Service Workers, Local 427, Teamsters

National Labor Relations Board - Board Decisions

May 6, 1976

223 N.L.R.B. 1342 (N.L.R.B. 1976)

1342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Miscellaneous Service Workers, Drivers and Helpers,
Local 427, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca and Edward D . Sultan Co., Ltd. Case 37-CB-
270
May 6, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On December 2, 1975, Administrative Law Judge
E. Don Wilson issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel and
Charging Party filed cross-exceptions and supporting
briefs. Respondent also filed a motion to reject the
Administrative Law Judge's Decision and to consid-
er the case de novo, to which the Charging Party filed
opposition.
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 briefs I
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge to the
extent consistent herewith.
We agree with the Administrative Law Judge that
Respondent Union violated Section 8(b)(3) of the
Act I by its refusal to bargain, including its refusal to
sign a contract agreed to and entered into by Sultan
and the Union, its causing a strike with an object of
forcing Sultan to rescind its lawful contract with the
Union as to the production and maintenance em-
ployees, and its refusal to bargain with respect to the
clerical unit.
The Administrative Law Judge credited in toto the
testimony of Edward Yee, business agent of the
Union, who testified that he was told by Anthony
Rutledge, secretary-treasurer and business manager
of the Union, that he had authority to negotiate with
1 We deny Respondent 's motion to reject the Administrative Law Judge's
Decision and to consider the case de novo.
2 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge . It is the Board 's established policy not to over-
rule an Administrative Law Judge 's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd . 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
3 The Administrative Law Judge found that Respondent Union violated
Sec. 8 (aX5), (3). and ( I). It is clear that he intended to find that Respondent
violated Sec . 8(b)(3). We correct this inadvertent error.
Sultan and to reach a contract. We agree with the
Administrative Law Judge that Sultan and Yee did
reach agreement on a contract for production and
assembly employees,a and that Respondent Union
was obligated to sign the agreed-upon contract. Its
failure to do so therefore violates Section 8(b)(3).5
The Administrative Law Judge found that Re-
spondent violated Section 8(b)(1)(B) by attempting
to cause the Employer to dispense with the services
of Michael McCarthy as its bargaining representa-
tive. We presume the Administrative Law Judge re-
lied on the testimony of Arthur Rutledge, head of the
Teamsters Joint Council. Rutledge testified that he
called Edward Sultan, Jr., the Employer's president,
and during the course of the conversation stated that
"Mike McCarthy doesn't know anything and why
didn't he use the Employers Council." There is no
probative evidence that Respondent threatened to or
actually refused to bargain because McCarthy repre-
sented the Employer. Under these circumstances, we
do not adopt the Administrative Law Judge's finding
that Respondent violated Section 8(b)(1)(B).
The General Counsel and Respondent have ex-
cepted to the Administrative Law Judge's proposed
remedy and recommended Order requiring Respon-
dent Union to "Make economically whole the inno-
cent victims of the Union's bad faith bargaining by
paying them wages they may have lost plus 6 percent
interest." We find merit in this exception, for the
remedy proposed by the Administrative Law Judge
represents a departure from our normal remedy in
similar refusal-to-bargain cases 6 We shall therefore
order that Respondent execute the agreement signed
by the Employer and by Yee for the Union on Au-
gust 8, 1974, which shall be retroactive to August 7,
1974, as provided in the agreement.
CONCLUSIONS OF LAW
1. Edward D. Sultan Co., Ltd., is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
3. The appropriate units are:
4 The Administrative Law Judge found , and we agree, that on July 18.
1974. Anthony Rutledge agreed to accept management 's proposal that the
existing overall unit be split into two units-a production and assembly unit
and a clerical unit. However , even if, as Respondent contends, there was no
such agreement on July 18. the subsequent unequivocal acceptance of the
two-unit division by Yee binds Respondent.
5 The Administrative Law Judge found that the Union violated the Act
when it allegedly directed Yee to stall rather than bargain. We reject this
finding, since according to Yee's credited testimony he never received such
an instruction , and in any event, even if such instruction were given, it was
not carried out.
6 See American Basketball Association Players' Association (American
Basketball Association ), 215 NLRB No. 65 (1974).
223 NLRB No. 202
SERVICE WORKERS , LOCAL 427, TEAMSTERS 1343
(a) All manufacturing and assembling em-
ployees employed by the Employer at its Hono-
lulu, Hawaii, facility; excluding all other em-
ployees, office clerical employees, guards, and
supervisors as defined in the Act.
(b) All office clerical employees employed by
the Employer at its Honolulu, Hawaii, facility;
excluding all other employees, manufacturing
and assembling employees, guards, and supervi-
sors as defined in the Act.
4. At all times material herein, Respondent has
been and remains the exclusive representative for all
employees in the aforesaid units for the purpose of
collective bargaining within the meaning of Section
9(a) of the Act.
5. By repudiating, on or about August 13, 1974,
the contract agreed to by the parties on or about
August 8, 1974, by causing a strike of the employees
in the unit described above in paragraph 3(a) with
an object of forcing the Employer to rescind the
agreement reached on August 8, 1974, and by refus-
ing since October 15, 1974, to bargain with the Em-
ployer concerning the employees in the unit de-
scribed above in paragraph 3(b) unless the Employer
agreed to rescind the agreement reached on August
8, 1974, Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Sec-
tion 8(b)(3) of the Act.
6. The aforesaid unfair labor practices are unfair
labor practices within the meaning of Section 2(6)
and (7) of the Act.
(d) Engaging in any like or related conduct in de-
rogation of its statutory duty to bargain.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Upon request, sign the August 8, 1974, con-
tract covering the manufacturing and assembly em-
ployees of Sultan which Sultan and the Union en-
tered into, effective August 7, 1974.
(b) Upon request, bargain collectively with Sultan
about a contract covering its clerical employee unit.
(c) Post at its offices and meeting halls copies of
the attached notice marked "Appendix."' Copies of
said notice, on forms to be provided by the Regional
Director for Region 20, after being duly signed by an
authorized representative of Respondent, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to members are customarily
posted. Reasonable steps shall be taken by it to en-
sure that said notices are not altered, defaced, or cov-
ered by any other material.
(d) Promptly mail to the Regional Director for
Region 20 signed copies of the notice for posting by
Edward D. Sultan Co., Ltd., if willing, at its Honolu-
lu, Hawaii, location where notices to employees are
customarily posted.
(e) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Miscellaneous Service Workers, Drivers and Helpers,
Local 427, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
Honolulu, Hawaii, its officers, agents, and represen-
tatives, shall:
1. Cease and desist from:
(a) Repudiating the collective-bargaining contract
of August 8, 1975, with respect to the manufacturing
and assembly employees of Edward D. Sultan Co.,
Ltd., at its Honolulu, Hawaii, facility.
(b) Causing a strike of the employees in the above-
described unit with an object of forcing Sultan to
rescind the aforementioned agreement.
(c) Refusing to bargain with Sultan concerning the
clerical employees unless Sultan agrees to rescind the
above-described collective-bargaining contract with
respect to the manufacturing and assembly employ-
ees.
7 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 MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT repudiate the collective-bargain-
ing contract of August 8, 1974, with respect to
employees known as manufacturing and assem-
bly employees at Edward D. Sultan Co., Ltd.'s
Honolulu, Hawaii, facility, excluding all other
employees.
WE WILL NOT cause a strike of the employees
in the above-described unit with an object of
causing Sultan to rescind its lawful contract with
us as to production and maintenance employees,
and we will not cause a failure to bargain in the
clerical unit.
1344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT refuse , upon request, to bargain
with Sultan concerning the employees in the
unit of clerical employees unless Sultan agrees to
rescind the contract it has with us with respect
to Sultan's manufacturing and assembly em-
ployees.
WE WILL NOT engage in any like or related
conduct in derogation of our statutory duty to
bargain.
WE WILL, upon request, sign the August 8,
1974, contract covering the manufacturing and
assembly employees of Sultan which Sultan and
we entered into, effective August 7, 1974.
WE WILL, upon request, bargain collectively
with Sultan about a contract covering its clerical
employees.
MISCELLANEOUS SERVICE WORKERS , DRIVERS
AND HELPERS , LOCAL 427, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND HELPERS OF AMERICA
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
At all times material herein, Sultan, having its principal
office and place of business in Honolulu, Hawaii, has been
engaged in the manufacture of jewelry. During the past
calendar year, in the course and conduct of its business
operations, Sultan sold and shipped goods valued in excess
of $50,000 directly to customers located outside the State
of Hawaii. During the same calendar year, in the course
and conduct of its business operations, Sultan purchased
and received at its Honolulu facility goods valued in excess
of $50,000 directly from outside the State of Hawaii. At all
times material it has been an employer engaged in com-
merce within the meaning of the Act.
II. THE LABOR ORGANIZATION
At all times material the Union has been a labor organi-
zation within the meaning of the Act.
DECISION
STATEMENT OF THE CASE
E. DON WILSON, Administrative Law Judge: Based upon
a charge filed by Edward D. Sultan Co., Ltd., herein Sultan
or Employer, on December 18, 1974, the General Counsel
of the National Labor Relations Board , herein the Board,
issued a complaint and notice of hearing on April 25, 1975,
thereafter incidentally amended , alleging that Miscella-
neous Service Workers, Drivers and Helpers, Local 427,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, herein referred to
as the Union, violated the Act by various unfair labor prac-
tices affecting commerce within the meaning of the Act,
particularly in repudiating a collective-bargaining agree-
ment arrived at between the parties on or about August 7,
1974. Since on or about September 24, 1974, to date, the
Union has caused a strike of the manufacturing and assem-
bly employees employed by the Employer, with an object
of forcing Sultan to rescind the agreement it had arrived at
with the Union with respect to the employees in the unit,
including all manufacturing and assembly employees em-
ployed by the Employer, excluding all other employees.
Beginning on or about October 15, 1974, Respondent alleg-
edly refused to bargain with Sultan concerning all of
Sultan 's clerical employees in Honolulu , Hawaii , excluding
all other employees.
All parties were given full opportunity to participate, to
introduce relevant evidence , to examine and cross-examine
witnesses, to argue orally, and to file briefs. Briefs, which
have been carefully considered, were filed on behalf of all
parties.
Upon the entire record of the case and from my observa-
tion of the witnesses and their demeanor , I make the fol-
lowing:
III. THE UNFAIR LABOR PRACTICES
A. The Issues
At all times material were Anthony Rutledge, secretary-
treasurer and business manager, and Edward Yee, business
agent of the Union, agents of the Union; and were various
and other allegations of the complaint admitted or denied
and has counsel for the General Counsel proved those
which have been denied with a preponderance of the evi-
dence establishing their substance with the probative and
substantive evidence?
B. The Facts
As admitted by the Union in its brief, negotiations for a
new bargaining contract began sometime in March 1974.
So, too, it is admitted that in early June 1974 a preliminary
session was held with Tom Hayes and Michael McCarthy
on the one hand representing the Employer, and Tony
Rutledge and Edward Yee representing the Union. Assist-
ing the Union was a negotiating committee of employees
Arnetta Ford, Dorothy Yap, and Judith Rodriguez. Com-
pany proposals iricluded a 5-year contract term and two
separate bargaining units, one for production and assem-
bly and the other for clericals . These proposals were reject-
ed by the Union at the beginning of negotiations. Finally,
about July 18, 1974, Tony Rutledge, who was an officer of
the Union, announced that he was leaving for the Main-
land and that Ed Yee would continue negotiations in his
stead. Yee was not a novice as a business representative.
He had worked for the Joint Council of Teamsters since
sometime in 1972 and theretofore had majored in industri-
al relations at the University of Hawaii. From that univer-
sity he received an award as an outstanding student. Thus,
the man whom Tony Rutledge announced he would leave
in his stead for negotiations was a man of training, skill,
SERVICE WORKERS , LOCAL 427, TEAMSTERS
and ability, and was most well trained for his job. When
hired by the Teamsters, one of his most important duties
was to assist in contract negotiations. He did not differ
from other business agents of the Teamsters in this regard,
but he conducted union business, signed petitions for elec-
tions and consent election agreements, signed unfair labor
practice charges, and engaged with employers, including
this Employer, with respect to contractual matters.[
Yee was an outstandingly honest witness. Prior to his
dealings with Sultan, he had signed a bargaining agreement
with Chemetron. He signed petitions for representation
elections and unfair labor practice charges, usually with
the advice of Mr. Tony Rutledge. I was most impressed by
his demeanor. I credit his testimony in toto.
It was in 1970 that the Union was certified as the bar-
gaining agent for a unit of all employees of the Employer,
excluding confidential employees, etc. Consequent to this
certification, the Union and Sultan entered into a contract
covering the employees in the production and assembly
department, and also the office clerical department. It was
not unique for Yee to assist in bargaining negotiations.
Other business agents, as well, signed petitions, consent
election agreements, and unfair labor practice charges, and
engaged in correspondence with employers.
Based upon the record, I find Yee was an outstandingly
qualified business agent for the Union and was so regarded
by the Union. He impressed me most as an honest witness.
About March 1974, Yee met with the employees in two
groups: (1) production and assembly and (2) clerical em-
ployees, so that he could determine their desires for a new
contract. The employees in the respective groups elected
one from each department as a committee memeber to as-
sist the union business agent in negotiations which would
be coming up. About April 11, Yee sent a letter to Sultan,
notifying Sultan of the Union's desire to reopen negotia-
tions and attached a variety of proposals in behalf of the
Union for a new agreement. On May 24, Sultan's president
acknowledged receipt of the notice and stated that the Em-
ployer looked forward to negotiating with the Union and
added that the Employer reserved the right to make such
additions and modifications as it wished.
Prior to entering into a production and assembly con-
tract by the parties on August 8, 1974,2 the Employer was
represented by its attorney, Mike McCarthy, and its vice
president, Thomas Hayes. The Union was represented by
Tony Rutledge until he left, Edward Yee, and an employee
committee consisting of three employees, two each from
the production and assembly department, and one from
the clerical department.
About the middle of June, the parties met and Sultan
announced that it was its desire that the bargaining unit be
split so that there would be two units: a production and
assembly unit, and an office clerical unit. Reasons were
presented by management for its desire to split the existing
unit. Negotiations, with Anthony Rutledge and Edward
Yee on the one hand, were assisted by three employee-
members of a union employee negotiating committee. At
all times , Sultan was represented by its attorney, Michael
Only occasionally.
a Effective August 7, 1974.
1345
McCarthy, and its vice president, Thomas Hayes. From the
middle of June until the middle of July, Sultan sought at all
times to split the overall bargaining unit into two units and
to have a 5-year contract.3
There can be no question that by July 18 Sultan was still
proposing the splitting of the bargaining unit into two
units, with a 5-year contract for each.
On July 22, Tony Rutledge announced he was leaving
for the Mainland and Ed Yee would continue negotiating in
his stead' Yee and the employee negotiating committee
met with the Employer until August 8, 1975. Credited min-
utes, as prepared by Edward Yee on July 18, demonstrate
that as of July 18 management and the Union agreed to
split the unit. Minutes prepared by Edward Yee read:
"Tony [Rutledge] will produce clerical contract for man-
agement to review. From here on in, discussion will be
referred to in the terms of production and assembly area-
will save clericals for the end." There is no question in my
mind that Ed Yee had full and complete authority to bar-
gain in behalf of the Union. It was after Tony Rutledge
agreed to the splitting of the bargaining unit into two units
and to having a 5-year agreement that the parties negotiat-
ed concerning only the production and assembly employ-
ees, by mutual agreement. That such was the under-
standing is most evident from the fact that Edward Yee
directed Judith Rodriguez from the office clerical unit not
to be present while negotiations which covered only the
production and assembly departments continued.
It was at or about the end of the July 22 meeting that
Anthony Rutledge told the Sultan representatives that he
was going to the Mainland and that Edward Yee would
continue the negotiations on behalf of the Union. Yee, by
Rutledge's statements, was clearly defined as the bargain-
ing agent for the Union. Very shortly thereafter, Rutledge
told Yee at the Union's office that Yee should "try and wrap
up" the negotiations with Sultan.5
Yee and his employee committee continued to meet with
Sultan's representatives and first agreed to noncost items,
concerning which they agreed by August 2. Committee
members were given copies of a pasteup agreement. On
August 6, management made a "final" wage proposal. Yee
met with the employees and presented the proposal. They
wanted a 5-cent raise rather than a floating holiday. Yee
told them they'd have to take the Employer's last offer or
strike. Yee was told by the employees to take their proposal
to management, but if they could not get what they want-
ed, then accept management 's last offer rather than strike.
Yee returned to management and stated the employees'
desires. Hayes stated there was no more juice left in the
orange . Yee acknowledged the inevitable and told
management 's representatives, "You have got a deal." 6
McCarthy arranged to have the contract printed and ready
for signing by August 8.
It was so ready. On August 8, Yee and management's
3 McCarthy and Hayes were novices at collective bargaining.
Let it not be forgotten that Yee had worked for the Joint Council of
Teamsters since sometime in 1972, and prior thereto had majored in indus-
trial relations at the University of Hawaii where he received an award as an
outstanding student. This is the Ed Yee that Tony Rutledge stated he was
leaving to continue negotiations . Most natural.
5 To me this means nothing other than enter into a contract.
6 A "contract."
1346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representatives signed a contract covering only the Union
and Sultan 's production and assembly employees.' Yee
spent considerable time studying the contract , as I have.
The Employer's employees had the opportunity to study
the contract before Yee signed it. Sultan was told Yee was
going on military leave the next day, when Tony Rutledge
could negotiate for the clerical employees.
I find a good, clear, unequivocal contract with respect to
the Employer's production and assembly workers was en-
tered into, agreed upon, and signed by the parties herein
about August 8, and if other signatures were in order, they
should have been affixed thereto. Yee had complete, real,
and apparent authority to bargain in behalf of the Union.
He did so and irrevocably bound the Union to a contract
which the Union has treated as a nothing. Yee "wrapped it
up"8
For the first time, on August 12, Yee, having bargained
for days, told McCarthy, an attorney who had been repre-
senting the Employer in bargaining, that Yee had no au-
thority to sign the contract since Tony Rutledge had re-
turned from the Mainland .' McCarthy said that was bull,
they had negotiated in good faith and the parties had a
contract.10
On August 13, Tony Rutledge told Sultan he could not
live with the contract . Sultan insisted it had a lawful con-
tract and Rutledge replied he 'd go along with the contract
if he were given two unspecified reopeners after 3 years
and they would not bargain on the clerical unit unless re-
troactivity went back to July 31. Hayes told Rutledge he
could not discriminate against his employees because the
retroactive date for the production and assembly employ-
ees was August 8 . Rutledge gave a 48-hour strike notice.
Sultan put the contract into effect and the Union accepted
dues provided for therein. Later, the Union refused to ac-
cept the dental provisions of the contract.
On October 15, Arthur Rutledge agreed to negotiate a
contract covering all employees as originally certified, re-
serving the right to change proposals.
Sultan continually sought bargaining for a clerical unit,
including the presentation of a contract covering such unit.
In 1975, Sultan asked the Union to bargain for a clerical
unit." Arthur Rutledge refused, saying they were at an im-
passe . About February 20, 1975, Rutledge glanced through
Sultan's contract proposals for clericals , but stated they
were at an impasse . The Union would not negotiate with
respect to the clerical employees , although much earlier it
had agreed that separate units for production and assem-
bly employees and for clerical employees were appropriate.
No constitution or bylaws are in effect for this Union,
nor were they submitted to Sultan. No one ever told Sultan
that Yee's authority to bargain was in any way limited. Yee
was obviously told to bargain, but "to stall." 12 Authority to
bargain in "bad faith" must include authority to bargain in
good faith. Authority to bargain for the clerical unit was
' G.C. Exh. 7.
8 As directed by Tony Rutledge.
9 For what purpose was Yee meeting with the Employer?
10 True.
11 Such a unit had been agreed upon.
12 Bargain in bad faith.
always in the hands of Sultan's bargaining representatives.
Authority to "stall" was illegal and is otherwise ignored.
In January 1975, the Union rejected the dental provi-
sions of the contract.13
It was on October 15 that the Union stated it would
negotiate a contract for a unit as originally certified by the
Board, reserving its rights to change, amend, etc., its pro-
posals during negotiations. Rutledge, Sr., said they were at
an impasse over a clerical unit. At all times, including dur-
ing the trial, the Union declared it would not bargain for a
clerical unit.
Sultan never saw any constitution or bylaws of the
Union and had no reason to believe that Yee was not au-
thorized to sign a contract upon behalf of the Union.14
Indeed, it had every reason to believe he had such authori-
ty. Why else should he have been left bargaining with Sul-
tan, and bargaining was certainly what he was doing? Sul-
tan was never told Yee was without authority to sign a
written contract. He was left there to "talk" about what? A
contract! They talked and arrived at a contract which, un-
der the Act, at Sultan's request, must be reduced to writing
and signed by a union representative-in this case Yee. If
Yee were authorized to bargain and "stall" in signing, a
violation of the Act, he must not have been authorized to
do what the Act required him to do-bargain, agree, and
sign.
Concluding Findings
In 1970, the Union was certified as bargaining represen-
tative for an overall unit of Sultan's employees, with some
obvious exclusions.
A collective-bargaining contract was entered into, expir-
ing June 30, 1974. On April 11, 1974, the Union gave time-
ly notice of intent to reopen and enclosed a list of the new
proposals. In June, negotiations began with Sultan,
through its chief negotiator, Thomas Hayes, taking the po-
sition that rather than one unit there should be two, one
being a unit of clerical employees. On July 18, 1974, the
parties agreed to have two contracts for two units. At the
meeting on this date, Yee noted that Tony would produce
a clerical contract for Sultan to review and the production
and assembly employees would then be bargained for, sav-
ing the clerical to the last. Of course, parties who are sub-
ject to a Board certification may, by mutual consent,
change the scope of the bargaining unit if not obviously
improper. Here, there was "mutual consent" to proper
units.
Once it was agreed to bargain for two separate units, the
Union representative from the clerical unit was directed by
Yee to no longer attend meetings. She did not.
Bargaining thereafter resulted in the contract, in evi-
dence as General Counsel's Exhibit 7. Almost immediately
thereafter, Yee told Sultan that Tony Rutledge would take
care of the negotiations for the clerical employees. They
already had a contract for the production and assembly
employees.
Yee was an experienced and well-trained employee or
13 Yee was discharged some weeks after he signed the contract.
14 If such were the fact.
SERVICE WORKERS , LOCAL 427, TEAMSTERS 1347
Tony Rutledge would not have left bargaining with Sultan
in his hands, even assuming Rutledge had told Yee "to stall
and stall ." Yee was also directed to "wrap up" the negotia-
tions . This was the direct conferring of authority to bargain
upon Yee. This is what he had.
Sultan representatives were never advised that Yee pose
sessed less than full and complete direct authority to bar-
gain for and sign a collective -bargaining contract . His real
and genuine authority has been made clear. That he had
apparent authority is obvious . Sultan was never told Yee
lacked authority. He was clothed with apparent authority
and Sultan was never advised he had authority limited in
any manner . The Employer could not have believed it was
"bargaining" with a "nothing" man. It was never notified
to the contrary. The Union comes too late in attempting to
limit, in any way, Yee's bargaining authority.
For the purpose of argument , I find that father and son
Rutledge told Yee to "stall" in negotiations while Tony
Rutledge was on the Mainland. That is their story. It was
never transmitted to Sultan . Three times Sultan asked the,
Union to bargain about the clerical employees. The Union
replied by giving a strike notice and by striking on Septem-
ber 24, 1974, to force Sultan to rescind the production and
assembly contract. On October 15, 1974, Rutledge, Sr., said
he would bargain only with the Union as previously certi-
fied . The Union demanded that Sultan rescind the new
production and assembly contract. The Union refused to
bargain about the clerical unit at Sultan . Early in 1975,
after hurriedly running through a Sultan contract proposal
for clerical employees , Rutledge , Sr., said he could live
with none of Sultan's contract proposals . He even refused
to bargain at the hearing. A violation of the Act is obvious.
The Union violated the Act when it allegedly directed
Yee to stall rather than bargain.
I find the Union's alleged constitution and bylaws were
spurious so far as this case is concerned.
A requirement of ratification of the employees covered
by the contract is not required by the contract and thus is
not necessary to have a legal contract.
On October 15, 1974, at a meeting with the Federal med-
iator, Rutledge , Sr., insisted he would bargain only with
respect to the certified unit , in spite of the prior agreement
to the contrary.
Rutledge, Sr., when asked to bargain only about the cler-
ical unit , stated the parties were at an impasse . There had
been no bargaining about such unit.
The Union, through Rutledge, Sr., told Sultan they
would not bargain with Michael McCarthy. This was a
violation of Section 8(b)(1)(B) of the Act.
Respondent , at the hearing , claimed the contract had
renewed itself ; it also claimed it had expired."
If ratification by the members of the Union was neces-
sary, it was up to the Union to obtain such ratification or
negation . It was up to it to use its internal regulations. Such
was not done . The negotiated contract was ignored by the
Union through the Rutledges.
Tony Rutledge testified he told Yee to have no misgiv-
ings about signing the contract.
15 Consistency?
About September 26, 1974, Tony Rutledge stated that
the Union would approve withdrawing as representative if
Sultan would cancel the contract.
About the same time, Tony Rutledge told representa-
tives of management that the Union would consider with-
drawing as representative if Sultan would rescind the con-
tract.
That Rutledge, Sr., considered the production and as-
sembly contract lawful is shown by his testimony that he
became most angry when he found out the contract was
signed and he told Tony to get rid of Yee.
Rutledge, Sr., impressed me as a most likeable and very
strong man . However, I do not believe he called Sultan, Jr.,
and told him Yee had no authority to bargain and said
bargaining should cease until Tony Rutledge returned. He
never so advised Yee.
It should be observed that the Union received benefits
from the contract.
I have no doubt that on July 18, 1974, there was discus-
sion about splitting the previously certified unit and such
agreement was reached.
Before Tony Rutledge left for the Mainland, he told the
Employer that if they wanted to continue talking, Yee
could talk to them.16 They so talked and came to a meeting
of the minds about August 7. Yee knew the employees did
not want to strike, and after much more discussion Yee
told Sultan "they had a deal." 17
On the next day Yee read a copy of the proposed con-
tract. He agreed they had a contract.
Yee ceased being an employee for the Union on August
26. Prior to that date, for some time, Yee had apparent and
actual authority to represent the Union as its representa-
tive in collective bargaining with Sultan . In the presence of
Sultan , Tony Rutledge told Yee he could carry on the ne-
gotiations and Yee "could talk to them." Obviously this
authority did not refer to football, baseball, etc. Yee was
specifically authorized to bargain for the employees with
Sultan. They bargained in good faith as to this unit. They
reached agreement and each was required to sign a written
agreement incorporating the terms of the oral agreement, if
requested. The Union was requested. It refused in violation
of the Act.
Yee cannot be found to have unlawfully failed to bar-
gain and reach a contract because he failed to follow al-
leged union directions "to stall." That Yee may have been
unlawfully ordered "to stall" does not emasculate him of
his duty to bargain in good faith, as he did.
Union bylaws, adopted, if they were , by the member-
ship, were seen by no one who did not open or enter the
Union 's safe . Bylaws, in evidence, are merely "model" by-
laws.
The contract entered into by Yee was good and valid,
bylaws or no. There was a meeting of the minds on a con-
tract and it should have been written up and signed as
required by the Act and requested by Sultan. If the law
requires Tony Rutledge to sign the contract, then sign it he
must. It does, and he must. With or without signatures, the
parties had a contract on August 7, 1974.18
16 Obviously about a contract.
17 A contract.
Is Or August 8.
1348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Union's refusal to sign the contract is a continuing
violation of the Act.
Separate contracts for separate appropriate units were
not inappropriate.
Following the August 8 contract , the meetings regarding
bargaining with respect to clerical employees upon the
Employer's agreement to meet with respect to the clerical
employees were most proper.
The rights of the employees herein were treated as
naught by the Union. This Union caused the employees to
be deprived of wages legitimately anticipated by them. The
victims of bad-faith bargaining are to be made whole by
the Union.
The credited evidence shows no need for a Tiidee reme-
dy.
Based upon the entire record , including the demeanor of
the witnesses and briefs of the parties , I conclude that by
its various violations of the Act, an appropriate order
should be made effective.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Union set forth in section III, above,
occurring in connection with the operations of the Union
described in section I, above , have a close, intimate, and
substantial relation to trade , traffic , and commerce among
the several States and tend to lead to labor disputes bur-
dening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that the Union has engaged in unfair la-
bor practices, I recommend that it be ordered to cease and
desist therefrom and to take certain affirmative action de-
signed to effectuate the policies of the Act.
Employees who have lost wages because of the Union's
violations of the Act are to be made whole by the Union
with appropriate interest 19 as prescribed in F. W. Wool-
worth Company, 90 NLRB 289 (1950), and Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).
CONCLUSIONS OF LAW
1. Sultan is an employer engaged in commerce 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. The Union violated Section 8(a)(5), (3), and (1) by its
refusal to bargain, including its refusal to sign a contract
agreed to and entered into by Sultan and the Union.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
19 Six percent.