Robinson Freight Lines

National Labor Relations Board - Board Decisions

May 8, 1957

117 N.L.R.B. 1483 (N.L.R.B. 1957)

ROBINSON FREIGHT LINES 1483
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
4. The following employees of the Employer constitute a unit
appropriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act : All employees of the Employer's
Napa, California, retail store, excluding the manager, the assistant
manager, guards, and supervisors as defined in the Act. This unit
conforms to the stipulation of the parties and apparently to the con-
tract unit.
[Text of Direction of Election omitted from publication.]
Jack C. Robinson , doing business as Robinson Freight Lines and
Chauffeurs, Teamsters, Warehousemen & Helpers Local Union
No. 621, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL-CIO
Jack C. Robinson, doing business as Robinson Freight Lines and
A. J. Buckner, John Brooks, Perry Coward and Ed Carnes.
Cases Nos. 10-CA.-0236 and 10-CA-$336. May 8,1957
SUPPLEMENTAL DECISION
On January 27, February 1, and March 9, 1955, Chauffeurs, Team-
sters, Warehousemen & Helpers Local Union No. 621, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, AFL-CIO, filed original and amended charges in the
above-entitled proceeding, alleging that Jack C. Robinson, doing
business as Robinson Freight Lines, in order to discourage union
membership, and in violation of Section 8 (a) (3) and (1) of the
Act, had discriminated in the hire and tenure, terms, and conditions
of employment on and after December 13, 1954, with respect to John
Brooks, A. J. Buckner, Tom Carpenter, Perry Coward, Ed Carnes,
Eugene Evans, James Frazier, Boyd McNabb, Jr., Sam Smith, and
Claude Haynes.'
On May 23, 1955, a complaint based on the charge as amended was
issued. On June 2 and 3, 1955, individual charges alleging the same
violations were filed by A. J. Buckner, John Brooks, Perry Coward,
and Ed Carnes. A consolidated complaint based on these charges was
issued on June 8, 1955, alleging that the Respondent had engaged
'The original charge, filed January 27, 1957, listed 11 discriminatees, including Robert
Keaton and J. R. Reynolds. The first amended charge, filed February 1, 1955, listed 12
discriminatees , adding Claude Haynes to the first list. The second amended charge, filed
March 9, 1955 , listed 10 discrimmatees , removing Robert Keaton and J. R. Reynolds from
the list.
117 NLRB No. 195.
1484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
-in unfair labor practices in violation of Sections 8 (a) (1) and (3) of
,the Act. A hearing was held before Trial Examiner Louis Plost on
June 21 and 22 and July 7, 1955; and on July 25 , 1955, he issued the
'Intermediate Report, in which he found inter alia , that the Respond-
ent had engaged in and was engaging in certain unfair labor practices
and in which he recommended that:the Respondent take certain action
as therein set forth with respect to seven named employees. The
Respondent filed exceptions to the Intermediate Report. On Novem-
-ber 16, 1955 ,2 the Board adopted the Trial Examiner's findings and
recommendations and ordered that the Respondent ( a) offer reinstate-
ment and back pay to John Brooks, James Frazier , Edward B. Carnes,
Perry Coward, and Eugene Evans; and (b) pay back pay to Sam
Smith and Tom Carpenter.
Subsequently , the Board filed a petition with the United States
Court of Appeals for the Fifth Circuit seeking enforcement of its
Order. The Respondent then moved the court for leave to adduce
additional evidence " in regard to an agreement dated April 8, 1955,
between the Respondent and Teamsters Local Union No. 621, and
others" on the ground that a copy of the contract was not available
during the hearing before the Trial Examiner and did not come into
the Respondent 's possession until August 1956. By order dated Oc-
tober 1, 1956 , the court granted the Respondent 's motion for leave to
adduce additional evidence and remanded the case to the National
Labor Relations Board for that purpose.
Pursuant to the order of the court , on November 21, 1956, the Board
issued an Order directing that the record in this proceeding be re-
opened and that a further hearing be held consistent with the court's
order. On January 10, 1957, a hearing was held before Trial Ex-
aminer Lloyd Buchanan and on January 31 , 1957, he issued a Supple-
mental Intermediate Report wherein he made certain findings of fact,
conclusions of law and a recommendation as set forth in the copy of
the Intermediate Report attached hereto. Thereafter , the Respondent
filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Murdock, Rodgers, and
Bean].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed . The Board has considered the Supple-
mental Intermediate Report, the exceptions and brief , the evidence
presented at the reopened hearing, and the entire record in the case,
and hereby adopts the findings, conclusions , and recommendations of
2114 NLRB 1093.
ROBINSON FREIGHT LINES 1485
the Trial Examiner'to the extent they are consistent with the modifica-
tions and additions herein.
The record shows that on April 8, 1955, a memorandum agreelent
was drawn up between the Respondent and five Teamsters local unions,
including Local 621, the Charging Union. In addition to agreement
among the parties with respect to other undertakings not involved
herein, the memorandum agreement provided for (a) the reinstate-
ment without back pay for 6 of the discriminatees listed in the charges
and no reinstatement for 6 others; s (b) the Respondent to withdraw a
court case pending against Local 621 in the Chancery Court of Knox
County, Tennessee; and (c) Local 621 to withdraw its charges filed
with the National Labor Relations Board. The agreement bore the
signatures of Jack C. Robinson for the Respondent and of Don Vestal,
representative of another Teamsters local, who the Trial Examiner
found did not sign on behalf of Local 621.
The Respondent generally attempted to perform its obligations
under the agreement and on June 1, 1955, Local 621 requested with-
drawal of its charge in Case No. 10-CA-2236. However, on June 2,
1955, the Regional Director refused this request, stating :
My reasons for refusing to approve your request are, that it does
not appear that the alleged unfair labor practices involved have
been substantially remedied, and since two of the alleged dis-
criminatees have on this day filed charges individually, we may
reasonably expect that others who have not been reinstated will
do likewise.
Assuming, but not determining that the April 8, 1955, agreement
was a valid contract, the question remains whether the Board would
approve-such an agreement in settlement of the unfair labor practice
charges filed herein, and would permit the withdrawal or dismissal of
the charges. It is well established that the Board's power to prevent
unfair labor practices is exclusive, and that its function is to be per-
formed in the public interest and not in vindication of private rights.'
Thus, the Board alone is vested with lawful discretion to determine
whether a proceeding, when once instituted, may be abandoned.
Such discretion to dismiss charges will be exercised only when, the
unfair labor practices are substantially remedied and when, in the
Board's considered judgment, such dismissal would effectuate the
policies of the Act. In the instant case, we would not exercise our
3 Those to be offered reinstatement included ' Sam Smith , Arlie Buckner , Perry Coward,
J R Reynolds , Bob Keaton , and Tom Carpentet , those not to be offered iemstatement
included Ed Carnes, Boyd McNabb, Jr., Gene Evans, Jobn Brooks, Claude llaynes, and
Air Frazier
T\\elve are mentioned in the agaeement because the charges ongmally involved 12 but
wet e later amended to list only 10 disci ununatees
+ V L -R It v Federal Lttginceaanq Co . 153 F 2d 233 2&1 (C A 6) Sec also
ti L 1? B v Pi etlynian, 117 F 2d 78(3, 792 (C A. 6).
1486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discretion to dismiss the charges and complaint herein. These
charges alleged that the Respondent discriminated against 10 to 12
employees in violation of the Act. However, the alleged settlement
agreement of April 8, 1955, attempted to settle all the unfair labor
practices by having the Respondent offer reinstatement without back
pay to only 6 of the employees and by denying reinstatement and back
pay to the remaining 6. Not only did the April 8, 1955, agreement fail
substantially to remedy all the unfair labor practices alleged in the
charges, but it failed to do so with respect to the unfair labor practice
violations found herein by the Trial Examiner and by the Board in
its original Decision and Order. To remedy the violations found,
the Trial Examiner recommended and the Board ordered the
Respondent to offer reinstatement and back pay to 5 employees and
back pay to 2 others.5 But, under the April 8, 1955, agreement, the
Respondent was to offer reinstatement to only 1 of the 5 employees
who were found by the Board to be entitled to reinstatment; and,
under the agreement, the Respondent was not obligated to pay back
pay to any of the 7, all of whom were found by the Board to be
entitled to back pay. It is thus apparent that the agreement of April
8, 1955, was not commensurate with, and did not substantially remedy,
the unfair labor practice violations alleged in the charges and coin-
plaint and found by the Trial Examiner and Board. In view of these
circumstances, and upon the entire record before us, we would not
have approved the settlement agreement and would not have exer-
cised our discretion to dismiss the charges and complaint had the
agreement been before us at the time of our original Decision and
Order herein because it would not have effectuated the policies of the
Act; and further we now reject the agreement for the same reason.a
Accordingly, we agree with the Trial Examiner herein and adhere
to and affirm our original Decision and Order finding that the
Respondent violated Section 8 (a) (3) and 8 (a) (1) of the Act, and
B The Board ordered reinstatement and back pay for John Brooks , James Frazier, Edward
B Carnes, Perry Coward , and Eugene Evans ; and back pay for only Sam Smith and Tom
Carpenter , who had returned to the Respondent 's employ.
6 With respect to the timeliness of the Respondent's motion before the court to adduce
additional evidence , the record shows that, despite the Respondent 's assertion that a
copy of the April 8, 1955 , agieement was unavailable until August 1956 , more than a year
later, Jack C- Robinson was present at the discussion and negotiation of the April 8 agree-
ment and actually signed it as president of the Respondent . Further , with respect to
the Respondent 's statement in its brief to the court that, in the original record, "the agree-
ment was referred to by petitioner 's witness , Air Hubert L Payne , however , the Exam-
iner refused to allow this evidence to go in by reason of hearsay," we agree with the Trial
Examiner that the witness was not referring to the agreement but rather to a conver-
sation which may have led to the agreement and that such conversation was, as char-
acterized by the Respondent 's own attorney , "pure hearsay ." To the extent that refer-
ence might have been made to the April 8, 1955, agreement at the original hearing,
Respondent might well have had Mr Jack C. Robinson, who helped negotiate and signed the
agreement , testify concerning it. Finally , it is to be noted that, although the agreement
was signed on April 8 , 1955, it was not until June 1, 1955; just before the charges of
unfair labor practices were filed with the Board by the individual discriminafees, that
the request to withdraw Local 621's charges were made.
ROBINSON FREIGHT LINES 1487
directing the Respondent to offer reinstatement and back pay to John
Brooks, James Frazier, Edward B. Carnes, Perry Coward, and
Eugene Evans; and to offer back pay to Sam Smith and Tom
Carpenter.
SUPPLEMENTAL INTERMEDIATE REPORT
On November 21, 1956, the Board issued its Order in the above -entitled pro-
ceeding, directing that the record be reopened and a further hearing held for the
purpose of receiving additional evidence consistent with the court 's decision herein
on October 1, -1956; and that a Supplemental Intermediate Report issue containing
findings of fact , conclusions of law , and recommendations.
A consolidated complaint was issued herein on June 8, 1955 . A hearing was held
before Trial Examiner Plost on June 21 and 22 , and July 7, 1955, and , on July 25,
1955 , he issued his Intermediate Report , in which inter alia he recommended that the
Company take certain action as therein set forth with respect to seven named em-
ployees. The Board , on November 16, 1955 ,1 adopted these recommendations
and-ordered the Company to make whole for loss of pay employees John Brooks,
James Frazier, Edward B . Carnes, Perry Coward , Eugene Evans , Sam Smith, and
Tom Carpenter , and to offer reinstatement to the first five of these. The Board
having undertaken to obtain enforcement of its Order in the United States Court
of Appeals for the Fifth Circuit , that court by order dated October 1 , 1956, de-
clared as follows : "The Respondent 's motion for leave to adduce additional evi-
dence is granted , and this case is remanded to the National Labor Relations Board
for that purpose."
The Company 's motion in the circuit court was for leave to adduce additional
evidence "in regard to an agreement dated April 8, 1955 , between the Respondent
and Teamsters Local Union No . 621, and others."
A hearing was held before me at Knoxville, Tennessee , on January 10, 1957.
Pursuant to leave granted to all parties , briefs were thereafter filed by the General
Counsel , the Union , and the Company.
Upon the entire record of this hearing, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT ( WITH REASONS THEREFOR)
I have not, except when it first issued, read the earlier Intermediate Report in
this proceeding , not because of lack of interest in it or of regard for my colleague's
work; but because such regard might influence the credibility findings herein.
Whatever the earlier testimony and demeanor of the witnesses , findings herein
are based on the testimony before me and demeanor as I observed it.
Various elements in the record of this hearing on remand may at sometime be
considered as having a bearing on some aspect of the case . For example , that one
employee was "satisfied" when he was told why the Company would not reemploy
him may be considered on compliance . (If he so stated "shortly after the meeting"
of April 8, there is no explanation for the failure to mention it at the first hearing.)
On the other hand, other testimony , as for instance that the Company considered
some of the men undesirable , refers to a point which the Board has already deter-
mined . But such testimony of either type, received on the issue whether there was
an agreement on April 8 or to determine general credibility of witnesses , cannot
enlarge the scope of the remand order.
While the court may not have intended to preclude itself from further considera-
tion of the issue of timeliness and the reason offered by the Company for not sub-
mitting the contract for consideration earlier, neither the General Counsel nor
the Union raised the issue before me although it is one of the two elements neces-
sarily raised in the application to the circuit court for leave to adduce additional
evidence . But a finding which obliquely reflects on this issue is made infra in con-
nection with the finding whether an agreement was in fact entered into on
April 8, 1955.
Since the court had before it only a brief and general statement concerning an
agreement which allegedly affected the issues in the case and any recommendation
or direction for remedy, its order presumably indicates only that the agreement may
be material to the issues. As I stated on the record , the court, on receipt of the
motion for leave to adduce additional evidence, in effect ruled that a prima facie
1 114 NLRB 1093
1488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
case of timeliness and materiality had been made out; it did not bar testimony.
and argument , or findings , conclusions , and recommendations concerning the'
alleged agreement of April 8, 1955. In this first step in the remand, materiality
must be weighed - as always in making findings , conclusions , and recommendations.
It seemed to'me' that under the cases the agreement in question is not material
to the issues in this case. But it is the subject matter of this remand, and as such
will be considered by the court. Therefore and as I stated at the hearing, while the
document should have been rejected and thus presented for review in the rejected
exhibit file, I have, because of its importance now and the court's interest in it, over-
ruled the objection and received the' document in evidence. This, of course does
not affect its materiality. Thus materiality or the weight to be given to the agree-
ment remains to be determined. In view of the terms of the remand, oral as well
as this written 'testimony concerning attempts to dispose of the issues without
formal decision by the Board was generally received without prior ruling on its'
materiality or bearing on the issues. Thus, while I indicated at the hearing and
shall -now rule on its materiality, that testimony is available in the record for
further consideration.
Before us now is a document entitled "Memorandum Agreement" dated April 8,
1955, and reciting as parties "Robinson Freight Line, Inc.,2 ... as the Employer,"
and "Teamsters Local Union No. 327, Truck Drivers and Helpers Local Union'
No. 515, Teamsters Local Union No. 667,• Teamsters Local Union No. 621, and
Teamsters Local Union 549, all affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F. of L., . .
as the Unions." To the extent here perhaps material, the Employer agrees therein
to reinstate, with seniority but without back pay, Sam Smith, Arlie Buckner, Perry
Coward, J. R. Reynolds, Bob Keaton, and Tom Carpenter; and to withdraw a case
then pending against Local 621 in the Chancery Court of Knox County, Tennessee.'
Local 621 agrees therein to "withdraw all proceedings it has filed before the Na-
tional Labor Relations Board against the Employer to which it is a party"; and
"that insofar as it is concerned as the representative of former employees Ed'
Carnes, Boyd McNabb, Jr., Gene Evans, John Brooks, Claude Haynes, and a
Mr. Frazier, the Employer is under no obligation to reemploy these persons, nor
under any other obligation to these former employees." The document was signed
on behalf of "Robinson Freight Line, Inc." by "Jack C. Robinson, President," and,
on behalf of Teamsters Local Union No. 327 by Don Vestal.
On June 1, Payne, business representative of Local 621, telegraphed to the Board's
Regional Director that he "would like to withdraw the unfair labor practice charge
against Robertson [sic] Freight Lines in Knoxville, Tennessee Case Number I1-CA-
2236." By letter dated June 2, the Regional Director advised Payne that his tele-
graphic request to withdraw the charge was thereby denied since it did not appear'
that the alleged unfair labor practices had been substantially remedied and since
two of the alleged discriminatees had that day filed charges individually, with the
expectation that others who had not been reinstated by the Company would do like-
wise; and he declared his expectation to proceed with the hearing, which was sched-
uled for June 21.
Although not within the scope of the remand, the possibility was realized that
the court may be interested, when the matter is brought to its attention, in any
question of attempt by discriminatees to withdraw from the case. Therefore, brief
as the supplemental hearing was, testimony was received that before the hearing in
June 1955 Carpenter telephoned Robinson and told him that he did not want to
appear at the Board hearing, had no reason to appear, and had no complaint, and
that he later told Robinson that he had telephoned the Board's attorney and told '
him that he had no interest in the case and did not want to appear; also that dis-
criminatee Smith told Robinson shortly after the June 1955 hearing that he had
notified the Board in Atlanta that he had no further interest in the proceeding and'
no complaint against the Company. (Smith's disclaimer, if it had any effect, could'
await compliance proceedings ; it would not affect the finding of violation and the
remedy to be applied generally. As for Carpenter's disclaimer, no reason appears
for,considering it at this late date as additional and newly discovered evidence.)
If I am correct in my impression that the court has not decided the question of
materiality , we must note that an attempt by agreement alone to renounce or'
waive rights or remedy which are to be determined in a pending Board proceeding
after filing of a charge and issuance of a complaint, is ineffectual. The Board acts
"in the public interest and not in vindication of private rights" and it is "vested
with lawful discretion to determine whether a proceeding, when once instituted,,
a No issue has been raised concerning reference to the Company herein under that name.
' ROBINSON FREIGHT LINES ' 1489
may be abandoned." 3 In the absence of Board approval of'the purported settlerilent,,
the evidence is irrelevant., This was recognized by witnesses for both sides, who
testified that those at the meeting on April 8 were told and realized that Board
approval was necessary. The Company is a member of an association of motor
carrier employers, and the attorney and executive secretary of that association, who
prepared the document in his office in Nashville, where the meeting was held on
April 8, testified: "All parties had recognized that the Board might not go along
with the Agreement." He realized that whether or not individuals filed charges
the Board might find violation on the basis of the charge filed by Local 621. Any
setoff or equity which the Company may have (this is not to suggest that such
exists) against the individual discriminatees need not be determined at this time, when
we are concerned with statutory rights and remedy, even if they may be relevant in
compliance proceedings
Should the remand not be determined on the issue of law thus presented, consid-
eration must be given to an issue of fact which developed at the hearing held
pursuant to the remand order: Whether the argreement cited by the Company ever
went into effect or was adopted by the parties named therein.
Reynolds, business representative of Local 621, testified that various employees
of the Company knew that the meeting was to be held on April 8; he attended and
participated in the discussion as the agreement was drafted, but did not approve it:
"it was to be typed up and then be approved by the people involved." Similar denial
of actual approval or agreement at the meeting was made by Vestal. On the other
hand, Buck, the attorney, and Robinson testified that the terms were agreed upon
after a lengthy discussion; that it was to be typed in the form in which Buck (he was
apparently mistaken in his recollection that a representative of Local 549 was present)
had finally written the various clauses in longhand; that Vestal had been authorized
to sign on behalf of Local 621; that Robinson would return later to execute the
typewritten copy; and that Vestal, who lived in Nashville, would be available to
sign for the locals. Buck testified further that he mailed copies of the agreement
to Vestal and that, although he signed only in the space left for Local 327, the latter
told him over the telephone that "his signature represented the signatures of all of
the persons."
The record indicates that the Company then attempted generally to perform its
obligations under the agreement. As we have seen, Local 621 attempted to perform
its obligation under the agreement by requesting withdrawal of its charge herein.
To credit the testimony that the various representatives reached no agreement
at all while in Buck's office is to find that the subsequent action taken by both sides
was without reason, that those who attended left the attorney's office without any
recognizable conclusion (even of disagreement), and that although various clauses
were drafted and redrafted, nothing was ultimately available as an agreement and
nothing was thereafter done about obtaining agreement although copies were signed
by Robinson and by Vestal, the latter at least on behalf of another local. As we
recall that Vestal signed the agreement although there is no evidence of any further
meeting or discussion, we need not credit such testimony as Reynolds': "(Buck)
probably had all the things that each side had agreed to, tried to reach an agree-
ment; but it wasn't no agreed agreement." A finding could reasonably be made that,
to the extent that agreement was arrived at, it did not call for approval by the
respective locals, and that Vestal, despite his denial, was authorized to sign for
Local 621. But we have already noted that the witnesses agreed that Board approval
was recognized as a necessary condition. This condition was never met, and I
therefore find that no binding agreement was in fact entered into on April 8.
Consideration of these facts may help us to understand why the agreement was not
signed on behalf of Local 621; specifically, why Vestal signed for Local 327 only.
(I do not credit the testimony, nor is it a fact, that his signature "represented" the
signatures of all.) It will explain the failure of the Company and the attorney who
acted for it at the April 8 meeting to question further the omission of a signature
for Local 621: the necessary approval was not obtained from the Board.
The condition that the Board approve withdrawal of the charges and the failure
of that condition also cast light on the statements made in the motion to the circuit
court for leave to adduce additional evidence. It is stated in the Respondent
Company's brief and argument in support of that motion that "The respondent at
the time of the hearing was not acquainted with the full contents of the agreement
as same was negotiated between Mr. A. O. Buck, Nashville, Tennessee, for respondent
3 N L R B v Federal Engineering Co , 153 F 2d 233, 234 (C A 6) See also N L. R R
y. Prettyman, 117 F 2d 786, 792 (C A. 6) ; N L R B. v Cotten, 105 F 2d 179, 192 (C. A.
6) ; N. L R B. v Hekman Fnrnittire Co, 207 F. 2d 561, 562 (C A. 6)
4 23 7 84-57-vol 117-95 -
1490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and, Mr . Don Vestal for the Union." Had there been an agreement , the Company
would have been acquainted with and cited its contents generally at least, especially
since it was allegedly negotiated not only between Buck and Vestal4 but in the
presence of and with discussion by Robinson himself. If, as stated in the motion
to the circuit court, "a copy of the contract was not available during the hearing
before the Examiner (of this Board), or after same was transferred-to the Board,
and did not come into respondent's possession until August 1956," the reasonable
deduction and finding are that Robinson did not on April 8, 1955, or at any time
prior to August 1956, consider that an agreement had been reached in April 1955.
Such an agreement, if reached in April, would have been too vivid at the time of
the hearing in June and July 1955 to be overlooked even if a copy were not avail-
able. Of course, that the document was ignored is again understandable from
Robinson 's awareness that Board approval was a necessary condition, and the fact
that the Board did not approve.
To return to the question of law, if withdrawal of the charge filed by the Union
could not be effected without Board approval, a fortiori the rights of employees
covered by the complaint which was issued by the Regional Director could not be
disposed of by agreement between the Company and Local 621. Yet the attempt
was made by the conditional agreement of April 8 to perform the functions of the
Board in determining reinstatement of some employees, albeit without back pay,
and denial of reemployment to others. (Robinson testified that the parties to the
document agreed, among other things, that some were undesirable employees; yet
the Board did not so find, nor has it been indicated here that the issue was even
presented to it.)
In short, the cases hold that the Board's right to proceed herein cannot be limited
by the agreement of April 8 taken at face value with respect to either withdrawal of
charges by Local 621 or agreement that any employees be offered less than full
reemployment with back pay. Should it be deemed necessary 5 to go beyond that
statement of law, the agreement was subject to a condition which was not met. (While
the condition referred to withdrawal of the charge, it would be no less applicable, in
law, to the decision not to reemploy.) Should it be deemed necessary to explore yet
further, the finding is in order that, whatever the authorization to Vestal, he withheld
execution on behalf of Local 621, and the agreement was never executed by or on
behalf of Local 621, which had filed the first charge; and it is clear from the Company's
witnesses, who testified concerning Vestal's authority to sign for various parties to
the agreement, that all contemplated an actual signing. Nowhere has any witness
suggested that the agreement was entered into by mere assent of the parties in Buck's
office and prior to any signing. The very requirement of signature by Vestal and
his failure to sign for locals other than his own takes this case out of the rule con-
cerning acceptance by oral agreement and subsequent act. Here was no oversight:
Vestal signed , but not for Local 621.
A fourth ground remains to be pointed out. Regardless of any question of with-
drawal by or settlement with the Union, there has been no attempt to indicate how
withdrawal of its charge could affect the right to proceed under the other charge,
which was filed by various individuals, as noted in the caption of the proceedings,
and which alone would support the complaint. There is no question of withdrawal
or attempted withdrawal of the latter charge, or of private determination of the
rights of employees thereunder.
4 Should the court consider the timeliness of the motion, it will note that this state-
ment in the supporting brief submitted to it is contradicted by Robinson's testimony. Nor
is a party, represented by an attorney, to be heard to claim ignorance of the terms of a
document prepared by that attorney and in his possession when the party is elsewhere
repiesented by another attorney Further, there is nothing to show that a copy could
not have been had for the asking
8 Alternate and additional, if unnecessary, grounds for relying on the record earlier ad-
duced are here cited since the first and last of these are suggested in the motion for leave
to adduce additional evidence , while the two intermediately stated grounds are to be
found only in the testimony now received Elaboration of the issues at the supplemental
hearing and analysis of the iecord may present the legal grounds more fully so that deci-
sion of the questions raised by the motion may be made as a matter of law
Had the April 8 document been executed by all of the parties therein listed and without
condition, we should perforce rely on the propositions of law alone In view of the re-
mand, however, it has seemed advisable to receive and consider the conflicting testimony
concerning the extent of agreement and its execution It is not clear how questions con-
cerning the execution and unconditional existence of the agreement, even if decided in
the Company's favor, can make the lattei's position stronger than if it would be had, the
agreement and Local 621's responsibility foi it not been questioned.
RADIO BROADCAST TECHNICIAN'S LOCAL NO. 1225 1491
Finally, I would note that, apparently as additional explanation to show the suf-
ficiency of the reasons cited for the Company's failure to adduce at the original
hearing the evidence concerning the April 8 document, the brief and argument sub-
mitted to the court in support of the motion for leave to adduce additional evidence
includes the following statement:
On page 50 of the transcript, the agreement was referred to by petitioner's
witness, Mr. Hubert L. Payne, however, the Examiner refused to allow this
evidence to go in by reason of hearsay.
It appears from the page cited that the witness was referring to a conversation
which may have led to the agreement in question. Certainly "the agreement was
(not) referred to" there. The attorney for the Company himself endorsed the
Trial Examiner's characterization of the testimony as hearsay, saying.
Yes, pure hearsay, your Honor.
The question, if it be further considered, of timeliness or reason for failure to make
a timely offer should not be colored (I do not suggest or believe that this was inten-
tional) by any implication of interference by the Trial Examiner who conducted the
first hearing.
The facts which can now be found are:
1. Jack C. Robinson, doing business as Robinson Freight Lines (sub nomine
Robinson Freight Line, Inc.), and Local 621 and others prepared an agreement on
April 8, 1955, pursuant to which they undertook to settle certain disputes and to
determine as therein set forth the rights of John Brooks, James Frazier, Edward B.
Carnes, Perry Coward, Eugene Evans, Sam Smith, and Tom Carpenter, among others.
2. The agreement was conditioned on Board approval.
3. The agreement was not signed by or on behalf of Local 621.
4. The Board has not approved the agreement.
5. Neither the Regional Director, the Trial Examiner who was designated to and
did conduct the hearing, nor the Board has consented ito withdrawal of either of the
charges herein.
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following conclusions of law:
1. Evidence of the agreement dated April 8, 1955, was not timely offered.
2. The agreement is not material to the issues in this case, and does not affect the
Board's findings, conclusions, and order of November 16, 1955.
I recommend adherence to the findings, conclusions, and order of November 16,
1955, without modification on account of the testimony received in the supple-
mental hearing on remand.
Radio Broadcast Technician 's Local No. 1225, International
Brotherhood of Electrical Workers, AFL-CIO and Rollins
Broadcasting , Inc. Case No. 35-CC-36. May 9, 1957
DECISION AND ORDER
On December 13, 1956, Trial Examiner James A. Shaw issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in certain unfair labor practices and recom-
mending that it be required to cease and desist therefrom and to take
certain affirmative action, asset forth in the copy of the Intermediate
Report attached hereto. Thereafter, the Respondent filed exceptions
to the Intermediate Report and a supporting brief.
The Board' has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
'Pursuant to Section 3 (b) of the Act, the Board has delegated its power to consider
this case to a 3-member panel [Members Murdock, Rodgers, and Bean]
117 NLRB No. 137.