open shop" proposal, merely. Nothing whatever can
be found, within the present record, calculated to support
persuasively Respondent's contention that Griffin reported
the possibility of violence shouid the parties, then and there,
fail to reach a consensus generally, with respect to contract
terms.
PACIFIC REDWOOD CASKET CO. 591
While a witness, Respondent 's board chairman did testify,
that he was told violence was possible should his negotiators
fail to conclude "some type of an agreement" generally.
Secretary=Treasurer Jaech , however , testified, summarily,
that Johnston was merely told "what ,was conveyed" when
the federal mediator reported : the record warrants a determi-
nation, which I have made, that Conciliator Griffin had con-
veyed nothing more than Complainant Union 's strongly
negative reaction to Respondent 's newly proffered "open
shop" proposal . If Respondent 's management representatives
really derived such a broadly framed "impression" from Con-
ciliator Griffin 's comments , their impression clearly rested
upon a mistake of fact with respect to what he said , for which
Complainant Union cannot reasonably be held responsible. I
conclude, therefore , that Respondent 's claim of duress , suffi-
cient to deprive the firm 's negotiators of their freedom of will
and preclude a true "meeting of minds," thereby cannot be
considered a tenable claim upon this record.
Research thus far reveals no Board cases which deal
specifically with "duress" claimed to constitute a defense, in
connection with Section 8(a)(5) charges . However, the basic
principles of contract law teach that proven "duress" de-
stroys the true freedom of consent required when parties
negotiate contracts , and can prevent the formation of binding
commitments , 25 Am. Jur. 2d , Duress and Undue Influence,
§§ 1-3, 10-14, pp. 353-372; 17 Am . Jur. 2d, Contracts, § 153,
pp. 504-505. Further, this Board has been told-within a
United States Supreme Court decision-that it may properly
consider proven union misconduct material , when reaching
a preliminary decision with respect to whether it should,
within its discretion , entertain and- proceed upon charges.
N.L.R.B. v. Indiana & Michigan Electric Company, et al 318
U.S. 9, 18-19 (1943). The Board , in short, may properly
withhold or dismiss complaints when satisfied that their un-
derlying charges are "so related to a course of violence and
destruction" as to constitute an abuse of the Board's process.
Such determinations with respect to disqualifying union
misconduct , however, cannot be lightly made; they must be
bottomed , like other Board findings , on reliable, probative,
and substantial evidence . In this connection , the Supreme
Court has commented-within Indiana & Michigan Electric
Company, supra, pp. 28-29, specifically that:
Charges that violence has been threatened or encouraged
are frequent and easy in negotiations that proceed in an
air of belligerency . Both sides regard labor relations as
tough business , and not only vital interests but passions
and sensitivities as to prestige are involved . Neither side
is lightly to be held answerable for acts where responsibil-
ity cannot be fixed. Few tasks of leadership are more
difficult than those which confront those who represent
labor . If they are gentle, they are often unheeded; and if
they are blunt, they are often held up as menacing.
[Emphasis supplied.]
Mindful of this judicial caveat, I have concluded that Respon-
dent's defensive presentation herein , particularly counsel's
contention that Respondent 's management representatives
were subjected to legal duress, lacks persuasive testimonial
support. Accordingly, I conclude, consistently with General
Counsel 's contention, that Complainant Union 's negotiators
and Respondent's spokesmen , during their April 15 negotia-
tions, did reach a viable contractual consensus which Re-
spondent's management representatives were thereafter
bound to confirm.
Thereafter, since their contractual consensus was reached,
Complainant Union has, I find, requested Respondent's man-
agement representatives to confirm their complete "agree-
ment" by- signing a -contractual draft document which
concededly compasses correctly their negotiated agreement's
terms. No such written contract has been signed; Respon-
dent's failure to sign consistently with Complainant Union's
request, I find, clearly constitutes a refusal to bargain in good
faith within the -meaning of the statute.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Respondent's course of conduct set forth in Section III,
above, since it occurred in connection with Respondent's
business operations described in General Counsel's Com-
plaint, and concededly described correctly therein, has had,
and continues to have, a close , intimate, and substantial rela-
tion to trade, traffic, and commerce among the several states;
absent correction such conduct would tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
CONCLUSIONS OF LAW
In view of my previously stated findings of fact, and upon
the entire record in this case, I make the following conclu-
sions of law:
1. Pacific Redwood Casket Co., Inc., Respondent herein,
is an employer within the meaning of Section 2(2) of the Act,
engaged in commerce and business activities which affect
commerce, within the meaning of Section 2(6) and (7) of the
Act, as amended.
2. Millmen and Industrial Carpenters Local No. 262,
United Brotherhood of Carpenters and Joiners of America,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act as amended, which admits certain of
Respondent's employees to membership.
3. All production and maintenance employees, including
shipping and receiving employees of Respondent at its Santa
Clara, California, location, excluding office 'clerical em-
ployees, salesmen, guards, and supervisors, as defined in the
Act, constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the Act,
as amended.
4 At all times material herein since February 11, 1974,
when representatives of Respondent and Complainant Union
commenced their 1974 negotiations looking toward a new
collective-bargaining agreement, Complainant Union has
represented a majority of Respondent's employees within the
bargaining unit herein found appropriate for collective-bar-
gaining purposes. By virtue of Section 9(a) of the Act, Com-
plainant Union has been, and is now, entitled to recognition
as the exclusive representative of Respondent's employees
within the unit described, for the purpose of collective bar-
gaining with respect to their rates of pay, wages, hours of
work, and other terms and conditions of their employment.
5. By failing and refusing since April 15, 1974, to execute
a written agreement with Complainant Union, embodying
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
provisions relative to wages, hours, and other terms and con-
ditions of employment, with respect to which the parties had
reached a contractual consensus , Respondent has refused,
and is refusing to bargain collectively with Complainant
union , and thereby has engaged in, and continues to engage
in, an unfair labor practice within the meaning of Section
8(a)(5) of the Act, as amended.
6. By such failure and refusal, Respondent has likewise
interfered with, restrained, and coerced, and is interfering
with, restraining, and coercing, its employees in their exercise
of rights which Section 7 of the statute guarantees, and
thereby has engaged in, and continues to engage in, an unfair
labor practice within the meaning of Section 8(a)(1) of the
Act, as amended.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act, as amended.
REMEDY
Since I have found that Respondent has committed, and
has thus far failed to remedy a specific unfair labor practice
which affects commerce, I shall recommend that it be ordered
to cease and desist therefrom, and to take certain affirmative
action, including the posting of appropriate notices, designed
to effectuate the policies of the Act, as amended.
Specifically, since I have found that Mr. Reynolds and Mr.
Jaech, functioning in Respondent's behalf, have, despite a
proper request, failed and refused to sign the draft document,
correctly reflective of the contractual consensus reached dur-
mg their April 15 bargaining session , which Complainant
Union's representative has proffered for their concurrence,
my recommendation will be that Respondent, functioning
through some properly authorized representative, should
now be required to sign, upon request, copies of the draft
contract which Complainant Union's representative has sub-
mitted for review and signature. Further, I shall recommend
that Respondent be required to comply with those contract
terms, retroactively to the effective date set forth therein, and
make its employees whole for any losses which such em-
ployees may have suffered by reason of Respondent's unlaw-
ful refusal thus far to sign the contract in question. See Huttig
Sash and Door Company, 151 NLRB 470, 475 (1965),
enfd. as modified 361 F.2d 217 (C.A. 4); Ogle Protection
Service, Inc., and James L. Ogle. 149 NLRB 545, 547-548
(1964) enfd. in part, 375 F.2d 497. Whatever backpay may be
required to make Respondent's workmen whole for any losses
which they may have suffered should bear 6-percent interest per
year, from the date or dates when such sums would have been
payable. See Isis Plumbing & Heating Co., 138 NLRB 716
(1962), in this connection.
Upon my findings of fact previously stated, the foregoing
conclusions of law, and the entire record, I hereby issue,
pursuant to Section 10(c) of the Act, as amended, the follow-
ing recommended:
I In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
ORDER'
Respondent, Pacific Redwood Casket Co., Inc., its officers,
agents successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Complainant
Union, on behalf of workers within the unit herein found
appropriate for the purposes of such collective bargaining, by
failing or refusing to sign, upon request, the draft collective-
bargaining contract which Complainant Union's representa-
tive prepared and submitted for signature in Respondent's
behalf shortly after April 15, 1974, which draft contract em-
bodied those provisions relative to wages, hours, and other
terms and conditions of employment, with respect to which
a contractual consensus had been reached on and before that
date, or by refusing to comply with that collective-bargaining
contract's terms, retroactively to its consensually agreed-
upon January 31, 1974, effective date:
(b) Interfering with, restraining, or coercing their em-
ployees, in any like or related manner, with respect to their
exercise of rights which Section 7 of the Act, as amended,
guarantees.
2. Take the following affirmative action, which will effectu-
ate the policies of the Act, as amended:
(a) Upon Complainant Union's request, sign the draft col-
lective-bargaining contract which Complainant Union's rep-
resentative submitted for Respondent's execution shortly
after April 15, 1974, and comply with that contract's terms,
retroactively to its consensually agreed-upon January 31,
1974, effective date, making Respondent's employees whole
for any losses suffered by reason of its prior failure or refusal
to sign the designated contract, in the manner set forth within
that portion of my previously promulgated decision wherein
"remedy" matters are discussed:
(b) Preserve, upon request, until compliance with the pro-
visions of this order, and make available to the Board and its
agents, for examination and copying, all payroll records, so-
cial security records, timecards, personnel records and re-
ports, and all other records relevant and necessary to reach
determinations with respect to whatever backpay amounts, or
further payments, may be due Respondent's employees pur-
suant to this order:
(c) Post at Respondent's present or former place of busi-
ness in Santa Clara, California, if Respondent is presently
conducting business operations there or resumes such opera-
tions hereafter, copies of the attached notice marked
"Appendix "Z Copies of the notice, on forms provided by
the Regional Director for Region 20, as the Board's agent,
shall be posted, immediately upon their receipt, after being
duly signed by Respondent's representative. When posted,
they shall remain posted for 60 consecutive days thereafter,
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and order, and all objections thereto shall be
deemed waived for all purposes
z In the event that the Board's 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 be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board." -
PACIFIC REDWOOD CASKET CO. - 593
in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by Respondent to ensure that these notices are not
altered, defaced, or covered by any other material;
(d) Send to each employee within the bargaining unit
herein found appropriate, whose name appeared on Respon-
dent's Santa Clara payroll on the designated January 31,
1974, effective date of the contract which Respondent has
herein been directed to sign, or whose name has since that
date appeared on Respondent's payroll, a copy of the afore-
said notice. Copies of the notice, on forms provided by the
Regional Director for Region 20, as the Board's agent, shall
be mailed, immediately upon their receipt, after being duly
signed by Respondent's representative, to the said employees,
directed to their last known addresses:
(e) File with the Regional Director for Region 20, as the
Board's agent, within 20 days from the date of this Order, a
written statement setting forth the steps which Respondent
has taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing, during which all parties were given an oppor-
tunity to present -evidence and argument, it has been deter-
mined that we violated the law by committing certain Unfair
labor practices. In order to remedy such conduct, we are
being required to post this notice. We intend to comply with
this requirement, and to abide by the following commitments:
WE WILL NOT interfere with, restrain , or coerce our
employees, through any course of conduct evidencing a
refusal to bargain, with respect to their exercise of rights
which Section 7 of the National Labor Relations Act, as
amended , guarantees.
WE WILL, upon the request of Millmen and Industrial
Carpenters Local No. 262, United Brotherhood of Car-
penters and Joiners of America, AFL-CIO, sign a writ-
ten contract which incorporates the terms of the con-
tractual consensus we reached with that labor
organization's collective-bargaining representatives on
April 15, 1974, with a designated January 31, 1974 re-
troactive effective date.
WE WILL make whole all persons who were in our em-
ploy on the written contract's designated effective date,
together with those who have been employed by us since
that date, for any losses which they may have suffered
by reason of our prior failure or refusal to execute the
written contract above mentioned.
PACIFIC REDWOOD CASKET CO, INC