W. S. Patterson Co.

National Labor Relations Board - Board Decisions

Oct 8, 1975

220 N.L.R.B. 1144 (N.L.R.B. 1975)

1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
W. S. Patterson Company and General Drivers and
Dairy Employees Union Local No. 563, affiliated
with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca. Case 30-CA-2942
October 8, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND PENELLO
On April 14, 1975, Administrative Law Judge Ben-
jamin K. Blackburn issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Respon-
dent filed a brief in support of the Administrative
Law Judge's Decision.
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
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The Employer is engaged in the wholesale distribu-
tion of industrial plumbing and heating supplies in
Wisconsin. The union was certified in December
1973 and bargaining began in January 1974.' At the
initial session the Union presented a contract propos-
al that included, inter alia, a standard union-security
clause requiring all employees, not already members,
to join the Union after 30 days. Thereafter, on Feb-
ruary 13, a majority of the unit employees voted in
favor of an "all-union" agreement in a referendum
conducted by the Wisconsin State Employment Re-
lations Commission. On June 25, Respondent pre-
sented its counterproposals, which included a pro-
posed maintenance-of-membership clause. In May, a
Federal mediator was called in and informed that
union security was one of the unresolved issues be-
tween the parties 2
On July 2, apparently at the urging of the media-
tor, Krasniewski, the union negotiator, informed the
Company that the Union would secure new authori-
zation cards. The Company's representatives con-
1 All dates are 1974, unless otherwise noted.
2 The Respondent asserted that during negotiations it maintained that it
wanted updated authorization cards and also wanted to make sure that
employees understood that they could refuse to join the Union and still
keep their jobs . The Union consistently took the position that it had already
won two elections and would not get new cards
cede that Krasniewski made no commitment to tell
unit employees that they could refuse to sign cards
yet retain their jobs. Nor did the company represen-
tatives, after Krasniewski agreed to obtain the cards,
request that the Union undertake to convey this mes-
sage.
On July 10, Krasniewski called a meeting of the
employees, placed blank authorization cards on a ta-
ble, and stated that if the men still wanted to be rep-
resented by the Union they should sign "and if you
don't want to, you don't have to . . . sign the card."
After Krasniewski left the room all 11 unit employ-
ees present executed new authorization cards.'
When negotiations resumed on July 22, Krasniew-
ski presented the new cards to Respondent. It is un-
controverted that Respondent accepted the cards
and that nothing was said or asked concerning what
transpired at the meeting at which the new cards
were signed. Thereafter, the parties agreed to a main-
tenance-of-membership clause and final oral agree-
ment on all disputed matters was reached in early
October.
At a meeting between the parties on November 15,
Respondent accused Krasniewski of not keeping a
"commitment" to tell employees that they did not
have to join the Union to keep their jobs. Krasniew-
ski responded by pointing out that he had done ex-
actly what he said he would do and by charging Re-
spondent with trying to interfere in the Union's
internal affairs. The parties have not met since No-
vember 15, the contract has not been reduced to writ-
ing, and Respondent has failed to put into effect the
new wage rates or to make the retroactive payments
to employees as it had previously agreed to do.
In dismissing 8(a)(5) and (1) charges alleging that
Respondent had reopened matters previously agreed
upon and had insisted upon becoming involved in
the Union's internal affairs as a condition of reach-
ing an agreement , the Administrative Law Judge
concluded that Respondent's offer of a maintenance-
of-membership clause was conditioned upon Kras-
niewski explaining to employees that failure to join
the Union would not jeopardize their jobs. The Ad-
ministrative Law Judge also concluded that such a
condition or precondition to agreement on a contract
does not constitute interference with internal union
matters.
On the basis of the evidence and the circumstances
here, we find that the Administrative Law Judge er-
red in concluding that the Union made any "commit-
ment" beyond its agreement to obtain new cards. It
is an elementary principle of law that the subjective
and unspoken "understanding" of one party cannot
J There are approximately 14 employees in the unit.
220 NLRB No. 171
W. S. PATTERSON COMPANY 1145
by itself bind a second party.4 Indeed any other rule
or result would make a shambles of the bargaining
process. Here the Union agreed to obtain new cards
and, in fact, obtained the cards. Whatever
Respondent's "understanding" or "assumptions"
concerning matters that were not agreed to, this was
the full extent of the Union's commitment as com-
municated to the Respondent's representatives.' And
in any event we would find that an employer who
sought to precondition bargaining upon terms similar
to those which this Respondent claims it demanded
was acting unlawfully. An employer is obligated to
bargain with the majority representative of his em-
ployees. Where, as here , a union has won an election
to prove its status , an employer cannot relieve him-
self of his obligation to bargain by seeking to force
the union to prove its status yet another time.
Accordingly, we find that the Respondent has,
since November 15, 1974, and at all times thereafter,
refused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit, as certified by the Board on Decem-
ber 18, 1973, and that, by such refusal, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) and (1) of
the Act.
The Remedy
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(5) and (1) of the Act, we shall
order that it cease and desist therefrom, and, upon
request, bargain collectively with the Union as the
exclusive representative of all employees in the ap-
propriate unit , and, if an understanding is reached,
embody such understanding in a signed agreement.
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. W. S. Patterson Company is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. General Drivers and Dairy Employees Union
Local No. 563, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America is a labor organization
within the meaning of Section 2(5) of the Act.
3. Since December 18, 1973, the above-named la-
bor organization has been and now is certified as the
exclusive representative of all employees in the ap-
propriate unit described below for the purpose of col-
lective bargaining within the meaning of Section 9(a)
of the Act.
'4. By refusing on or about November 15, 1974,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the ex-
clusive bargaining representative of all the employees
of Respondent in the appropriate unit, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) of the Act.
5. By the aforesaid refusal to bargain, Respondent
has interfered with, restrained, and coerced, and is
interfering with, restraining, and coercing, employees
in the exercise of the rights guaranteed to them in
Section 7 of the Act, and thereby-has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(1) of the Act.
6. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
4 See Houchens Market of Elizabethtown, Inc., 155 NLRB 729, 733-734
(1965).
s Thus, even under the dissent's view of this case , the Union met the
Respondent's condition of obtaining new authorization cards for the pur-
pose of ascertaining whether the employees wanted a union-security provi-
sion in any agreement negotiated (even though they recently had so indi-
cated in a state board conducted election ). Furthermore, Krasniewski's
statement to the employees that if they did not want the Union they did not
have to sign new cards was , in our view, broad enough to convey to them
the message that their jobs would not be in jeopardy if they chose that
course-thus satisfying any other so-called condition precedent that the
Respondent may have intended to set. In addition , Respondent failed to
raise the question of union assurances to employees either at the time the
Union committed itself to obtain new cards or thereafter when the Union
presented the cards.
But more important , and decisive, is the fact that what our colleague
describes as "Respondent 's consistent position that cards would be satisfac-
tory evidence of employee desire for union security only if the signers were
assured they did not have to sign to keep their jobs" cannot furnish any
basis for an "inference" that the Union committed itself to any such "posi-
tion." The Union here was entitled to reject in its entirety any proposal that
it obtain new cards from the employees , with or without "assurances" or
comments . What the Union did fulfilled any committment it expressed to
the Respondent . Whatever different "position" Respondent was asserting
can impose no different obligation on the Union
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,
W. S. Patterson Company, Appleton, Wisconsin, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours and other terms and condi-
tions of employment, with General Drivers and
Dairy Employees Union Local No. 563, affiliated
with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
as the exclusive bargaining representative of its em-
ployees in the following appropriate unit:
All truckdrivers, warehousemen, and count-
ermen employed at the Employer's Appleton,
1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wisconsin, facility, excluding office clerical em-
ployees, sales employees, professional employ-
ees, managerial employees, guards, and supervi-
sors as defined in the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative of
all employees in the aforesaid appropriate unit with
respect to rates of pay, wages, hours, and other terms
and conditions of employment, and, if an under-
standing is reached, embody such understanding in a
signed agreement.
(b) Post at its Appleton, Wisconsin, facility copies
of the attached notice marked "Appendix." 6 Copies
of said notice, on forms provided by the Regional
Director for Region 30, after being duly signed by
Respondent's representative, shall be posted by Re-
spondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for Region 30, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
MEMBER PENELLO, dissenting:
For the reasons set forth by the Administrative
Law Judge, I would adopt his Decision and dismiss
the complaint in its entirety.
I thought it was not disputed that the discussion of
authorization cards between Respondent and the
Union was in the context of bargaining over a union-
security provision. The only purpose for which Re-
spondent suggested new cards was to ascertain
whether the employees wanted a union-security
agreement . Respondent did not seek to test the
Union's majority status.
The majority would have the shoe on the other
foot. In the absence of an express commitment by the
Union to obtain the assurance, the majority assumes
that Respondent agreed to accept less. Of course the
Union was entitled to reject Respondent's condition
entirely, just as Respondent would have been entitled
to reject entirely the proposal for a union-security
provision. The Union did not reject Respondent's
condition, however. If a dispute remains over how
much of Respondent's condition the Union under-
took to perform, the most that can be said is that
there was no meeting of the minds on this point. Ab-
sent proof that Respondent understood the Union to
have undertaken the providing of new cards without
the assurance, Respondent can hardly be held to
have waived or abandoned its position.
Neither do I see the relevance of the statement by
the Union's representatives to the employees that
they should sign the cards if they still wanted to be
represented by the Union but to leave if they did not.
I cannot see how that is the equivalent of assuring
the employees that they need not authorize or join
the Union in order to keep their jobs. In fact, the
employees themselves did not understand it that way.
It was because of this limited purpose, and
Respondent's consistent position that cards would be
satisfactory evidence of employee desire for union
security only if the signers were assured they did not
have to sign to keep their jobs, that the Administra-
tive Law Judge reasonably inferred that both parties
knew such an assurance was a condition precedent to
Respondent's agreeing to any union-security ar-
rangement. So conditioning agreement on a specific
subject can hardly constitute, in itself, refusal to bar-
gain.
When Respondent learned that the Union had not
complied with this condition and that in fact employ-
ees had the erroneous impression that they had to
join the Union to keep their jobs, it confronted the
Union's representative with the fact. He denied he
had made such a commitment, accused Respondent
of meddling in the Union's internal affairs, and
walked out of the meeting. That is where matters
stood when bargaining ceased. I agree with the Ad-
ministrative Law Judge that at that point Respon-
dent had no further affirmative duty.
6 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Gen-
eral Drivers and Dairy Employees Union Local
No. 563, affiliated with the International Broth-
erhood of Teamsters, Chauffeurs, Warehouse-
W. S. PATTERSON COMPANY
men and Helpers of America, as the exclusive
representative of the employees in the bargain-
ing unit described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL, upon request, bargain with the
above-named Union, as the exclusive represen-
tative of all employees in the bargaining unit de-
scribed below, with respect to rates of pay, wag-
es, hours, and other terms and conditions of
employment, and, if an understanding is
reached, embody such understanding in a signed
agreement . The bargaining unit is:
All truckdrivers, warehousemen , and count-
ermen employed at the Employer's Appleton,
Wisconsin, facility, excluding office clerical
employees , sales employees, professional em-
ployees, managerial employees, guards, and
supervisors as defined in the Act.
W. S. PATTERSON COMPANY
DECISION
STATEMENT OF THE CASE
BENJAMIN K. BLACKBURN , Administrative Law Judge: The
charge was filed on December 2, 1974.1 The complaint was
issued on December 31. The hearing was held in Appleton,
Wisconsin , on February 11, 1975. The issue litigated was
whether Respondent violated Section 8(a)(5) and (1) of the
National Labor Relations Act, as amended, by reopening
an agreement to enter into a maintenance-of-membership
clause during contract negotiations with the Charging Par-
ty. I find that it did not because , for the reasons set forth
below, agreement was never reached in the first place.
Upon the entire record, including my observation of the
demeanor of the witnesses , and after due consideration of
briefs, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent , a Wisconsin corporation , is engaged in the
wholesale distribution of industrial plumbing and heating
supplies in Appleton, Wisconsin. During the year just prior
to issuance of the complaint herein, it purchased and re-
ceived goods and material valued in excess of $50,000
which originated outside the State of Wisconsin.
Dates are 1974 unless otherwise indicated.
II. THE UNFAIR LABOR PRACTICES
A. Facts
1147
The Charging Party was certified as the collective-bar-
gaining representative of a unit of Respondent's truekdriv-
ers, warehousemen, and countermen on December 18,
1973. Bargaining began on January 10, when the Charging
Party presented its initial contract proposal. It contained
the standard union-security clause under which all employ-
ees who are not already members are required to join the
union after 30 days. On February 13 a referendum was
held pursuant to state law by the Wisconsin Employment
Relations Commission in which nine unit employees fa-
vored the making of an all-union agreement, three voted
no, and two cast challenged ballots. On June 25 Respon-
dent presented its counterproposals, including a union-se-
curity clause which provided for maintenance of member-
ship, i.e., all employees who were members of the Charging
Party when the contract was executed and all persons sub-
sequently hired would be required to belong as a condition
of employment but all present employees who chose to
remain out of the Union were free to do so. Throughout
the negotiations the Charging Party was represented by
Frank Krasniewski, a business representative, and James
Arft, an employee who had been elected steward. Respon-
dent was represented by Harley Barney, its president-trea-
surer, and Patrick Coughlin, its attorney. Union security
was discussed on a number of occasions in the negotiating
sessions held between January 10 and June 25. Respondent
consistently took the position that it would not force its
present employees into the Union against their will and it
would not consider authorization cards which the Charging
Party already had in its possession as a manifestation of
their will because it wanted to be sure the employees un-
derstood they could refuse to join the Union and still keep
their jobs. The Charging Party consistently took the posi-
tion that it had already won two elections and would not
get new cards from the employees. A Federal mediator was
called in beginning with the meeting held on May 2. He
was informed that union security was one of the open is-
sues between the Charging Party and Respondent at that
time. He participated in the meetings held thereafter on
May 9, June 11, and June 25 at which the parties continued
to argue their respective positions.
The debate was resumed at the July 2 meeting. Finally,
out of earshot of Respondent's negotiators, in Kras-
niewski's words,
... and the mediator came out or the commissioner
came out and said, look, if you've got the guys on your
side, the company wants new cards signed; and if the
people are with you, get the cards. If they're not with
you, what the heck are you doing sitting here at the
table? So, Jim Arft and I had a little caucus with our-
selves-
Q. What did you discuss then?
A. We said: What do you think? Do you think the
people will be with us or not, and he said go ahead,
and we can maybe get the thing off the table.
Krasniewski and Arft returned to the bargaining table.
1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Krasniewski told Barney and Coughlin that he would take
care of getting new authorization cards. Since they had
continued to argue at this meeting that it must be made
perfectly clear to the employees that they did not have to
sign new authorization cards in order to continue working
for Respondent, Barney and Coughlin understood that
Krasniewski's capitulation included a commitment to con-
vey this message to the men when he asked them to sign up
again . However, Krasniewski did not explicitly make any
such statement . In Barney's words:
Q. What did Mr. Krasniewski tell you that he was
going to tell the employees?
A. He didn't tell me except that he was going to
take care of it, and I don't know what it means.
Q. Isn't it true that Mr. Krasniewski said that he
would tell the employees that if they didn't want to be
represented by the union, they didn't have to sign the
card and he would just leave?
A. No, he didn't say that to the best of my knowl-
edge and recollection. What he said, and what I be-
lieve I heard was that he didn't want to represent the
union employees if they didn't want him and a few
adjectives thrown in.
Krasniewski called a meeting of Respondent's employ-
ees on July 10. Eleven attended. Krasniewski placed blank
authorization cards on a table. He told the men to sign
them if they still wanted to be represented by the Charging
Party, to leave if they did not. He then left the room. All II
employees executed new authorization cards and returned
them to Krasniewski. Krasniewski did not tell them that
they would continue to work for Respondent if they did
not sign the new cards. The men discussed the significance
of what they had done after the meeting. They concluded,
erroneously, that other employees who had not been pre-
sent and who persisted in their refusal to join the Union
would lose their jobs when Respondent and the Charging
Party entered into a contract.
Negotiations resumed on July 22. Krasniewski gave his
11 new cards to Barney and Coughlin. Krasniewski said
nothing about what had happened when he met with the
employees on July 10. Barney and Coughlin assumed with-
out asking that he had made it clear to the men that the
new cards were not the price of their jobs. Respondent and
the Charging Party agreed to include a maintenance of
membership clause in their contract. Final agreement was
reached three negotiating sessions later on October 4. Em-
ployees ratified the contract at a meeting held on October
23 by a vote of six to three.
Sometime after the negotiating session of October 4 and
before the ratification meeting of October 23, Gary Ver
Voort, one of the employees who had signed a new card,
told David Nygaard, one of the employees who had stayed
away from the July 10 meeting, that he would lose his job
if he did not join the union. Nygaard told Barney what Ver
Voort had said. On October 23 John Zdrazil, another of
the employees who had signed a new card on July 10, told
Krasniewski he wanted to withdraw from the Union be-
cause Krasniewski had negotiated such a lousy contract.
Krasniewski told Zdrazil he could not withdraw. Zdrazil
subsequently spoke to Barney. He told Barney he was
planning to quit his job. He said he did not want to be in
the Union because the employees were getting so little out
of it. Respondent, in the person of Barney, thus learned for
the first time after final agreement on a contract on Octo-
ber 4 that Krasniewski had not explained to the employees
that they did not have to join the Charging Party to keep
their jobs before getting them to sign new authorization
cards and that July 10 signers regretted what they had
done?
Shortly after October 23 an employee named Allard told
Krasniewski that Barney had said Allard was not going to
get the pay rate called for in the contract. Krasniewski
called Coughlin and told him there were problems among
Respondent's employees which had to be straightened out.
They arranged a meeting. Krasniewski went to Coughlin's
office on November 15. The misunderstanding over rates
of pay as well as one or two other matters were quickly
cleared up. Barney and Coughlin then turned to the Ny-
gaard-Zdrazil problems. An argument ensued . Barney ac-
cused Krasniewski of not keeping his commitment to tell
the men that they did not have to join the Union to keep
their jobs. Krasniewski said that he had done exactly what
he said he would do, give the men an opportunity to indi-
cate again whether they wanted to be represented by the
Charging Party. Krasniewski accused Respondent of trying
to meddle in the Charging Party's internal affairs, got up
and stalked out. The parties have not met since . The con-
tract on the wording of which they have reached agreement
has not been reduced to writing. Respondent has not put
into effect the new wage rates or given unit employees the
retroactive pay of $100 per man it has agreed to.
B. Analysis and Conclusions
The complaint alleges that Respondent has refused to
bargain with the Charging Party since July 2 by:
(a) Reopening matters previously agreed upon in collec-
tive bargaining with the Union.
(b) Insisting upon becoming involved in the Union's in-
ternal affairs as a condition of reaching agreement.
At the hearing the General Counsel took the position
that the former occurred on November 15 when Respon-
dent "[r]ais[ed] the issue again of the student employees
and also on November 15th reopen[ed] the union security
matter and [went] into the assurances that Mr. Krasniewski
gave or did not give to employees at the July 10th meeting
when new cards were provided." He took the position that
the latter occurred on July 2 because of Respondent's "in-
sistence upon the union securing new cards and condition-
ing that on the agreement [on] union security."
Respondent has devoted part of its brief to "raising the
issue again of the student employees." However, the Gen-
eral Counsel's brief contains no mention of that subject,
being devoted entirely to the union security-new cards is-
2 On December 19 Richard Kennedy, an employee who had not signed an
authorization card for the Charging Party, filed an RD petition Nine of the
eleven employees who signed cards for Krasniewski on July 10 signed the
document which Kennedy proffered as his showing of interest. The Region-
al Director dismissed the petition on January 13, 1975 , on the ground that
the complaint had issued in this case I denied Kennedy's motion to inter-
vene at the hearing before me.
W. S. PATTERSON COMPANY
sue. Since the General Counsel has elected not to press a
contention that Respondent violated Section 8(a)(5) by its
positions and arguments on what provisions should be in-
cluded in the contract with respect to students hired to
work during summer vacations , I have made no findings
with respect thereto.
In his brief, the General Counsel views Respondent's ac-
tivities as the manifestation of a deep , dark plot to under-
mine the Charging Party, thus:
This case presents an employer bent on destroying
the Union as an effective collective -bargaining repre-
sentative of its employees . It's [sic] means were subtle,
but its success rests on the outcome of this case. Gen-
eral Counsel is quite sincere in its characterization of
the issue presented herein as a true test of this
country's fundamental public policy fostering and en-
couraging peaceful collective bargaining ; especially
appropriate for decision as the 40th anniversary of the
Act approaches.
r
General Counsel contends: (1) that the only condi-
tion precedent to agreement on union security was the
signing of new cards; (2) that Krasniewski fulfilled the
terms of that condition; and (3) assuming arguendo
Respondent's contention concerning the nature of the
condition to be true, it was inherently improper and
violative of the Act to renege on the agreement on
November 15 by seeking to involve itself in internal
union affairs.
11
The employees affirmed their support for a union
shop three times [i.e., when they originally signed au-
thorization cards for the Charging Party, when they
voted for an all union contract in the state referen-
dum, and when they signed new authorization cards
of July 10]. Respondent's constant interjection of its
concern for employee wishes must be seen for what it
is: A subtle attempt to undermine the authority of its
employees ' duly constituted bargaining agent.
The General Counsel cites N.L.R.B. v. Gissel Packing
Co., 395 U.S. 575 (1969), for the propositions that authori-
zation cards can adequately reflect employee sentiment
and that employees should be bound by the clear language
of the cards they sign absent evidence that the person who
solicited their signatures explicitly negated it. He cites the
Borg Warner line of cases (N.L.R.B. v. Wooster Division of
Borg Warner, 356 U.S. 342 (1958)) for the proposition that
a union 's communications with its members , for example,
ratification of contracts , are only permissive bargaining
subjects because they relate to internal union affairs. The
law is as stated by the General Counsel. Unfortunately,
none of these propositions has anything to do with the
issue in this case.
The only case cited by the General Counsel which is
even remotely apposite is American Seating Company of
Mississippi, 176 NLRB 850 (1969), enfd. 424 F.2d 106 (C.A.
1149
5, 1970). There, the Board found overall bad faith bargain-
ing where
... after some 5 months of bargaining, Respondent's
counsel conditioned its making a firm offer on the
Union committee's submission of the offer to the full
membership; questioned how many employees were
present at the union meeting on March 13 where the
employees voted to accept the offer of February 12;
asked the Federal mediator to ascertain whether the
union bargaining committee had the authority it
claimed; stated that he did not believe the union com-
mittee had the authority to sign the agreement; pro-
posed a poll of employees to ascertain their wishes as
to lunch period and breaks, a proposal then under dis-
cussion. By Respondent's continued insistence on sub-
mitting changes in contract proposals to a referendum
of employees, it was subverting the authority and sta-
tus of the bargaining representative and intruding into
the internal affairs of the Union and its relationship to
its members. [Citing Borg Warner, supra, and North
Country Motors, Ltd., 146 NLRB 671 (1964).]
The employer also, at the same negotiating session, with-
drew its proposals relating to insurance benefits and to
lunch period and breaks. The General Counsel argues:
In that Respondent herein is merely seeking to use the
device of another card check to check employee senti-
ment after presenting its phoney condition precedent
story, the analogy to American Seating, supra , becomes
clear. What is the card check but Respondent's at-
tempt to undermine union support among employees
suffering after 11 months of bargaining, the ratifica-
tion of an amorphous contract whose terms were ques-
tionable to at least some employees, and whatever
other frustrations they felt leading to the Motion for
Intervention herein signed by 12 employees (ALJ
Exh. 1).
Respondent's contentions concerning the alleged
condition precedent, whether found for or against
General Counsel, become immaterial when faced with
its use as a tool to avoid reaching agreement. Adminis-
trative Law Judge Fannie Boyle's analysis found in
the Intermediate Report in American Seating, supra,
and adopted by the Board at page 856 is instructive in
this regard:
It is no defense to Respondent's unlawful intrusion
into the Union's internal affairs that the Union
upon occasions gave in to Respondent's demands
and did submit the proposals to a vote of the union
members. . . . Respondent's insistence upon this
procedure unquestionably frustrated and prolonged
the bargaining negotiations.
The General Counsel's reliance on American Seating is
also misplaced. Here, Respondent never withdrew a bar-
gaining proposal made by it, and there was nothing phoney
about the condition precedent it attached to its offer of a
maintenance-of-membership clause as a compromise be-
tween the Charging Party's demand for full union security
and Respondent's reluctance to force any of its present
employees to join against their will. Barney and Coughlin
made their position perfectly clear to Krasniewski on June
1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
25 and again on July 2 when they coupled Respondent's
maintenance of membership offer to the signing of new
cards after Krasniewski explained to the employees that
failing to sign would not jeopardize their jobs . Krasniewski
undertook to get new cards with full knowledge of the
terms of Respondent 's offer . He deliberately failed to meet
the condition precedent , thus creating the misunderstand-
ing which led to the Nygaard incident. Nor can it be said
that what happened after Krasniewski misled the employ-
ees on July 10 "unquestionably frustrated and prolonged
the bargaining negotiations ." Barney and Coughlin had no
reason to quiz Krasniewski on July 22 about what he had
said to the employees when he got the new cards . In fact,
they showed a nice regard for the proposition that employ-
ers are forbidden to meddle in the internal affairs of their
employees ' unions on this as well as other occasions. For
example , they first asked for a chance to explain mainte-
nance of membership to the employees jointly with Kras-
niewski and then agreed with Krasniewski 's argument that
they had no right to do so. Nor are Barney and Coughlin
responsible for delay after October 4 if, indeed , there has
been any delay . They only became aware after that date
that their condition precedent for agreeing to a mainte-
nance-of-membership clause had not been met. Their fail-
ure to find out earlier was no fault of theirs , for they as-
sumed that Krasniewski had dealt with them in good faith.
Finally, they cannot be charged with the time which had
elapsed since November 15 because Krasniewski terminat-
ed that meeting before they said Respondent would not
sign a contract containing the language with respect to
maintenance of membership they had agreed to on July 22.
That, of course, was the direction in which the discussion
was leading when Krasniewski stalked out, but failure to
hold any meetings since that date in an effort to resolve the
union-security dispute is Krasniewski 's fault and not
Barney's and Coughlin's.
Respondent did not reopen "matters previously agreed
upon in collective bargaining ." Its offer to include a main-
tenance-of-membership clause in a contract with the
Charging Party was based on a valid condition precedent.
The Charging Party failed to meet that condition. There-
fore , no agreement was ever reached for Respondent to
reopen . By the same token , Respondent did not insist
"upon becoming involved in the Union 's internal affairs as
a condition of reaching agreement" because its concern
that its employees understand the import of authorization
cards they signed in light of the clause it was offering was
an integral part of that offer . I find, therefore , that Respon-
dent has not violated Section 8(a)(5) and (1) of the Act.
Upon the foregoing findings of fact , and upon the entire
record in this case , I make the following:
CONCLUSIONS OF LAW
1. W. S. Patterson Company is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. General Drivers and Dairy Employees Union Local
No. 563, affiliated with the International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Helpers of
America is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. The allegations of the complaint that Respondent vio-
lated Section 8(a)(5) and ( 1) of the Act by reopening mat-
ters previously agreed upon in collective bargaining and by
insisting upon becoming involved in the Charging Party's
internal affairs have not been sustained.
Upon the basis of the foregoing findings of fact , conclu-
sions of law , and the entire record in this proceeding, and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDERS
The complaint is dismissed in its entirety.
3 In the event no exceptions are filed as provided by Sec. 102 .46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
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.