Ste. Genevieve Local 169, Ceramic Wrkrs.

National Labor Relations Board - Board Decisions

Jun 28, 1971

191 N.L.R.B. 658 (N.L.R.B. 1971)

658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ste. Genevieve Local 169 of the United Glass and
Ceramic Workers of North America , AFL-CIO-
CLC and United Glass and Ceramic Workers of
North America, AFL-CIO-CLC and Mississippi
Lime Company -
Ste. Genevieve Quarry Workers Local 829 and Labor-
ers' International Union of North America, AFL-
CIO and Mississippi Lime Company. Cases 14-CB-
2154 and 14-CB-2155
June 28, 1971
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND KENNEDY
On April 20, 1971, Trial Examiner Louis Libbin
issued his Decision in the above-entitled consolidated
proceeding, finding that Respondents had engaged in
and were engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended, and recommending that they cease
and desist therefrom and take certain affirmative ac-
tion, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, Respondents Ste. Genevieve Local
169 of the United Glass and Ceramic Workers of North
America, AFL-CIO-CLC, United Glass and Ceramic
Workers of North America, AFL-CIO-CLC, and Ste.
Genevieve Quarry Workers Local 829 jointly filed ex-
ceptions to the Decision, with a supporting brief. The
Employer has filed a brief in answer to these exceptions.
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 powers
in connection with this proceeding to a three-member
panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and briefs, and the
entire record in this proceeding, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner.
' Respondents-haye.excepted to certain credibility findings madeby the
Trial Examiner. It is the Board's established policy not to overrule a Trial
Examiner's resolutions with repect to credibility unless the clear preponder-
ancerof,all the relevant evidence convinces us that the resolutions were
incorrect. Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188 F.2d
362 (C.A.. 3). We find no such basis for disturbing the Trial Examiner's
credibility findings in this proceeding
191 NLRB No. 115
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 Trial Examiner and hereby orders that Respond-
ents, Ste . Genevieve Local 169 of the United Glass and
Ceramic Workers of North America , AFL-CIO, Ste.
Genevieve, Missouri; United Glass and Ceramic Work-
ers of North America , AFL-CIO-CLC, Crystal City,
Missouri ; Ste. Genevieve Quarry Workers Local 829,
Ste. Genevieve, Missouri; and Laborers ' International
Union of North America, AFL-CIO, St. Louis, Mis-
souri, their officers , agents, and representatives, shall
take the action set forth in the Trial Examiner 's recom-
mended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Louis LIBBIN, Trial Examiner: Upon charges filed by Mis-
sissippi Lime Company, herein sometimes called the Com-
pany or the Charging Party, the General Counsel of the
National Labor Relations Board, by the Regional Director
for Region 14 (St. Louis, Missouri), issued a consolidated
complaint, dated January 7, 1971, against the above-named
Unions in the caption, herein sometimes called Respondent
Unions. With respect to the unfair labor practices, the com-
plaint alleges in substance that Respondent Unions violated
Section 8(b)(3) of the Act by refusing to sign a written agree-
ment embodying terms and conditions of employment upon
which the parties had reached agreement. In their duly filed
answers, Respondent Unions deny all unfair labor practice
allegations.
This case was tried before me at St. Louis, Missouri, on
February 24, 1971. All parties except Laborers' International
Union of North America, AFL-CIO,' appeared at the trial.
Said parties were represented by counsel who were given full
opportunity to, and did, participate in said trial. For the
reasons hereinafter indicated, the motion to dismiss, filed by
the Laborers' International prior to the commencement of
this trial and upon which I reserved ruling, is hereby denied.
Only the General Counsel and the Charging Party filed briefs,
which were received on March 29, 1971, and which I have
fully considered. For the reasons hereinafter indicated,. Ifind,
that Respondent Unions engaged in conduct violative of Sec-
tion 8(b)(3) of the Act as alleged in the consolidated com-
plaint.
In a motion to dismiss, dated February 19;1971, said Laborers' Internar
tional stated that it would not appeari or, participate in this trial
STE. GENEVIEVE LOCAL 169, CERAMIC WRKRS. 659
Upon the entire record in the case,' and from my observa-
tion of the demeanor of the witnesses while testifying under
oath, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Mississippi Lime Company, herein sometimes called the
Company or the Charging Party, is a Missouri corporation
with its principal office and place of business in Ste. Gene-
vieve, Missouri, where it is engaged in the mining, processing,
sale, and distribution of lime and related products. During
the year ending December 31, 1970, a representative period,
the Company purchased goods and materials valued in excess
of $50,000 from points located outside the State of Missouri;
during the same period, the Company shipped products
valued in excess of $50,000, from its place of business in
Missouri directly to points located outside the State of Mis-
souri.
Upon the above-admitted facts, I find that the Company is
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE STATUS OF RESPONDENT UNIONS
The consolidated complaint alleges, the answers admit, the
record shows, and I find that the Respondent Unions named
in the caption of the complaint are labor organizations within
the meaning of Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. Introduction,• the Issues
The relevant parties admit, as the complaint alleges and as
I find, that at all times since June 19, 1959, as a result of a
secret ballot election conducted by the Board, Ste. Genevieve
Local 169 of the United Glass and Ceramic Workers of North
America, AFL-CIO-CLC, and United Glass and Ceramic
Workers of North America, AFL-CIO-CLC, herein some-
times separately called Local 169 and the Glass Workers
International, respectively, and jointly as the Glass Workers,
have been and are now the exclusive representative for pur-
poses of collective bargaining of all the employees in the
following appropriate unit within the meaning of Section 9(a)
and (b) of the Act:
All production and maintenance employees of the Mis-
sissippi Division of the Company at Ste. Genevieve, Mis-
souri, excluding office clerical employees, professional
employees, guards and supervisors as defined in the Act,
and all other employees.
2 I hereby note and correct the following obvious inadvertent errors in the
typewritten transcript of the testimony: On 1. 6 p. 21, the number "26" is
corrected to read "6", on 1. 11 p. 110 and on 11. 18 and 22 p. 111, as well
as elsewhere in the transcript, the word "initiated" is corrected to read
"initialed"; on 1 p. 126, the word "in" is corrected to read "an"; and on 1.
18 p. 140, the word "maximum" is corrected to read "minimum "
In its brief, the Charging Party moves to correct the typewritten transcript
in certain other specific respects. In the absence of any objections thereto,
said motion is hereby granted and said corrections have been physically
made in said transcript.
Both the General Counsel and the Charging Party move in their briefs to
correct the typewritten transcript to show the receipt in evidence of the
General Counsel's offered Exh. 15 and- 16. There were no objections to this
offer at the trial and said exhibits are in fact marked as having been received.
My notes indicate, in accord with those of the General Counsel and the
Chargrng,Party, that I did receive these exhibits in evidence. No objections
have,been received to the granting of said motions. Under all the circum-
stances, I hereby grant said motions and have physically corrected the
transcript to show the receipt in evidence of these exhibits
Except for Laborers' International Union of North America,
AFL=CIO, the relevant parties also admit, as the complaint
alleges and as I further find, that at least since 1967, as a result
of a secret ballot election conducted by the Board for Local
829 many years earlier, Ste. Genevieve Quarry Workers Lo-
cal 829 and Laborers' International Union of North America,
AFL-CIO, herein sometimes separately called Local 829 and
the Laborers' International, respectively, and jointly as the
Laborers, have been and are now the exclusive representative
for purposes of collective bargaining of all the employees in
the following appropriate unit within the meaning of Section
9(a) and (b) of the Act:
All production and maintenance employees of the Peer-
less and Ste. Genevieve Divisions of the Company at Ste.
Genevieve, Missouri, excluding office clerical employees,
professional employees, guards and supervisors as
defined in the Act, and all other employees.
As previously noted, the Laborers' International denies that
it has ever been the collective-bargaining representative, ei-
ther separately or jointly with Local 829, of the employees in
the aforestated appropriate unit.
The Glass Workers and the Laborers each had separate
3-year collective-bargaining agreements with the Company,
covering the employees of their respective units and contain-
ing a termination date of June 30, 1970. Article 12 of each
contract, entitled "Safety and Health," was identical and
contained the provision (12.04) setting forth the "right of the
Company to make and enforce reasonable safety rules and
regulations as it may deem necessary for the purpose of the
safety and health of its employees and safeguarding the plant
and equipment ... provided the same are not inconsistent
with the terms of this Agreement." During the contract term,
the Company recognized that Federal legislation was being
developed on employee safety and realized that it had never
published a document outlining in detail the safety equipment
to be worn and under what circumstances. Therefore, during
the 1970 period of the contract term, the Company published
a booklet of safety standards which, among other things,
required all employees in the plant and mines to wear hard-
toed safety shoes and other certain safety equipment in cer-
tain areas and under certain situations. A dispute arose be-
tween the Respondent Unions and the Company concerning
the implementation of these safety requirements. The con-
tract itself did not require employees to wear safety shoes
although a majority wore them as a matter of practice at their
own expense. The Unions took the position that they would
not agree to the requirement that safety shoes be worn unless
the Company agreed to purchase the shoes for everyone at the
Company's expense. The Company was unwilling to agree to
this expenditure and, as the contracts were to expire within
a few months, decided to hold off implementing all the provi-
sions of the safety booklet in the hope that some of their
differences would be resolved in the impending negotiations
for new contracts.
Negotiations for new contracts with the Glass Workers
and the Laborers began at the same time in May 1970. From
then until June 30, the expiration date of the contracts, 12
meetings were held. When full agreement had not been
reached at the end of the June 30 meeting, the Unions en-
gaged in an economic strike. During the strike, a negotiating
meeting was held on July 7 under the auspices of the Federal
Mediation and Conciliation Service. The strike ended on July
9 with the parties signing "Economic Settlements." There-
after on August 10 and 12, 1970, Respondent Unions refused
to sign the formal written agreements drafted and presented
by the Company as embodying all the terms upon which
agreement had previously been reached.
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel contends, as the complaint alleges,
that these formal written agreements embodied all the terms
and conditions of employment upon which all parties had
previously agreed and that therefore Respondents' refusal to
sign them constituted a refusal to.bargain within the meaning
of Section 8(b)(3) of the Act. Respondents do not dispute the
Legal conclusion flowing from the failure or refusal to sign
a written contract embodying all terms upon which agree-
ment had been reached. They contend, however, that the
parties had not agreed upon a complete contract in that the
formal agreements presented for their signatures contained
language in article 12 relating to safety equipment upon
which, they assert contrary to the General Counsel and the
Charging Party, no agreement had previously been reached.
This case thus narrows down to two principal issues for my
determination. The first issue is whether the parties had in
fact agreed upon the language of article 12 relating to safety
equipment, as contained in the formal agreements which Re-
spondents admittedly refused to sign on August 10 and 12,
1970. A determination of this issue depends primarily on
credibility resolutions . The second issue is whether the La-
borers' International is also liable in the event of a finding of
a refusal to bargain in violation of Section 8(b)(3) of the Act.
B. The Refusal To Bargain
1. The 1970 negotiations'
The 1970 negotiations for new contracts with the Glass
Workers and the Laborers were conducted simultaneously at
all meetings but in alternating sessions. Thus, although the
Company bargained separately with the Glass Workers and
with the Laborers, there were reciprocal understandings that
each Union could have representatives of the other Union
present as their guests during the negotiations. The result was
that the full negotiating committees of both the Glass Work-
ers and the Laborers were physically present at virtually all
the negotiating sessions. The meetings would generally open
with negotiations with the Glass Workers. After a few hours
there would be a caucus and that meeting would be ad-
journed. The parties would then immediately convene the
meeting with the Laborers and go over the comparable con-
tract provisions which had been covered with the Glass
Workers. From four to six such separate meetings were some-
times held on a single day on this alternating basis. Thus, both
groups of union representatives were present at the same time
on each day and in most instances each group overheard the
bargaining which went on with the other group.
The following constituted the negotiating teams for the
Unions and the Company at all the meetings where serious
negotiations took place: The Glass Workers were represented
by W. B. Hobbs who was president of Glass Workers District
4, International Representative Louis Biehle, President How-
ard of Local 169, Vice President Vaethe of said Local, and an
employee committee of said Local. International Representa-
tive Biehle was the chief spokesman for the Glass Workers.
The Laborers were represented by International Representa-
tives W. W. Scheffer and Michaels, Frank Kuehn, Louis
Meyer, and Doyle Seawel, who were president, business
agent , and vice president, respectively, of Local 829, and a
four-man employee committee of said Local. Local President
Kuehn was the chief spokesman for the Laborers. The Com-
pany was represented by Attorney Ray Breckenridge, Vice
President Caputo, Personnel Manager Dickey, and a team of
four plant superintendents. Attorney Breckenridge was the
chief spokesman for the Company beginning with the meet-
mg of June 17. Federal Mediator John Kanestraight was also
present at the July 7 meeting held during the strike.4
As in prior negotiations, all parties agreed and followed the
procedure of first negotiating tentative agreements in all areas
of proposed language changes before addressing themselves
to the negotiation of economic issues or cost items. They also
agreed and followed the past practice of initialing the section
or provision upon which agreement on language changes was
reached during the course of the negotiations. A notation
indicating agreement and the date were also set forth. This
initialing was done by International Representative Biehle for
the Glass Workers, by Local President Kuehn for the Labor-
ers, and by Attorney Breckenridge for the Company. Each
party had an identical copy of a contract and all initialed and
dated each relevant copy. Items on which no agreement was
reached during the course of the negotiations were also ini-
tialed and dated with the notation "passed" or "discussed"
or "hold."
(a) Meetings before the strike
Although the Glass Workers and the Laborers had sepa-
rate contracts, the expiration date in each was June 30, 1970.
About 12 meetings were held prior to the strike which com-
menced at midnight on June 30. The negotiations with refer-
ence to the safety apparel referred to in article 12 was identi-
cal both for the Glass Workers and the Laborers. Article
12.01 of the contracts then in effect stated, among other
things, that "Protective devices, wearing apparel and other
equipment necessary to properly protect employees from in-
jury shall be provided by the Company without cost to em-
ployees in accordance with present practice." (Emphasis sup-
plied.) It was not the then existing practice for the Company
to supply employees with hard-toed safety shoes. The issue of
changing the practice with regard to furnishing safety apparel
first arose when the Unions submitted their first typed con-
tract proposals at the meeting of June 16 or 17. Article 12 in
these proposals contained an additional provision requiring
the Company to pay for all safety apparel, including safety
shoes. At that time the Company merely stated that they
would study the contract proposals and discuss them at a
later date, with no specific mention'being made of the above
requirement in article 12. When the Company later counter-
proposed on this item with an offer to pay $5 per man per
year, the Unions requested $40. The Company later raised its
offer to $20 and the Unions reduced its demand to $30. At
the meeting on June 29, the Company submitted a typed
document, entitled "Company Final Language Proposal," as
the Company's final position in regard to the then still open
language issues on noneconomic items . This document con-
tained two significant additions to the safety and health provi-
sions of article 12 of the contracts then in effect. One was in
article 12.01 which added the provision that each employee
would receive $20 per contract year "for the purpose of pro-
viding himself with hard toed safety shoes and gloves." The
other was in article 12.04 which added the provision that
"The Safety Standards' booklet will be considered the basic
safety rule book." As previously noted, this booklet, among
other things, required all employees in the plant and mines
to wear hard-toed safety shoes. The Unions however were
still insisting on the payment of $30 per man per, year. As a
result, no agreement was reached on article 12 at that time.
' Attorney McMahon also attended the June 17 meeting as a representa-
Unless otherwise indicated, the findings in this section are based on tive for the Company Hobbs was absent at one meeting. The four company
credited evidence which is either admitted or undisputed. superintendents were not present at the July 7 meeting
STE. GENEVIEVE LOCAL 169, CERAMIC WRKRS. 661
On June 30, the membership of the Laborers and the Glass
Workers rejected the Company's final package economic
offer which was submitted during the meeting on that day. A
strike began at midnight on June 30, at which time picket
lines were set up.
(b) Meetings during the strike
The only meeting held during the strike was on July 7
under the auspices of the Federal Mediation and Conciliation
Service . This meeting was held at the American Legion Hall
with Federal Mediator John Kanestraight and lasted from
about 9:30 in the morning to midnight. At his suggestion, the
parties agreed that they would first try to resolve the open
issues in the language areas before addressing themselves to
the economic issues.
The parties used the "Company's Final Language
Proposal," copies of which were submitted to the Glass
Workers and the Laborers on June 29, as the document from
which to work. The Company and each Union had a copy at
this meeting . By the early afternoon, the parties reached
agreement on the then still open language issues. At that
point International Representative Biehle for the Glass
Workers and Attorney Breckenridge for the Company went
through their respective copies of the "Company's Final Lan-
guage Proposals" and on both copies each put their initials
in the margin opposite every section where language changes
had been made, with the notation "language agreed" and the
date "7/7/70." (G.C. Exh. 9). Where a change had been
made during the meeting on July 7, this was also reflected in
the margin of this document and initialed and noted in the
same manner . For example, in article 2.03, a line was drawn
through the paragraphs which had contained language
changes proposed by the Company and the notation in the
margin initialed by Biehle and Breckenridge states "same as
old contract ; no change agreed to ." The same notations and
marking appear in article 17.01. Also article 17.02, which was
revised that day, contains the notation in the margin "Lan-
guage agreed to as revised ," followed by the date and the
initials. Even those articles and provisions concerning which
no language changes had been proposed at any time during
the negotiations , were also initialed and dated in the margin
with the notation "agreed."
Article 12, Safety and Health , contains the following nota-
tions and markings: With respect to section 12.01 which
contained the additional provision for the payment to each
employee of $20 per year "for the purpose of providing him-
self with hard-toed safety shoes and gloves," the notation in
the margin which is ' initialed and dated states "Language
agreed (except amount)." There is then an arrow pointing to
the sentences relating to the payment of the $20 which are
enclosed in parentheses and the word "Hold" is noted in the
margin opposite said , sentences . Each of the remaining sec-
tions of article 12 (12.02, 12.03, and 12.04), is initialed and
dated in the margin with the notation "Language Agreed"
opposite each section . As previously noted , it was article
12.04 which contains additional language incorporating the
Company's "Safety Standards" booklet which , among other
things , requires the wearing of hard-toed safety shoes.
After Biehle and Breckenridge had finished going through
the language proposals and initialing ' and noting them in the
above-described manner, Breckenridge for the Company and
International Representative Scheffer and Local 829 Presi-
dent Kuehn for the Laborers went through the exact same
process with an identical copy which Kuehn had in his
possession (G.C. Exh. 6). All articles and sections were ini-
tialed and dated in the margin on both copies by Kuehn and
Breckenridge with the same notations as in Biehle's copy,
including the identical notation and markings for article 2.03,
17.01, and 17.02. The Company's proposed language in all
provisions of article 12 is identical in the Laborers copy with
that in the Glass Workers copy. As in Biehle's copy, article
12.01 is initialed and dated in the margin with the notation
"Language agreed to (except for amount-economic)." There
is then an arrow pointing to the sentences calling for the
payment of $20 per employee per year . These sentences are
likewise enclosed in parentheses with the word "Hold" noted
in the margin opposite them . Kuehn asked Breckenridge, "I
want to be sure that I understand this. This is an open issue
on the economics?" Breckenridge replied, "That is correct."
The rest of article 12 (12.02, 12.03, and 12.04) is initialed and
dated in the margin with the notation "Language Agreed"
opposite each section , all in the same identical manner as in
the copies retained by Biehle and Breckenridge . Both Kuehn
and Biehle retained their respective copies which had been
initialed , dated, and marked up in the manner hereinabove
described.
By late afternoon, the parties were in agreement except for
the still open economic or cost issues and began to address
themselves to those issues . Breckenridge stated that the Com-
pany's final wage package which it had given to the Unions
on June 30 was as much as the Company was willing to spend
during the next 3 years but that it was not wed to any particu-
lar arrangement of the various economic items and was will-
ing to consider any rearrangement of various items which
would more suitably meet the demands of the Unions' mem-
bership. The Unions were still demanding $30 per man per
year as a contribution for the purpose of safety equipment,
while the Company was still offering $20 per year per man
for the purchase of hard -toed safety shoes and gloves as stated
in article 12.01 of its proposal . In order to achieve the Unions'
goal of a $3 per hour minimum rate , it was necessary for them
to get a 41-cent per hour increase during the first contract
year and that is what they were asking . By late evening Inter-
national Representative Biehle of the Glass Workers pre-
sented a counterproposal which he stated he would person-
ally recommend that the membership accept as a basis for
settling the strike . This counterproposal provided, among
other things , for the 41-cent per hour increase during the first
contract year so as to reach the minimum rate of $3 per hour.
Insofar as here relevant , Biehle's proposal to arrive at this
rate was to drop the Unions' demand for any company contri-
bution for safety equipment , including the safety shoes to-
ward which the Company had offered $20 per man per year
and had costed out as 1-cent per hour . This money was to be
made available to help make up the difference on the 41-cent
per hour first-year wage increase demanded by the Unions. In
response to Breckenridge 's question as to whether Scheffer
and Kuehn were making the same proposal on behalf of the
Laborers, President Kuehn of the Laborers Local replied that
he would submit the same offer to his membership which
Biehle was recommending and that he would not stand in the
way of their accepting it.
After a caucus by the company committee, Breckenridge
returned and explained that the added cost over the 3-year
contract period was more than he had been authorized to
accept, and that he would have to get further authorization
before he could agree to it. An adjournment was then taken
and Breckenridge and Vice President Caputo consulted with
President Ballinger . Upon their return to the Legion Hall,
Breckenridge advised Biehle and Kuehn that if within the
next 24 to 48 hours their respective Unions would ratify
Biehle 's offer as the basis for settling the strike and for accept-
ing the contract with all the language upon which agreement
had already been reached , then he was authorized to assure
them in advance that the Company would accept it. In order
to be absolutely certain about the safety shoe item , Brecken-
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ridge again said to ' Biehle : that "I understand what you are
saying, you wan t to.trade • this penny that the Company off-
ered in its June 30 offer, you want to put that into the wage
package, that your demand for this subsidy : is, dropped."
Biehle replied, "Thatis,correct." The meeting then broke up.
On the way out in the lobby of the Legion ^blal1, Interna-
tional Representatives Biehle of the Glass Workers and
Scheffer of the Laborers explained that they were going to
hold a joint membership meeting of the two locals - because,
while Biehle and Scheffer were prepared affirmatively to try
to sell to the membership the package which . Biehle had
outlined, Kuehn was merely willing to submit it to,-the mem-
bership without affirmatively trying to sell it. The time factor
was an additional reason for a joint meeting.
The foregoing findings relating to the July 9 meeting,
which findings are based on the credited testimony of Attor-
ney Breckenridge and Vice President Caputo , documentary
evidence, and some admissions by Kuehn , are disputed only
in one significant respect. Laborers Local President 'TKuehn is
the only witness who: testified on behalf ofy " Respondent
Unions. Kuehn testified that, when they were resolving the
language issues on the noneconomic items, he told Brecken-
ridge during discussions on the language in article 12 that the
Unions would agree to the language in the. -Company's
proposals and would initial it but only on condition that "the
whole Article 12 would revert back to the old contract" if the
Company did not include the money for safetye equipment
when they negotiated and settled the economic issues. He
further testified that Breckenridge replied , "definitely that is
the understanding," and that they then initialed article 12
"under that condition ." He also testified that , when Brecken-
ridge informed the Unions that the company would accept
Biehle 's proposal of eliminating any company contribution
for safety equipment in order to reach the 41-cent per hour
wage increase for the first contract year , he asked, Brecken-
ridge "if this means that we revert back to the old contract,"
that Breckenridge replied in the affirmative , and that Kuehn
stated, "I wanted to be sure so when I tell the membership
this is the course of the conversation that we had."
Breckenridge denied that either he or Kuehn made any of
the statements set forth in Kuehn's testimony in the preced-
ing paragraph . Breckenridge 's testimony, reflected in my
prior findings in this section , is directly to the contrary, and
he was corroborated by Caputo in these respects.
I credit the testimony of Breckenridge and Caputo in ac-
cordance with my findings previously set forth on this issue
and do not credit that of Kuehn for the following reasons:
(1) The demeanor of the witnesses is a substantial factor for
my credibility resolution . A careful scrutiny of-the demeanor
of the witnesses while testifying under oath caused' me to be
more favorably impressed with Breckenridge and Caputo as
forthright, reliable, and honest witnesses.
(2) The failure of Respondents to have International Rep-
resentative Biehle as a witness , although present at the union
counsel's table throughout the trial , is most significant. In-
deed , the Glass Workers did not put on any evidence at the
trial. Biehle was the chief spokesman for the Glass ' Workers
International and Local and was present at all negotiating
sessions which were held concurrently with the Laborers in
alternating fashion , as previously described. Biehle was the
one who made the offer at the July 7 meeting, in I Kuehn's
presence , to drop the Unions ' demand for the company con-
tribution of the $30 for safety equipment and to take the $20
which the Company, had' offered for safety shoes and add it
to the first year 's wage increase in order to help attain the
Union's goal of a 41-cent per hour increase for the first con-
tract year. Breckenridge's. testimony that Biehle 's offer was
not conditioned by Kuehn upon the language of the whole
article 12 reverting to the old contract , as Kuehn testified,
and that Biehle initialed all sections of article 12, agreeingto
the language without comment, is not contradicted by Biehle.
Yet, if Kuehn had in fact attached the conditions to which
he testified with respect to article 12 and had in fact made
such statements with respect thereto at the July 7 meeting,
and if at that meeting Breckenridge had in fact agreed with
Kuehn 's alleged statements in this respect, as Kuehn further
testified , then Biehle would have been aware of all this and
would have been in the best position to corroborate Kuehn
on this vital disputed issue. Under these circumstances, Bieh-
le's failure to testify as a witness for Respondents warrants
the inference, which I herein make, that his testimony would
have been adverse to Respondents.'
(3) The notes made by the parties on the June 29 company
proposals used at the July 7 meeting strongly militate against
Kuehn's version . If, as he testified , any new language in arti-
cle 12 (particularly 12.04 which incorporated the Company's
"Safety Standards " booklet as the "basic safety rule book")
was contingent upon a company contribution for safety
equipment , it would have been a simple matter for the parties
so to indicate in the margin opposite this article or to indicate
that the language would revert to the original contract if the
Company made no contributions to safety apparel. There are
other articles in this document which contain a notation in
the margin that certain proposed language was rejected and
that the language in the prior contract continued with or
without revision (see, for example , articles 2.03 , 17.01, and
17.05 , supra). However, all sections of article 12 are, uni-
formly marked "Language Agreed" and initialed by Biehle
and Kuehn except that the offered $20 contribution in 12.01
was held in abeyance pending final agreement on all economic
items. Neither Kuehn nor Biehle made any notations that
their written approval of these items was in any way contin-
gent on any proposal or agreement not incorporated therein.
(c) Ratification by the membership
At a joint meeting of the Glass Workers and Laborers
Locals, in contract proposals advanced by the Unions at the
July 7 meeting , and accepted in advance by the Company, as
the basis for settling the strike and all contract issues were
accepted by the membership of both Locals . Acting on behalf
of the Glass Workers and the Laborers , Biehle then notified
the Company of said ratification by the membership.
Kuehn testified that "the membership accepted it under
the condition that we set forth to them that the language in
Article 12 would go back to the old contract, and everything
stood as it was in the old contract." However, on cross-
examination , Kuehn admitted that it was the proposal which
Biehle had submitted to the Company on July 7 that was
taken back for ratification by the membership of both Locals.
And, ' as previously indicated, Biehle did not deny Brecken-
ridge's credited testimony that Biehle had agreed, to the
proposed language of article 12 without reservation other
than economic and that Biehle's last proposal contained a
commitment to drop the demand for the company contribu-
tion for safety apparel . Under all the circumstances and for
the reasons previously indicated, I do not credit Kuehn's
testimony ' that his claimed condition was made known to the
membership and that Biehle's proposal ! was accepted on that
basis. I credit the testimony of Breckenridge that at the July
7 meeting Kuehn stated that "they would submit the same
offer as outlined to us by Mr . Biehle to their membership,"
and find that the proposals submitted to and ratified by the
5 Volkswagen de Puerto Rico, Inc, 172 NLRB No. 225
STE. GENEVIEVE LOCAL 169, CERAMIC WRKRS.
Laborers and Glass Workers membership contained no such
conditions as claimed by Kuehn.
(d) Strike settlement-July 9
About 9 p.m. on July 9, 1970, representatives of the Labor-
ers and the Glass Workers came to Vice President Caputo's
office where they executed a document entitled "Economic
Settlement 1970 Contract." The Glass Workers document
was signed on behalf of the Glass Workers by International
Representative Biehle, Howard, and Vaethe, the Local's
president and vice president, respectively. The Laborers
document was signed on behalf of the Laborers by Interna-
tional Representative W. W. Scheffer, Local Business Agent
Meyer, and Seawel and Stuppy, local vice president and re-
cording secretary, respectively. The documents were signed
on behalf of the Company by Vice President Caputo and
Personnel Manager Dickey. Although Kuehn was not
present, he testified that he had no disagreement with the
terms and provisions of this final economic settlement.
These documents, embodying the economic terms agreed
to in the July 7 meeting, stated that they were "conditioned
upon a new three year contract, incorporating all economic
and noneconomic issues and contract language as is con,
tained in the old contract, without change, except for those
language changes previously agreed upon and initialed or as
last proposed by the Company as of this date, accepted, ratified
by the Union membership and signed by the Union. " (Empha-
sis supplied.) With the execution of these documents, the
strike was formally ended. Upon the employees' return to
work, all economic provisions of both agreements, including
the wage increases and fringe benefits, were immediately put
into effect by the Company which then proceeded to prepare
formal contract documents for execution by the parties.
2. Respondents' refusals to execute formal agreements6
(a) Meeting of August 10
A meeting with Respondent Unions for the formal execu-
tion of the agreements was scheduled for August 10. Copies
of the formal agreements, embodying all provisions previ-
ously agreed upon, were submitted in advance to the respec-
tive Unions for their examination prior to the meeting. At this
meeting, the Glass Workers was represented by International
Representative Biehle, Local President and Vice President
Howard and Vaethe, respectively, and the employee members
of the negotiating team; the Laborers was represented by
International Representative Scheffer, Local President, Vice
President , and Business Agent Kuehn, Seawel, and Meyer,
respectively, and the employee members of the negotiating
team; the Company was represented by Vice President
Caputo, Personnel Manager Dickey, and the team of four
superintendents. Attorney Breckenridge was not present.
Caputo opened the meeting by stating that he understood
they were here for the purpose of executing these documents
in a formal manner, that the documents are on the table and
that the Company is ready to sign. He then asked whether the
Unions were ready to sign . Biehle and Howard raised a few
items which were cleared up to everyone's satisfaction.
Caputo then asked, "are we now ready?" Biehle replied, "no,
we are still not ready." When Caputo asked what the problem
was, Biehle replied that article 12.04 contains language incor-
porating the Company's safety manual which requires the
employees to wear safety shoes. Caputo replied that he was
' The findings in this section are based on a composite of the mutually
consistent testimony of Laborers Local President Kuehn, Company Attor-
ney Breckenridge, and Company Vice President Caputo, the only witnesses
who testified.
663
aware of that and pointed out that the parties had "signed
that all off as acceptable language back on July 7." Biehle
stated that "we are not going to buy it," that when the Unions
gave up their demand on the shoe issue and put the Com-
pany's offered amount into the wage increase , the language
of article 12.04 reverted to the old contract which did not
incorporate the safety manual, and that the Unions were not
going to buy the shoes now. Caputo replied that as far as he
was concerned , all negotiations on economic and language
issues were closed and that if they did not sign the document
today he could do nothing more than inform the Company's
attorney of the situation. The meeting thereupon broke up.
(b) Meeting of August 12
The parties met again on August 12. Attorney Brecken-
ridge was also present for the Company. Also present was
Federal Mediator Kanestraight. Both Unions refused to sign
the agreement. They stated that they would not agree to the
language in article 12.04 which incorporates the Company's
safety manual unless the Company would agree to pay $30
per year per man toward the cost of the safety shoes. Brecken-
ridge pointed out that the Company had offered $20 for that
purpose, that the Unions took that money and put it into
wages, that the Company was not going to spend the same
money twice, that they have a valid existing agreement, and
that the Company has been complying with its provisions.
Breckenridge showed the Unions' representatives the ini-
tialed documents where the parties had agreed to the lan-
guage in article 12.04. After some further discussion, the
meeting adjourned with the Unions still refusing to sign. The
Respondent Unions have to this date refused to execute the
formal agreements.
3. Conclusions
It is clear that the only issue raised by Respondents in
refusing to execute the formal agreements on August 10 and
12, 1970, relates to article 12 in those agreements. Respond-
ents objected to the language in article 12.04 incorporating
the Company's safety manual which requires the employees
to wear safety shoes. They demanded as a condition of signing
the agreements that either this language be deleted or the
Company agree to pay $30 per year per man for the purchase
of safety apparel. They took the position that when the Com-
pany's offer of $20 per year per man for safety shoes was
eliminated from article 12.01 at the July 7 meeting, the whole
article reverted to the language of the old contract which did
not incorporate the Company's safety manual. The position
of the General Counsel and the Company is that at the meet-
ing of July 7, 1970, the parties had agreed to and initialed the
language contained in every section of article 12, including
12.04, that the only reservation was on the amount offered by
the Company for safety shoes in article 12.01 and this was left
open as an economic issue, that when the economic issues
were negotiated the Unions offered to take the Company's
offer of $20 and apply it to the first year wage increase in
order to bring the increase up to a minimum of $3 per hour,
that the Company accepted this offer subject to ratification by
the Unions' membership, that the remainder of article 12 was
left without change as previously approved and initialed by
all parties, and that full agreement had been reached on all
language and economic issues as noted by the parties in the
documents on July 7 and the strike settlement agreements
executed on July 9.
Based upon my findings previously made, I agree with the
contentions and positions of the General Counsel and the
Company. I find that when the membership of both Locals
voted to accept Biehle's proposals of July 7, the Company's
prior acceptance of which was merely conditioned upon
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ratification by the Unions' membership, all contract terms,
upon which I find full agreement had been reached, became
legally final and binding on the parties.' Accordingly, I find
that Respondents' subsequent refusals, upon request by the
Company, to execute the written contracts which incor-
porated the agreements which I have found had been reached,
constitutes a refusal to bargain collectively within the mean-
ing of Sections 8(b)(3) and 8(d) of the Act.
C. Liability of Laborers' International'
As previously noted, although afforded full notice and op-
portunity, Laborers' International failed and refused to ap-
pear and participate in this trial. Instead, it relied wholly on
its answer to the complaint and on its motion to dismiss, filed
before the instant trial. As grounds for dismissal of the com-
plaint against the International, it asserts, in substance, that
it has never been directly involved in negotiations with the
Company, except in assisting Local 829, that it has never
represented the Company's employees or been a party to the
contracts with the Company, that W. W. Scheffer has never
been an International representative and never had authority
to-bind the International, that Michaels, an admitted Interna-
tional representative, attended the bargaining sessions with
the Company solely at the request of Local 829 in the
capacity of an observer and adviser, and that the charge in
the instant case was the first notice the International had of
any contract involvement or of Scheffer acting on its behalf
without authority to do so.
Needless to say, no evidence was adduced to support the
foregoing assertions. On the other hand, the following undis-
puted facts are established in the record. Although only Local
829 was certified in 1948 as the employees' bargaining repre-
sentative, the 1967-70 contract states in the preamble that it
is "made and entered into" with "the Laborers' International
Union of North America, AFL-CIO, and Ste. Genevieve
Quarry Workers Local 829, both hereinafter called the
`Union."' In this contract, the "Company recognizes the
Union as the sole and exclusive bargaining agent" for all the
employees in the unit defined therein. Section 11.01 of this
contract specifically involves the International in the griev-
ance procedure. Among those whose names appear as having
executed the contract on behalf of the Union is the name of
"W. W. Scheffer" with the title of "Int'l. Rep." In a supple-
mental agreement, effective March 7, 1969, the name of W.
W. Scheffer also appears as one of the signers on behalf of the
International and Local 829. In the 1967 negotiations,
Scheffer was introduced to the Company's attorney as the
International representative for the Laborers' Union. In the
1970 negotiations, both Scheffer ' and Michaels were intro-
duced together to the Company's representative at the June
17 meeting as International representatives. As previously
found, Scheffer participated in the 1970 negotiations, and was
present and took part therein as an International representa-
tive during the meetings at which Michaels, the admitted
International representative, was also present. At the nego-
tiating session on June 17, 1970, Scheffer and Michaels were
both present when the language of the preamble of the 1967
contract was discussed and agreement reached to continue its
language in the 1970 contract without change. In the pres-
ence of Scheffer and Michaels, the "master copy" of the 1967
agreement was thereupon initialed to denote,this decision. At
the meeting of June 18, the International's responsibilities in
' See, e.g., Teamsters Local 249 (V & M Manufacturing Company), 168
NLRB 389, 390; and United Cement, Lime and Gypsum Workers interna-
tional Union (Nevada Cement Company), 173 NLRB No. 214.
The factual findings in this section are based on undisputed credited
testimony and exhibits.
the grievance procedure were further broadened in the 1970
proposals at the request and in the presence of both Michaels
and Scheffer. At the August 10, 1970, meeting no one raised
any objections that the preamble in the contract with the
Laborers stated that the agreement was between the Com-
pany and the International and Local 829 and that both were
recognized by the Company as the employees' exclusive bar-
gaining representative. At no time did Michaels or any other
representative of the International advise the Company that
Scheffer was in fact not what he purported to be or that his
apparent authority was in any way spurious.
Certification is not necessary to render an International
union as the bargaining representative of employees jointly
with one of its Locals; it is sufficient that, as in the instant
case, the International be recognized as such joint representa-
tive by the execution of a contract.' I find, as it is clear from
the foregoing factual recitation, that the International,
through Michaels, its admitted representative, knew not later
than June 17, 1970, that Scheffer was purporting to act as an
agent of the International, that all parties to the negotiations
were dealing with him in that capacity, that the International
had been named as a party to the 1967 contract and recog-
nized therein as exclusive bargaining representative jointly
with the Local, that the International was included in the
1970 contract proposals in the same status, and that Scheffer
was purporting to act 'for the International during the
negotiations. Michaels' knowledge of the proceedings and of
the part played by Scheffer in them is clearly attributable to
the International. At that point, it became incumbent upon
the International affirmatively to disavow Scheffer as its
agent, and to notify the parties to the negotiations that his
apparent authority was nonexistent and that his actions were
not binding upon the International. No such action was taken
by the International. Under these circumstances, I find that
the International's failure to take any steps to disassociate
itself from Scheffer and the 1970 negotiations for almost 6
months after their completion, or even to notify the Company
of Scheffer's alleged lack of authority, renders the Interna-
tional liable as a full party to the contract on an equal basis
with its Local."
For the foregoing reasons, I find that the Laborers' Inter-
national is equally liable with Local 829 for violating Section
8(b)(3) of the Act and is subject to the same remedial Order
herein recommended. Accordingly, the International's mo-
tion to dismiss the complaint as to it is hereby denied.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondents set forth in section III,
above, occurring in connection with the operations of the
employer named 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
burdening and obstructing commerce and' the free flow of
commerce.
CONCLUSIONS OF LAW
1. Respondents are labor organizations within the meaning
of Section 2(5) of the Act.
2. Mississippi Lime Company is an employer within the
meaning of Section 2(2) of the Act. -
United Cement Lime and Gypsum Workers International Union, AFL-
CIO, and its Local Union No. 445, 173 NLRB No. 214.
11 See, e.g., Reinforcing Iron Workers, Local Union No. 426 (Great Lakes
Contracting of Detroit, Inc.), 180 NLRB No. 124.
STE. GENEVIEVE LOCAL 169 , CERAMIC WRKRS.
3. By refusing and continuing to refuse to sign the written
contracts submitted by the Company for their signatures on
August 10 and 12 , 1970, Respondents have engaged and are
engaging in unfair labor practices within the meaning of Sec-
tion 8(b)(3) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within was meaning of Section
2(6) and (7) of the Act.
V. THE REMEDY
Having found that Respondents have engaged in certain
unfair labor practices , I will recommend that they cease and
desist therefrom and take certain affirmative action which
will effectuate the policies of the Act.
Upon the foregoing findings of fact, conclusions of law, and
the entire record , and pursuant to Section 10(c) of the Act,
I hereby issue the following recommended:"
ORDER
Respondents , Ste. Genevieve Local 169 of the United Glass
and Ceramic Workers of North America, AFL-CIO-CLC,
United Glass and Ceramic Workers of North America,
AFL-CIO-CLC, Ste . Genevieve Quarry Workers, Local
829, and Laborers' International Union of North America,
AFL-CIO, their officers, agents, and representatives , shall:
1. Cease and desist from refusing , as the exclusive bargain-
ing representative of all the employees in the appropriate unit,
to bargain collectively with Mississippi Lime Company by
failing and refusing to sign the written contracts submitted to
them by said Company for their execution on August 10 and
12, 1970, or any other written contract embodying terms
upon which agreement had been reached.
2. Take the following affirmative action which is deemed
necessary to effectuate the policies of the Act.
(a) Bargain collectively with said Company , as the exclu-
sive bargaining representative of the employees in the appro-
priate unit, by signing the written contracts submitted to
them by said Company for their execution on August 10 and
12, 1970.
(b) Post at their offices and meeting halls in Ste . Genevieve,
Missouri and vicinity , copies of the appropriate attached no-
tice marked "Appendix."" Copies of said notice , on forms
provided by the Regional Director for Region 14 (St . Louis,
Missouri), after being duly signed by Respondents ' author-
ized representatives , shall be posted by them immediately
upon receipt thereof, and be maintained by them for 60 con-
secutive days thereafter, in conspicuous places , including all
places where notices to members are customarily posted.
Reasonable steps shall be taken by Respondents to insure that
said notices are not altered , defaced, or covered by any other
material.
(c) Mail to the Regional Director for Region 14, signed
copies of the aforementioned notice for posting by Mississippi
Lime Company , the latter willing, in places where notices to
its employees are customarily posted. Copies of said notice to
be furnished by the Regional Director for Region 14 shall,
" In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations , and recommended Order herein
shall , as provided in Section 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
is 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."
665
after signature by Respondents as indicated, be forthwith
returned to the Regional Director for such posting.
(d) Notify the Regional Director for Region 14, in writing,
within 20 days from the date of receipt of this Decision, what
steps have been taken to comply herewith."
" In the event that this Recommended Order is adopted by the Board
after exceptions have been filed, notify said Regional Director , in writing,
within 20 days from the date of this Order, what steps Respondents have
taken to comply herewith
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse, as the exclusive bargaining rep-
resentative of all the employees in the appropriate unit,
to bargain collectively with Mississippi Lime Company
by failing and refusing to sign the written contracts sub-
mitted to us by the Company for our execution on Au-
gust 10 and 12 , 1970, or any other written contract
embodying terms upon which we have reached agree-
ment.
WE WILL bargain collectively with the Company, as
the exclusive bargaining representative of the employees
in the appropriate unit , by signing the written contracts
submitted to us for our execution on August 10 and 12,
1970.
STE. GENEVIEVE
LOCAL 169
OF THE
UNITED GLASS
AND CERAMIC
WORKERS
OF NORTH AMERICA,
AFL-CIO-CLC
(Labor Organization)
Dated By
(Representative) (Title)
UNITED GLASS
AND CERAMIC WORKERS
OF NORTH AMERICA,
AFL-CIO-CLC
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by any-
one.
This Notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced, or
covered by any other material.
Any questions concerning this notice or compliance with
its provisions , may be directed to the Board 's Office, 210
North 12th Boulevard, Room 448 , St. Louis, Missouri 63101,
Telephone 314-622-4174.
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX Dated By
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse , as the exclusive bargaining rep-
resentative of all the employees in the appropriate unit,
to bargain collectively with Mississippi Lime Company
by failing and refusing to sign the written contracts sub-
mitted to us by the Company for our execution on Au-
gust 10 and 12, 1970 , or any other written contract
embodying terms upon which we have reached agree-
ment.
WE WILL bargain collectively with the Company, as
the exclusive bargaining representative of the employees
in the appropriate unit , by signing the written contracts
submitted to us for our execution on August 10 and 12,
1970.
STE. GENEVIEVE
QUARRY WORKERS
LOCAL 829
(Labor Organization)
Dated By
(Representative) (Title)
LABORERS'
INTERNATIONAL
UNION
OF NORTH
AMERICA, AFL-CIO
(Labor Organization)
(Representative) (Title)
This is an official notice and must not be defaced by any-
one.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced, or
covered by any other material.
Any questions concerning this notice or compliance with
its provisions , may be directed to the Board 's Office, 210
North 12th Boulevard , Room 448 , St. Louis, Missouri 63101,
Telephone 314-622-4174.