Cooke & Jones, Inc.

National Labor Relations Board - Board Decisions

May 15, 1964

146 N.L.R.B. 1664 (N.L.R.B. 1964)

1664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
extent that such right may be affected by an agreement requiring membership in
a labor organization as a condition of employment , as authorized in Section
8 (a) (3) of the Act.
IRL N . WAGNER D/BMA WAGNER 'S FOOD MART,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of post-
ing, and must not be altered , defaced , or covered by any other material.
Employees may communicate with the Board 's Regional Office , 327 Logan Build-
ing, Fifth and Union Streets, Seattle, Washington , Telephone No. Mutual 2-3300,
Extension 553, if they have any questions concerning this notice or compliance with
its provisions.
Cooke & Jones, Inc. and Local No. 549, United Brotherhood of
Carpenters and Joiners , AFL-CIO. Cases Nos. 1-CA-3906 and
1-CA-4178. May 15, .196/.
DECISION AND ORDER
On January 31, 1964, Trial Examiner James T. Barker issued his
Decision in the above-entitled proceeding, finding that, the Respond-
ent had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Decision. Thereafter,
the Respondent filed exceptions to the Decision and a supporting brief,
and the General Counsel filed it brief in support of the Decision.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Chairman McCulloch and Mem-
bers Leedom and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision,' the Respondent's exceptions and briefs, and
the entire record in these cases, and hereby adopts the findings, con-
clusions,2 and recommendations of the Trial Examiner.
'We hereby correct the following inadvertent errors in the Trial Examiner ' s Decision:
In section III, C , 1, the second sentence should state that the membership of the Associa-
tion also included other building trades firms.
2The Trial Examiner 's conclusion that Respondent violated Section 8(d), and thus Sec-
tion 8 ( a) (5), by entering into the individual arrangements of October 31, 1962 , without
following the procedure prescribed by Section 8(d), is adopted in the absence of exceptions.
The Trial Examiner 's conclusion that the Union and the Association members, including
the Respondent , did not become contractually bound until a majority of the members
executed the collective-bargaining agreement is not adopted . We find instead that a bind-
ing agreement , giving rise to an obligation to sign the written contract , was reached
when the Union communicated to the Association its intention to withdraw its insistence
upon the picketing clause, the sole remaining unresolved issue . Knowledge of this change
of position was conveyed to the Association by the Union 's presentation of the printed
contracts, omitting its previously proposed picketing clause, to the five Association
members.
146 NLRB No. 192.
COOKE & JONES, INC.
ORDEI.,.
1665
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order, the Order recommended by the Trial Examiner, and orders that
Respondent, its officers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed in Case No. 1-CA-3906, on August 28, 1962 , and a charge
filed in Case No. 1-CA-4178, on May 10, 1963, by Local No. 549, United Brother-
hood of Carpenters and Joiners , AFL-CIO, hereinafter called the Union , the Regional
Director of the National Labor Relations Board , for the First Region , on July
26, 1963, issued an order consolidating cases, complaint , and notice of hearing,
designating Cooke & Jones, Inc., as Respondent , and alleging violations of Section
8(a) (1) and ( 5) of the National Labor Relations Act, as amended , hereinafter called
the Act. In its duly filed answer , Respondent admitted certain allegations of the
complaint, but denied the commission of any unfair labor practices..
Pursuant to notice, a hearing was held before Trial Examiner James T. Barker
at Greenfield , Massachusetts , on October 8 and 9, 1963. All parties were represented
at the hearing and were afforded full opportunity to be heard , to introduce relevant
evidence , to present oral argument , and to file briefs with me. The General Counsel
and Respondent filed briefs on November 19, 1963.
Upon consideration of the entire record and the briefs of the parties, and upon
my observation of the witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
. Respondent is, and has been at all times material herein, a Massachusetts corpora-
tion maintaining its office and place of business in Greenfield, Massachusetts, where
it is engaged in the business of general building contracting.
During the 12-month period immediately preceding the issuance of the complaint
herein, Respondent in the course and conduct of its business operations purchased,
transferred, and delivered to its Greenfield, Massachusetts, place of business stone,
cement, wood, building materials, and related items valued in excess of $50,000,
which goods and materials were transported to said place of business from, and
received from, other enterprises located in the Commonwealth of Massachusetts,
which other enterprises had received the said goods and materials directly from
States other than Massachusetts.
Upon these admitted facts, and the stipulation of the parties, I find that Respondent
is engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
The Northern New England Building Trades Association, Inc., hereinafter called
the Association, is, and at all times material herein has been, an association of em-
ployers that exists and has existed for the purpose, inter alia , of representing its
employer-members in multiemployer collective bargaining with the Union.
At all times material herein, the Association has maintained its principal place
of business at various locations in and near Greenfield,. Massachusetts, where its
members are engaged in general building contracting.
During the calendar year immediately preceding the issuance of the complaint
herein, the Association, in the course and conduct of its business operations, pur-
chased, transferred, and delivered to its Greenfield, Massachusetts, place of business
wood, building material, and related items valued in excess of $50,000, which
goods and materials are used by it in its general building contracting business and
which were transported to its Greenfield, Massachusetts, place of business from,
and received from, other enterprises located in the Commonwealth of Massachusetts,
which other enterprises did receive said goods and materials directly from States
other than Massachusetts.
Upon these admitted facts I find that the Association is and has been at all times
material herein. engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
1666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
Local No. 549, United Brotherhood of Carpenters and Joiners, AFL-CIO, is a
labor organization which exists for the purpose, inter alia, of dealing with employers
concerning wages and conditions of work and is a labor organization within the
meaning of Section 2(5) of the Act.'
III. THE UNFAIR PRACTICES
A. Contentions of the parties
The complaint alleges that at all times material since March 1 , 1962 , the Union
has been the representative of employees in an appropriate multiemployer bargain-
ing unit to which Respondent at all times material belonged and which included
employees of Respondent ; that since on or about March 1, 1962 , the Union has
bargained collectively with the Association with respect to rates of pay, wages,
hours of employment , and other conditions of employment as the exclusive repre-
sentative of all of the employees in multiemployer bargaining unit aforesaid; that
commencing on or about May 21 , 1962, and at all times thereafter Respondent
refused to bargain with the Union as the exclusive collective -bargaining representa-
tive of its employees in said unit and that on or about May 21, 1962, and continu-
ing until on or about October 18, 1962, the Respondent refused to execute a written
agreement embodying rates of pay, wages, hours of employment , and other terms and
conditions of employment , agreed upon between the Association and the Union; and
commencing in the month of May 1962, and at times thereafter , Respondent bargained
directly and individually with its employees and unilaterally changed existing wage
rates, hours of employment, and other terms and conditions of employment and uni-
laterally instituted a profit-sharing plan and stock subscription plan.
Denying the foregoing allegations of the complaint , the Respondent contends,
principally , that the unit in which the Union sought to bargain was an inappropriate
unit; that the employees with which it allegedly bargained individually and whose
wage rates, hours of employment, and terms and conditions of employment it
allegedly unilaterally changed were not employees but stockholder -members of man-
agement and supervisors within the meaning of the Act ; and that changes actually
affected with respect to these individuals were grounded solely upon economic con-
siderations and were not predicated upon union animus or discriminatory motivation.
B. Background
The Settlement Agreement
As set forth above , charges were filed in Case No. 1-CA-3906 on August 28,
1962, alleging , in part and in substance , that Respondent , a member of the Associa-
tion , had refused to execute the collective-bargaining agreement negotiated by the
Association with the Union , and had engaged in individual bargaining with its em-
ployees concerning conditions of their employment without consultation with the
Union.
Subsequently , on October 22, 1962 , the Regional Director approved an informal
settlement agreement executed on October 16 by representatives of Respondent and
the Charging Union ., By the terms of the settlement agreement , the Regional Di-
rector 's approval constituted a withdrawal of the complaint and notice of hearing
theretofore issued in Case No. 1-CA-3906. Respondent was required by the terms
of the settlement agreement to post a notice and to execute the collective -bargain-
ing agreement which ; as more fully discussed hereafter , had been executed by all
other employer-members of the Association . Moreover , under the terms of the settle-
ment agreement Respondent agreed to bargaining collectively with the Union as the
representative of its employees in an appropriate unit and to refrain from direct
bargaining with said employees.
Subsequently , on May 10, 1963, the Union filed charges in Case No . 1-CA-4178
alleging Respondent had, since January 1, 1963, bargained unilaterally with its em-
ployees without consulting with the Union. As a result of an investigation the
Regional Director set aside the October 22, 1962, settlement agreement, and on
July 26, 1963, issued the instant consolidated complaint encompassing the earlier
Case No. 1-CA-3906 as well as the later Case No . 1-CA-4178.
1 The foregoing is predicated upon the credited testimony of George Miner, and the
abundant evidence of record relating to the Union 's contractual relations and negotiations
with the Respondent and the Association.
COOKE & JONES, INC. 1667
Although evidence of Respondent's presettlement conduct was introduced by the
General Counsel without objection and although the briefs of the parties do not
raise the issue , I deem myself required under the Board's rule in Larrance Tank Corpo-
ration, 94 NLRB 352, to make a threshold determination with respect to the ques-
tion of whether Respondent's postsettlement conduct established that Respondent
failed to comply with the settlement agreement or engaged in independent unfair
labor practices after the settlement? I find that Respondent's conduct at the Octo-
ber 31, 1962, and January 31, 1963, meetings, as found below, violated the settle-
ment agreement when viewed in conjunction with findings hereinafter made that
six individuals with whom Respondent engaged in individual bargaining were
employees and not supervisors , and with the further finding that at all times
material the Union was the majority representative of Respondent's employees in an
appropriate unit.3 In the circumstances, on the basis of the Board's policy which
has court approval,4 it is proper to go behind the settlement agreement which had
been reached and to consider evidence of conduct both before and after the settle-
ment agreement. This I have done in arriving at the findings and conclusions here-
inafter made with respect to those issues and that evidence dealing with Respondent's
presettlement conduct.
C. Pertinent facts
1. The Association
The Association was incorporated in the fall of 1960.5 Its membership in the
spring of 1962 consisted of five firms, Respondent, Vincent & Williams, Inc., George
H. Reed & Co., Inc., W. W. Wyman, Inc., and Mowry and Schmidt.° With the ex-
cevtion of W. W. Wyman, Inc., each of the firms had in 1959 executed a collective-
bargaining agreement with the Union which by its terms was effective from June 29,
1959, until March 31, 1961, and in the absence of notification from year to year
thereafter. No notification having been given, the agreement renewed itself and,
accordingly, remained in effect until March 31, 1962. While Wyman did not execute
the 1959 agreement, it appears to have given effect to its terms.
2. The 1962 bargaining sessions
Negotiation-, for a collective-bargaining agreement to replace the 1959 agreement
commenced in March 1962. Each of the five firms that comprised the Association
membership designated representatives who participated in the• negotiations that fol-
lowed. Respondent was represented by its president, Sidney Yetter, who served
as recording secretary during the negotiations and attended each of the bargaining
sessions . Lane Construction Company and Langdon Construction Company, who
were not members of the Association but who employed carpenters in the jurisdic-
tion of the Union, participated in the negotiations as did representatives of employ-
ing master plumbers, painters, and electricians in the area? In all, eight meetings
were held, culminating in a May 21, 1962, meeting at the trailer-office of Phillip
In Larrance Tank the Board said:
It Is the Board's established practice not to consider as evidence of unfair labor
practices conduct of the Respondent antedating a settlement agreement, unless the
Respondent has failed to comply with the settlement agreement or has engaged In
independent unfair labor practices since the settlement. Moreover, in determining
whether such Independent unfair labor practices have occurred after the settlement,
the Board will not appraise a Respondent's postsettlement conduct in the light of its
conduct prior to the settlement.
3The Board's policy, as expressed in Larrance Tank, precludes only a consideration of
Respondent's conduct during the presettlement period and does not preclude, as here, a
consideration of evidence pertaining to the supervisory issue or of the issue of the Union's
majority status as bargaining representative during that period.
'The Wallace Corporation v. N.L.R.B., 323 U.S. 248, 253-255; The Canyon Corporation
v. N.L.R.B., 128 F. 2d 953, 956 (C.A. 8) ; International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, General Drivers and Helpers, Local No. 554,
AFL-CIO (Clark Bros. Transfer Co.) v. N.L.R.B., 262 F. 2d 456, 459-461 (C.A.D.C.),
enfg. as modified 116 NLRB 1891.
5 The credited testimony of Phillip Vincent and James Galipoult.
"The credited testimony of Phillip Vincent and James Galipoult.
4 The credited testimony of Phillip Vincent, James Galipoult, George Miner, and Sidney
Yetter.
1668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Vincent.8 During the 7 sessions preceding May 21, the designated bargaining repre-
sentatives of the Union,9 the Association, and the other participating employers had
confined their discussion to 16 points or proposals, adopting some, as first proposed
or as modified, but remaining adamant with respect to others. Wages and the split-
scale 10 remained in issue throughout until, on May 15, the parties met in a 6-hour
session at the Weldon Hotel and through negotiation and concession reached a point
where the Union and the employers, save for Respondent's President Yetter, were
in tentative agreement as to the terms of 15 of the 16 articles under consideration.
The parties were in disagreement on the terms of a picket clause. At the employer's,
suggestion, however, the Union agreed to submit the 16 articles, including the picket
clause, to a vote of its rank-and-file membership. However, Yetter registered his.
dissatisfaction with the offer being proposed saying, "This may be their [employer's]
offer, but it's certainly not a unanimous offer." In amplification of his position with
respect to the negotiations Yetter testified at the hearing as follows:
Q. It is true that you didn't intend to sign that contract that night of the
meeting at the Weldon Hotel that lasted until 2 a.m.?
A. I had it in mind, that's right.
Q. Did you have it in mind at Vincent's trailer?
A. I've always had it in mind.
Q. Since the beginning of the negotiations?
A. I've always descended [sic] to it.
Q. And you've always had it in mind that you would not sign the contract?
A. Yes sir.
Q. What were the reasons for your feeling or having in mind that you
would not sign the contract at the beginning of the negotiations?
A. Well, for several years now they've been going up in their wages and
our business has been going down proportionately, and I felt as though it was
wrong because I'd cut my own neck. I didn't feel it was right, but I• couldn't
pass it along to the negotiating people; they weren't interested. They're in-
terested in heavy stuff, and we're light people.
Q. You say they've been going up. You mean the union?
A. Wage rates, right. Their primary concern is the heavy construction..
They're not interested in the light construction people. This has been said time
and time again.
Q. Was this your attitude during the negotiations?
A. Yes, sir.
Q. And was this the same thing you had in mind when you refused to sign
the contract Mr. Muka brought to you?
A. That was one of the reasons.
Q. Were there any other reasons?
A. Possibly.
Q. Can you state all reasons?
A. Not at this time.
Two days later, on May 17, at to meeting of the union membership the proposal
consisting. of the 16 articles was submitted to a secret. vote of.the membership which
.voted to accept it.
The outcome of the vote was reported to. Sidney Yetter by then Union Vice
President Miner and George Hescock, a member of the union negotiating committee.
Yetter promised to inform the other employer-members of the Association concern-
ing the vote.
Thereafter, on May 21, a meeting was held by the parties at the field-office trailer
of Phillip Vincent. President Yetter was in attendance as were three other representa-
tives of the Association's members. To serve as a proposed draft, Union President
Miner submitted a copy of the 1959-61 agreement to which was attached, where
pertinent, draft language of terms tentatively agreed to by the parties at the May 15
meeting. Existing articles left unchanged were passed over without discussion, but
e In addition to the March 1 and May 21 meetings other bargaining sessions were held
on March 9, 14, and 21, April 4 and 30, and May 15.
The Union was represented by Its president, Angelo Bruno, Its business agent and
financial secretary, Muka, and a four-member negotiating committee, Including two In-
dividuals, Erwin Restock and Joseph Kallnowski, who were at the time in the employ of
Respondent.
10 The "split-scale"- Is the differential In wages paid on heavy as contrasted to light.
construction. A lower scale Is paid for work performed in light construction. The Union
wanted to eliminate the split-scale provision while the employers wanted to retain it.
COOKE & JONES,.INC. 1669
each new or modified article was read aloud. The parties agreed to a new wage scale
and to a compromise split-scale provision. Dissatisfaction was raised only to the
inclusion in article 10 of a provision relating to adequate coffeetime for carpentry
employees, and to the disputed picket clause in the same article. The provision with
respect to coffeetime was dropped. With respect to the picket clause, never a main
issue in the negotiations, President Yetter suggested that before he approved inclu-
sion of the clause it be referred to counsel for Langdon Construction Company, a
non-Association participant in the negotiations with the Union, for his approval.
Upon communication with Langdon counsel, Sidney Yetter was to inform the Union
of the employers' position with respect to the clause. Miner told Yetter that as soon
as he heard from Yetter with respect to the picket clause he would "go ahead and
have the new contracts printed up."
Subsequently, within a week or two, the Union was apprised of alternative picket
clause language drafted by the Langdon counsel which substantially modified the
terms proposed by the Union. By agreement inter se the union representatives
decided to drop the proposal and did not raise the issue with the employers.
Thereafter, President Miner caused the provisions agreed upon at the May 21
meeting or at previous meetings (including provisions by consent carried over from
the 1959-61 contract) to be embodied in an agreement which he had printed."
3. Execution of the agreement
a. By firms other than Respondent
Thereafter, in mid- or late July 1962, copies of the agreement which Union
Business Agent Muka had presented to them for signature were executed by rep-
resentatives of Mowry and Schmidt, Vincent & Williams, Inc., George H. Reed &
Co., Inc., and W. W. Wyman, Inc.12 Lane Construction Co., not an Association
member, returned an executed copy which had previously been mailed to it by Muka.
b. By Respondent
During the same period as he had done with other firms, Muka called upon Re-
spondent and left with President Yetter three copies of the agreement, including the
master copy. Yetter had first stated be would not sign, but, as Muka was departing,
Yetter suggested Muka leave a copy of the agreement. Muka answered, "I might
as well leave you two copies and if you decide to sign them, we'll pick them up
later."
A week or 10 days later, Muka conversed with Yetter at Yetter's office. Yetter
informed Muka that be was not going to sign the agreement. Muka observed that
Yetter was "a part of the group which had negotiated [the] agreement and [that]
the majority have [sic] already signed it." Yetter remained adamant, stating his
execution of the agreement was contingent upon the Union's agreeing to the exclusion
of certain carpenters from the contract's terms on the ground that, as hereinafter
considered, they had become part of management. Muka refused and Yetter did
not then sign the agreement.
4. The six thousand dollar package
a. The May 9 board meeting
Ian the meantime, on May 9, 1962, a special meeting of the stockholders and the
board of directors of Respondent was held. Present were Sidney Yetter, John Win-
seck, then the sole stockholders of Respondent, and Attorney Burton Winer. The
minutes of the special meeting reflect-the following:
The President announced that in his opinion, the financial security of this
Corporation and its general well-being, necessitated some new arrangements
with certain of its employees. In particular the President indicated that he felt
certain employees of the Corporation had such a vital interest in it, that their
status as mere employees is really inadequate and that they should have an owner-
ship interest in the Corporation. The President indicated that by ownership
"The foregoing is predicated upon the credited testimony of George Miner.
12 Muka credibly testified that after securing the signatures of union officials in early or
mid-July, he personally delivered copies to each of the five firms comprising the Associa-
tion and mailed copies to the Lane Construction ;Company. He returned to each firm a
week or 10 days later. Muka was present when 1he representatives of Mowry and Schmidt,
Vincent & Williams, Inc., and W. W. Wyman, Inc., signed the agreement.
1670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
interest he meant the ownership of actual stock in the Corporation and some
bonus plan by which these employees, along with the present stockholders,
could share the annual profits.
The President then indicated that another subject that required considera-
tion, was the delegation of duties of certain employees of the Corporation. He
reviewed some of the events of the past years when the work load was very
heavy and when he and Mr. Winseck, in an effort to keep many jobs going at
once, were forced to expend their time and energy in many useless ways. It was
indicated that as a general practice, every job has a job Co-ordinator but the
duties of these job Co-ordinators have never been clearly defined and therefore
a lengthy discussion followed concerning just what are the duties of Co-ordina-
tors the employee's superintendent and the Mill superintendent.
The foregoing with respect to benefits was put in the form of a motion, seconded,
and it was voted that certain employees (not then designated) would be offered by
Yetter, a salary of $6,000 per annum, 2 weeks' paid vacation, a $1,000 life insurance
policy, and a "satisfactory" Blue Cross-Blue Shield plan.13 It was further agreed
that the president would prepare a stock subscription, redemption, and bonus plan
for approval of the board of directors.14 Yetter testified that none of the foregoing
benefits had been the subject of collective bargaining between the Association and
the Union and he conceded that he did not at any time consult with the Union be-
fore offering and instituting them, as hereinafter found.
Additionally, at the special meeting it was also decided that the following em-
ployees would be assigned the job titles as shown: Joseph M. Kalinowski, general
superintendent of production employees; Richard D. Bridges, superintendent, mill
and yard; Elliot C. Allis, job coordinator; and Michael C. Schab, job coordinator.
The duties and authority of the incumbent of each of the positions was agreed
upon and specified in the minutes. Each was purportedly vested with oversight
and supervisory authority, as that latter term is defined in the Act.15
b. The package offered
Thereafter, during the days that followed President Yetter offered the six thou-
sand dollar package, so-called, to eight of his employees.16 Thus, several days
prior to May 21, 1962, Yetter called upon Victor Clough at his home. Clough
had been in the employ of Respondent, and its predecessor, for 38 years. During
the conversation, Yetter offered Clough the six thousand dollar package. Yetter
explained that if he could obtain a five or six man "nucleus" he would hire "men to
go along with them as carpenters' helpers." Clough asked if this would require
him to "leave the Union." Yetter told Clough that this would be a matter for Clough
to decide. Clough told Yetter that as he was near retirement age he "wasn't
interested." 11
Similarly, a few days prior to May 21, Yetter called on Erwin Hescock at his
bome.18 Yetter handed Hescock a slip of paper containing the provisions of the
-six thousand dollar package and asked Hescock what he thought of the proposi-
tion. Hescock read the contents, handed the paper back to Yetter, and stated that
he wanted "no part of it." Yetter told Hescock to keep the paper and "think it
over." Hescock again asserted his disinterest and Yetter said, "I'll have to offer it
to someone else." 19
Of the individuals who comprise The Six, five accepted the offer by July 1962,
and the terms of the offer became then effective as to them; and one, Bridges,
19 The parties referred to this as the "six thousand dollar package."
14 The context of this reference in the minutes of May 9, 1962, indicates that this plan
would be made available to the "certain employees."
15 President Yetter's testimony confirms what the minutes of the special meeting reflect
with respect to the special meeting and the foregoing is predicated upon both.
1" Yetter so testified. He testified credibly that he made the offer to Elliot Allis, Richard
Bridges, Walter Donelson, Joseph I{alinowski, Michael Schab, and Owen Stacey, herein-
after called The Six, and to Erwin Hescock and Victor Clough, and that the offers were
made within a period of 3 or 4 days of each other.
17 The credited testimony of Victor Clough.
19 Yetter convincingly testified that this Incident transpired several days before Hescock
left his employ, which event occurred on May 23.
11 The credited testimony of Erwin Hescock.
COOKE & JONES, INC. 1671
accepted in August , and the terms then became effective as to him . After their
acceptance of the "package ," Yetter ceased making payments to the Union health
and welfare fund on their behalf.20
5. Postoffer events
In mid-August, Respondent's attorney Burton Winer contacted Muka and arranged
for Muka to meet with him and President Yetter. They met in Winer's office.
Present also were Joseph Curran, Massachusetts State conciliator , and Union Presi-
dent Bruno . At the conference Respondent again sought the Union's approval of
a provision conditioning the terms of the 1962-63 agreement so as to permit the
exclusion of The Six. Respondent asserted that The Six owned shares in the Com-
pany and were supervisors , whereas the Union insisted that as they continued to use
tools and they were appropriately in the "carpenter category." Muka further stated
that he could give no special concessions to Respondent as an agreement had been
consummated with the majority of the employers and that that agreement was the
only one that he, on behalf of the Union, could accept.
This matter was again the subject of discussion between Muka and Yetter some
3 weeks later, and during other and subsequent meetings of the two occasioned by
Muka's triweekly visits. Each individual adhered to the position taken at the
August meeting.21
By letter dated September 20, 1962, Respondent President Yetter advised the
Association:
Due to the conflict between the requirements of membership in the associa-
tion - and changes in our employee status I regretfully submit my resignation
from the Northern New England Building Trades Assn , Inc. effective September
21, 1962.
Subsequently , by separate letter dated October 8, 1962 , and signed by Union
Recording Secretary George Miner , the Union notified each of The Six to appear
at the union hall on November 6, 1962, to answer charges being brought against
them by the Union.
At this juncture, following conferences with representatives of the Regional Direc -
tor of the First Regional Office of the Board , the Respondent on October 16, 1962,
as stated above, executed an informal settlement agreement in Case No. 1-CA-3906
then pending , pursuant to which Respondent President Yetter executed the 1962-
63 agreement 22 with the Union that had previously been executed by the other
four firms comprising the Association.23 The settlement agreement also provided for
the posting of a notice providing that the Respondent would bargain with the Union
in the following described unit:
All carpenters employed by members of the Northern New England Building
Trades Association , Inc., including all of our carpenters , excluding all other
employees and supervisors as defined in Section 2(11) of the National Labor
Relations Act, as amended.
The notice further provided that the Respondent would not bargain directly with the
employees in the described unit but would bargain with the Union.
On October 22, 1962 , the Acting Regional Director of the First Region approved
the settlement agreement.
6. The October 31 special meeting
On October 31, 1962, Respondent held a further special meeting which was attended'
by President Yetter, John Winseck, Attorney Burton Winer and also attended by The
Six. Yetter indicated that the purpose of the meeting was to discuss a stock subscrip-
tion plan , stock redemption plan, and bonus and profit -sharing plan with respect to
The Six. At the meeting the events of the May 9, 1962 , special meeting were re-
20 The credited testimony of Sidney Yetter. Yetter credibly testified that he made
health and welfare payments on behalf of The Six for the period May through August
1962, but did not do so for the period September through December 1962. Yetter ex-
plained this by testifying that health and welfare payments are made for employees in the
bargaining unit who are union members but that when The Six accepted the "package"
they became members of management and were no longer in the bargaining unit.
21 The credited testimony of Muka.
22 President Yetter so testified.
28 As hereinafter discussed , the Respondent had not by its September 20 letter affected
a timely withdrawal from the Association.
1672. DECISIONS OF NATIONAL LABOR RELATIONS BOARD
viewed- and President Yetter presented to those in attendance the proposed stock
redemption plan and stock subscription plan. He further discussed the proposed
bonus plan. It was decided at the meeting to offer to The Six a stock subscription
agreement and President Yetter was authorized to execute an agreement embodying
the stock subscription plan. The same was decided with respect to, a stock redemp-
tion agreement and the board of directors also voted to adopt a bonus plan for The
Six. On that date, October 31, 1962, The Six accepted the stock subscription, stock
redemption, and bonus plans offered them.24
7. The Six withdraw from the Union
- In response to the Union's October 8, 1962, letter, referred to above, by letter
dated November 1, 1962, and signed by each of The Six, they, in substance, declined,
as requested by the Union, to appear on November 6 and answer charges against
them. They asserted that they had filed with the Union letters of resignation and
submitted payment of dues to bring them "current to the date of resignation." Their
letter further stated:
Our reasons for resignation are important to you because our interests now
are as employers not as employees. We are all part owners of Cooke & Jones,
Inc. Some of us are members of the Board of Directors, some are supervisors
and we all are stockholders. Our duties and responsibilities would require us
to vote 'and act on all matters as best suited the interest of Cooke & Jones, Inc.
It seems clear to us that had we not resigned, we would have been asked to do
so or else our rights would have been restricted as provided in the by-laws.
By letter dated November 23, 1962, the Union responded notifying The Six to
appear on December 4, 1962, to answer charges and stating further, "(r)egardless
of your relationship with Cooke & Jones, Inc., General Contractors, you are still
members of Local Union 549 and are bound to the Constitution and Laws of United
Brotherhood."
8. The January 31, 1963, meeting
On January 31, 1963, a special meeting of the stockholders of Respondent was
held. In attendance were President Yetter, John Winseck, Burton Winer, and The
Six (Elliot Allis, Richard Bridges, Walter Donelson, Joseph Kalinowski, Michael
Schab, and Owen Stacey). At the outset, Yetter announced that in view of develop-
ments, during 1962, certain changes in the officers of the corporation were necessary.
He asserted that certain employees had become stockholders and had assumed
managerial and supervisory positions with the corporation, and that in his opinion
they should be recognized by appointment to the board of directors, and as officers. -
He further noted the resignation of the corporation clerk, Samuel Tisdale, and the
need for the selection of a new clerk. In the balloting that followed, Walter Donelson
acid Owen Stacey were elected to '-the board of directors. In addition, Owen Stacey
was elected assistant treasurer and assistant clerk.
Immediately following this special stockholders meeting a special meeting of the
board of directors was held. In attendance were President Yetter, John Winseck,
Burton Winer, Watler Donelson, and Owen Stacey. President Yetter indicated that.
for the reasons stated at the stockholders meeting, certain changes in the officers were
necessary. Thereafter, Walter Donelson was elected vice president and the appoint-
ment of Owen Stacey as assistant treasurer was consummated.25
9. Further efforts to arbitrate with respect to the status of The Six
At a conference on April 8, 1963, the Union and Respondent discussed the effect
of the purported changes in the status of The Six, and the payment of sums of money-
with respect to them. By letter dated April 1, 1963, Respondent notified the Union
that it had sought legal advice with respect to the contested status of The Six -and had
24 The foregoing is predicated upon the minutes of the October 31 meeting. In evidence,
and upon the testimony of President Yetter.
26 The foregoing is based upon the minutes of the respective meetings and the testimony
of Sidney Yetter. Yetter also testified in the fall of 1962 at an informal meeting at which
no minutes were kept, Stacey and Donelson were "discussed as members of the Board of.
Directors" -and were made members of the board at that meeting. He further testified
that the action was not formalized until the January 31 meeting. Yetter's testimony
concerning the selection of Stacey and Donelson at the informal meeting is not credited.
In- addition to . the elements of implausibility with respect to the .testimony, Yetter's
recollection of the details of the "informal meeting" appeared vague.
COOKE & JONES, INC. 1673
been informed that the men in question were "members of the management group.
of Cooke & Jones, Inc., and, therefore, are properly excluded from the bargaining
unit." Thereafter, on April"16, the Union advised Respondent that The Six were no
longer "members of the Union in good standing because they have refused to pay
proper dues for a period of. six months." Accordingly, the Union demanded their
termination under terms of the "existing work agreement."
Then, on May 15,. 1963, the Union by letter to Respondent, requested arbitration
of Respondent's refusal to terminate The Six and invited Respondent's designation
of three individuals to serve as members of the arbitration board. The Respondent,
on May 31, -responded, designating President Yetter, Walter Donelson, and Owen
Stacey as arbitrators.. Subsequently, in June a meeting was held. The Respondent at first took the posi-
tion that there was no issue to arbitrate. The discussion turned to the designation
of an arbitrator and the Union submitted three names which Respondent rejected.
Respondent in turn, suggested its attorney, Burton Winer. This was rejected and the
meeting ended with the understanding that Respondent would submit other names for
consideraion. By telephone, Respondent later suggested Judge Tisdale, its former
clerk and the incumbent judge of the probate court 26 in Greenfield, Massachusetts.
The Union. appears to have rejected this suggestion and efforts to arbitrate were left
unresolved 27
D. Conclusions
1. Respondent's membership in the Association
The complaint alleges and the answer admits that at all times material Respondent
has been a member of the Association. With this matter resolved by the pleadings,
little more than a passing reference to this element of the case is required. Under
well-established precedent Respondent was not free to withdraw from Association
bargaining at a time when contractual negotiations had been completed and the
resulting agreement had been executed by the other Association members,28 or after
the agreement had been in. effect for a term 29 Thus Respondent's September 20,
1962, letter by which it submitted its resignation from the Association was untimely;
and was a nullity in relieving Respondent of its obligation with respect to the 1962
negotiations and resultant agreement, as hereinafter more fully discussed and found.
2. Appropriate unit
The complaint, as amended at the hearing, alleges as appropriate the following
described unit of employees:
All carpenters employed by the members of the Association, excluding all em-
ployees employed by W. W. Wyman, Inc., who are employed in areas other than
the Greenfield. Massachusetts, area, including all carpenters of the Respondent,
excluding all other employees and supervisors as defined in Section 2(11) of the.
Aot.30
Each of the employer-members of the Association during times pertinent herein.
employed carpenters. During pertinent periods, W. W. Wyman employed two car-
penter employees regularly and a third intermittently in the Greenfield, Massachusetts,
area. But, additionally, during relevant periods Wyman performed work outside the
State of Massachusetts where it employed carpenters other than the three aforesaid.
In the construction industry, a unit of carpenter employees excluding all other em-
ployees, such as -alleged by the General Counsel to be herein appropriate is a tradi-
tionally appropriate unit. Similarly, in the construction industry, units defined in
. 26 Judge Tisdale had resigned his position as clerk of Respondent to assume the
judgeship.
=' The foregoing is based upon the credited testimony of Sidney Fetter and George Miner.
.?sMcAnary & Welters, Inc., 115 NLRB 1029; Anderson Lithograph Company, Inc. and
Jeffries Banknote Company, 124 NLRB 920, enfd. sub nom. N.L.R.B. v. Jeffries Banknote
Company, 281 F. 2d 893 (C.A. 9) ; Donaldson Sales, Inc., ]41 NLRB 1303; Walker Tlcc-.
trio Contpamj, 142 NLRB 1214..
2B American Publishing Corporation, et al., 121 NLRB 115, 122.
30 The unit description contained in the complaint was amended orally by the counsel
for the General Counsel at. the hearing. As pointed out in the General Counsel's brief,
the word "including" appearing on line 15, page 284, of the transcript should read "ex-
cluding" and the transcript is, accordingly, corrected.
1674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
geographic terms and limited to the geographic area of the employer 's operations have
been found by the Board to be -appropriate units 31
In the circumstances of this case I find the unit above described to be a unit
appropriate for collective bargaining.
3. The majority status of the Union
While W . W. Wyman , Inc., had not executed the 1959 agreement , the other four
firms which in 1960 joined together to comprise the Association had executed and
given effect to its terms which, inter alia, recognized the Union as the exclusive
bargaining representative of carpenter employees of the signatory employers. In
addition , although W . W. Wyman , Inc., had not executed the 1959 agreement, at
times pertinent herein as found above , it employed in the Greenfield , Massachusetts,
area, three carpenter employees , all of whom were members of the Union . Like the
1959 agreement, the 1962 agreement executed in July similarly recognized the Union
as the exclusive bargaining representative of employees of the signatory employers
and contained a union -security and maintenance -of-membership clause . During the
negotiations for the 1962 contract , the Union 's majority status was not questioned.
No evidence was adduced at the instant hearing questioning the Union 's majority
status at the time of the execution of the 1959 contract ; during its term which ended
on March 31, 1962 ; during the hiatus period between April 1 , 1962 , and July of the
same year when the majority of the Association member-firms executed agreement;
or in July when the agreements were actually executed.
Accordingly, in the circumstances described , I make the presumption that the
signatories ' recognition of the Union both in 1959 and 1962 was lawful and that
during the term of the 1959 agreement and the pro tanto term of the 1962 agree-
ment , here pertinent , the Union continued to be the majority representative of em-
ployees of the signatories32 Considering this factor , together with the Union's rep-
resentation of the carpenter employees of W. W . Wyman , Inc., and the absence of
evidence indicating that at any time material , the Union 's majority status was ques-
tioned by members of the Association , I find that at all times material the Union
was the majority representative of the carpenter employees in an appropriate unit.33
4. Refusal to execute
The evidence adduced by the General Counsel relating to the bargaining sessions
leading to the 1962 agreement , reflect that the Union and all participating employees,
save Respondent , on May 21 achieved agreement on 15 of the 16 articles under con-
sideration . The parties remained in disagreement concerning the inclusion of the
picket clause and the employers on May 21 deferred acceptance of it pending further
study. The alternative language revising the Union's draft, was unacceptable' to
the Union and the Union tacitly withdrew the proposal , but did not communicate to
the employers its decision to do so . I do not find that a meeting of the minds was
achieved sub silentio from the Union 's uncommunicated abandonment of a term it
had continued to press at the formal bargaining sessions , for it appears that by offer-
ing revised picket clause terms for union consideration the Association contemplated
further discussion . I find that the Union and the Association members, including
the Respondent , became contractually bound during the last weeks of July when a
majority of the members of the Association executed the document which the Union
had caused to be printed and had executed . • Only then was a final meeting of the
minds on all terms of an agreement achieved.
As Respondent was at this point in time, as above discussed and found , a member
of the Association , the Respondent's adamant refusal until October 18 , 1962, to
execute the agreement and its refusal until October 18, 1962 , to do so constituted
an unlawful refusal to bargain collectively and violated Section 8 ( a) (5) of the Act.34
st See Trammell Construction Company, Incorporated , 126 NLRB 1365 ; The Plumbing
Contractors Association of Baltimore , Maryland . Inc., et al., 93 NLRB 1081, 1090-1091.
" See Servette , Inc., 133 NLRB 132, 136, enforcement denied on other grounds 313
F. 2d 67 ( C.A. 9).
as Any defection by employees of Respondent that may have occurred during relevant
periods herein, was attributable to Respondent ' s unfair labor practices , as hereinafter
found , and did not relieve the Respondent of its duty to continue to recognize the Union
as the statutory representative of its employees . See Yale Upholstering Company, Inc.,
127 NLRB 440 , 442, at footnote 1.
94 See Anderson Lithograph Company, Inc., et al., 124 NLRB 920; Cosmopolitan Studios,
Inc., 127 NLRB 788; Gerald Sklar and Alfred Goldman, Co -Partners d/b/a Michigan
Advertising Distributing Company, 134 NLRB 1289.
COOKE & JONES, INC. 1675
5. Individual bargaining
The further issue to be resolved is whether in instituting the six thousand dollar
package without consulting the Union and in dealing directly with individuals in its
employ concerning it, Respondent violated the Act.
Citing N.L.R.B. v. Adams Dairy, Inc., 322 F. 2d 553 (C.A. 8),35 and the administra-
tive decision of the General Counsel, Case No. SR-1441, July 7, 1961,36 the Respond-
ent defends the legality of its decision whereby, assertedly, "certain individuals" be-
came members of management and were endowed with supervisory authority. Con-
tending that it was motivated solely by economic considerations and not by union
animus and pointing to the absence of evidence establishing independent 8(a)(1)
violations, Respondent contends that the complaint must be dismissed. On the other
hand, citing Smith's Van & Transport Company, Inc., et al., 126 NLRB 1059, and
Shamrock Dairy, Inc., et a!., 119 NLRB 998 and 124 NLRB 494, the General Coun-
sel contends the institution of the six thousand dollar package, stock option, profit-
sharing and bonus plans, and the effectuation of a change, either :actually or illusory,
in the employee status of The Six without notice to the Union were violative of the
Respondent's obligation to bargain regardless of motive. But the General Counsel
additionally contends that Respondent's purported personnel reorganization, its
refusal to execute the collective -bargaining agreement , and its unilateral dealings
with The Six were calculated to destroy the Union's position as the majority rep-
resentative of its carpenter employees and was, accordingly, violative of the Act.
The parties appeared tacitly to concede that the issue here involved is distinguish-
able from that presented in N.L.R.B. v. Benne Katz, etc., d/b/a Williamsburg Steel
Products Co., 369 U.S. 736, relating to unilateral changes in employee benefits dur-
ing contract negotiations. In Katz the beneficiaries were concededly employees and
the benefits were not, as here, arguendo, to vest at a time when the beneficiaries
achieved supervisory status.
After careful consideration of the evidence and the contentions of the parties, I
am of the opinion that the General Counsel must be found to have prevailed not only
on the Smith's Van & Transport point but with respect to his contention regarding
Respondent's motivation as well. While a finding favorable to the General Counsel
on the former issue is dispositive of this case, a determination also at this decisional
level of the question of motivation is deemed desirable.
6. The status of The Six
In deciding the issue posed with respect to the applicability of the Smith's Transport
line of cases, I believe it becomes essential to determine whether under the plan in-
stituted by the Respondent The Six became supervisors during times pertinent herein,
or were removed from the bargaining unit by operation of law by virtue of having
become stockholders allied with management.
With respect to the supervisory issue it appears beyond question the duties and
responsibilities prescribed for the general superintendent of production employees,
superintendent of mills and yards, and job coordinators, respectively, in the May 9,
1962, minutes of the special board of directors and stockholders meeting, if actually
possessed or exercised by the incumbent individuals would constitute them supervisors
within the meaning of the Act. It becomes essential therefore to determine whether
any of The Six actually became possessed of this authority.
At the outset it is to be remembered that during the year prior to May 1962, accord-
ing to the testimony of Victor Clough and Sidney Yetter, which I credit, Respondent's
carpenters worked in crews of from two to six or seven. Most jobs entailed the use
of two or three carpenters. It was the practice for carpenters to alternate serving as
job leaders. The job leader, like the other crew members, worked with the tools and
his responsibilities differed from those of the other carpenters only to the extent of
accomplishing by use of rule, square, and blueprints the necessary measurements and
markings to aid the carpenters in the proper placement of timbers and accomplish-
ment of their carpentry task. In addition, according to Clough's credited testimony,
the work leader would ask the more capable carpenter to perform the task the leader
deemed more complicated. The work leader also had general responsibility for
keeping the job running.
Yetter conceded that after May 1962 and until the time of the bearing The Six
continued to perform carpentry work and that the above-described crew arrangement
remained in effect. I find that the authority of the job leader was so circumscribed
'Wherein the court modified the Board's Order (137 NLRB 815) in certain respects
and denied enforcement of that portion here pertinent.
86 48 LRRM 1519.
1676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the direction of employees so routine as to preclude a finding that while serving
as job leaders individuals were performing supervisory tasks. Indeed, Respondent
appears tacitly to concede this for Yetter contends that after July 1962, The Six
were vested with and exercised greater autonomy in directing the jobs to which they
were assigned and with authority to hire and discharge employees. With respect
to greater autonomy , Yetter testified that the job leaders were authorized to resolve
some construction problems arising on the job by contracting the architect or sub-
contractors directly without prior consultation with or approval of Yetter or Winseck.
With respect -to the hire and discharge of employees , Yetter testified that during
relevant times Donelson employed two carpenters and that Kalinowski , Donelson,
Schab, and Allis had discharged employees.
But with respect to the foregoing , an analysis of the testimony reveals that the
greater autonomy extended to The Six in their capacity of job leaders amounted
merely to a grant of greater freedom in the exercise of their carpentry skills looking
toward the more expeditious accomplishment of the work projects , but did not include
a concomitant grant of increased authority to oversee the work of employees or
responsibly to direct them in the performance of their work tasks. Regarding Donel-
son's "hire" of two employees , Noyes and Pride, the evidence reveals that the two
individuals became employees of Respondent at a time after the Union had ceased
referring carpenters to Respondent and the need for carpenter employees had become
so acute that, as Yetter conceded , "[ w]e all went scouting for help" as "things were
desperate ." He had instructed , "[ i]f you know anyone who wants a job, bring him
in." Thus when Donelson informed Yetter that he had 'a friend coming in Yetter
answered , " if you've got a body who can swing a hammer, I'll be more than happy
to have him." In these circumstances , I find that Donelson's recruitment activities
with respect to Noyes and Pride was undertaken pursuant to instructions issued by
Yetter to meet a specific acute staffing need; that referrals by any rank-and-file em-
ployees similar to those made by Donelson would have been equally as efficacious;
and that the part played by Donelson in the employment of Noyes and Pride , given the
attendant factors, does not reveal the statutory authority to hire employees resided in
Donelson.
Similarly, evidence pertaining to alleged discharges assertedly affected by members
of The Six failed to establish their possession of the statutory authority to discharge.
Each -termination concerning which Yetter testified resulted either from a lack. of
work due to the approaching or actual completion of a project or pursuant to a final
decision by Yetter or Winseck. Terminations for lack of work flow automatically
pursuant to. Respondent 's established practice and are thus routine. The other
instances , with respect to Ryan , Dean , and Evans , the participating member of The
Six served merely as a conduit of factual information upon which Yetter's decision
to terminate was made, and, then , The Six routinely carried out Yetter's instructions
to terminate . Yetter testified that employee Hammond was laid off in July 1963
by Winseck upon Schab 's recommendation. Yetter was not more explicit concern-
ing the nature of Schab's recommendation . Suffice it to say, Winseck took the final
action in terminating Hammond and evidence of record is, in my opinion , too insub-
stantial to support the finding that Schab possessed supervisory status resulting from
his authority effectively to recommend the discharge of employees.
Nor is the evidence pertaining to Bridges ' alleged supervision over the truck-
driver and intermittently employed yard employees , to which Yetter testified, sub-
stantial enough to prove Bridges possessed supervisory authority with respect to them.
Save for a generalized statement of Bridges ' alleged authority, Respondent did not
undertake to demonstrate Bridges' work relationship to these employees.
As I am convinced that the evidence does not establish the exercise of supervisory
authority by any of The Six, it is essential to determine whether they nonetheless were
vested with supervisory authority at times pertinent herein.
The mere conferring of a job title with attendant job-description encompassing
apparent supervisory duties is, of course , not determinative of the question of super-
visory authority , unless it is mutually understood between management and the in-
dividual upon which the authority is conferred that the authority is being vested
in him and may be exercised . The evidence pertaining to the purported grant of
supervisory authority to Kalinowski , Bridges, Allis, Schab as spelled out in the May
9 minutes of the special meeting, and to the later alleged grant to Stacey and Done]-
son, convinces me that the grant was simulated and not actual . I am led to this
conclusion by the evidence revealing that at all times pertinent the complement of
individuals in Respondent's employ was small and the method by which the crews
carried out their duties , as above explicated , remained unchanged after the alleged
COOKE & JONES, INC. 1677
grant of supervisory authority. Accepting Respondent's contention that The Six
were supervisors would lead to the anomalous situation, as the General Counsel
points out, of one "supervisor" working side by side with other "supervisors," on the
same assignment; of having an admitted rank-and-file employee, as was Clough,
act as job leader on a crew to which a "supervisor" was assigned as a mere member;
of having six "supervisors" of a complement of employees that during the' months
of September through December 1962 consisted (as in.October) of never more than
nine individuals, exclusive of The Six, and, in September and December, of only
three employees, in addition to The Six. A similar dearth of employees persisted
through May 1963, and not until the summer months of 1963 did the employee
complement significantly exceed the number of alleged supervisors. Thus, in June,
July, and August, in addition to The Six, Respondent employed 12, 17, and 15 em-
ployees, respectively. But it is precisely with respect to the alleged supervisory ac-
tivities of The Six during this period that Yetter testified in detail, and I have found
above, that the evidence failed to establish that any of The Six exercised supervisory
authority during this period; but rather, when opportunities arose to exercise super-
visory authority, if indeed they possessed it, they served as mere conduits leaving
to Yetter or to Winseck the decision-making responsibility.
The conclusion I believe impelled from the circumstances is that in fact and
indeed The Six were endowed with no actual supervisory authority and they under-
stood that they were not. While the May 9 minutes entry purports to set out au-
thority to be vested in in futuro in designated individuals, the authority never in
fact vested. Indeed my certitude in this respect is increased by the conflicting
testimony of Yetter and Winseck with respect to when supervisory authority was
actually conferred on The Six, by Yetter's inability without the aid of the copy of
the minutes entry to recount actual supervisory authority with which The Six were
allegedly vested. I am convinced and find that the bestowal of job titles upon
these six was a matter of form only, intended to grant a title to each of the individuals
who joined with Yetter and Winseck in the organization plan envisaged by the six
thousand dollar package.
From the foregoing determination with respect to the status of The Six, it follows
that on October 31, 1962, they were employees of Respondent and not supervisors.
Consequently, when on that date, Respondent met with them and discussed a stock
subscription and redemption plan and a profit-sharing plan, and entered into an
agreement with them with respect thereto, it engaged in individual bargaining with
employees at a time when the Union was the majority representative of an appro-
priate unit. By so doing, Respondent violated Section 8(a)(5) and (1) of the
Act even though arguendo, Respondent's motive may have been entirely economic
and the action was not taken for the purpose of destroying the Union's status as
majority representative of the carpenter employees. 37 In addition, as The Six,
as employees, were on October 31, 1962, covered by an existing collective-bargain-
ing agreement binding upon all members of the Association and the Union, and as
the individual arrangements into which they entered on October 31 constituted mid-
term modifications of the existing collective-bargaining agreement, Respondent
violated Section 8(d), and thus, Section 8(a)(5) of the Act by failing to give the
notice prescribed by Section 8(d) of the Act.38 As Respondent by this conduct
violated the Act, the Regional Director acted properly in setting aside the October 16,
1962, settlement agreement. And, of course, as The Six were mere employees and
not supervisors during May through August 1962 when the Respondent was offering
and they were considering and accepting the "package," it follows that Respondent's
conduct with respect to the "package" during that period was likewise violative of
Section 8(a) (5) of the Act.
Nor was Respondent's individual bargaining permissible because, as it contends,
The Six were "members of management ." As the chronology of events establishes,
none of The Six acquired stock ownership until after the October 31, 1962, meeting
and, indeed, the stock ownership was a product of Respondent's direct bargaining
37 See Smith's Van c6 Transport Company. Inc., et al., 126 NLRB 1059; and Shamrock
Dairy, Inc., et al., 124 NLRB 494, 498, wherein members Jenkins and Fanning found,
inter alia, that as drivers retained their employee status under individual contracts pur-
porting to change their status to that of independent contractors, the Respondent therein
engaged in individual bargaining by eaecuing the individual contracts and violated Sec-
tion 8(a.) (5) and (1) of the Act. See also Squirt-Nesbitt Bottling Corp., 130 NLRB 24.
's Shamrock Dairy, Inc., et al., supra.
1678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with individuals I have found to be employees, and was violative of Respondent's
obligation to bargain only through the majority representation of its employees.
Thus, Respondent may not successfully defend its conduct on this ground.39
I do not deem it necessary to reach the question whether as,the General Counsel
appears to contend in his brief, if it were found that The Six did in fact become
supervisors during the contract term and their selection and promotion were
predicated solely on economic grounds Section 8(a)(5) and (1) of the Act would
nevertheless have been violated by virtue of Respondent's failure to consult first with
the Union concerning its decision and implementation thereof. As I resolve both
predicates adverse to Respondent, as more fully discussed below, the decision of the
Court of Appeals for the Eighth Circuit in Adams Dairy, the decision for the Court
of Appeals for the Fifth Circuit in Houston Chronicle and the administrative decision
of the General Counsel in Case No. SR-144-1, are not apposite.
In addition to the foregoing, I am of the opinion and accordingly find that Re-
spondent was not motivated solely by economic considerations in devising the "pack-
age" and dealing with employees concerning it. Rather, I find that it was motivated,
at least in part, by a desire to effect the withdrawal of a nucleus of employees from
the Union.
It is well settled that a company may change its business methods so long as its
change in operations is not motivated by the illegal intention to avoid its obligation
under the Act.40 However, an employer violates the Act when as an inducement
to abandon union allegiance it holds out to rank-and-file employees the prospects
of promotion to supervisory status, or promotes rank-and-file employees to super-
visory positions for the purpose of removing them from the bargaining unit or
diluting the Union's representation in the unit 41
Initially persuasive with respect to Respondent's motive is Clough's credited
testimony that Yetter asserted to him that if he could obtain a five- or six-man
"nucleus" Respondent would hire carpenter helpers "to go along with them." When
this statement is weighed together with a consideration of the attitude Yetter con-
cedes he possessed and displayed with respect to the 1962 contractual negotiations,
and Yetter's subsequent and adamant refusal to execute the agreement that resulted
from the 1962 negotiations, the conclusion is required, which I make, that by May 9
when he and Winseck agreed upon the "package" to be offered "certain employees,"
Yetter had reached a firm resolve to cease dealing with the Union and to maintain
operations through the use of a year round nucleus of carpenters augmented, as
necessary, by less skilled "helpers." I am convinced in view of Yetter's long experi-
ence in the construction field as a union carpenter and employer of union employees,
that Yetter well knew the consequences that would flow from his refusal to accept the
contract and his employees' acceptance of the "package" be had devised. Thus, I am
convinced that, although he did not in terms state his intention to the individuals
solicited, Yetter intended and well knew that employee acceptance of the "package"
would have the effect of causing those who accepted its benefits to resign from the
Union. Indeed, the terms of the "package" were calculated to have that effect. By
insisting during the months that followed the offer of the "package" and its acceptance
by The Six that The Six had been removed from the bargaining unit and in ceasing
health and welfare payments on their behalf on that ground Yetter graphically
revealed his understanding of the effects of the employees' acceptance of the pack-
age upon their status. While he predicated his advocacy of their removal from the
unit on supervisory and managerial grounds, the paucity of evidence reflecting the
possession of actual supervisory authority by The Six, as found above, and the belated
nature of their acquisition of stock ownership, further suggests that the "package"
was introduced as a play to accomplish the defeasance of the Union.
30 Nor does the post-October status of The Six as stockholders, and of Douelson and
Stacey as members of the board of directors after January 31, 1963, have remedial impli-
cations herein. Prescinding from the question of the inclusion in a bargaining unit of
managerial employees (Coastal Plywood d Timber Company, 102 NLRB 300. 302, and
cases cited therein at footnote 8; Pioneer Holding Company d/b/a Blue and White Cab
Co., 126 NLRB 956, 957; Chester County Beer Distributors Association, 133 NLRB 771,
774), as The Six achieved this status by virtue of the illegal conduct of the Respondent,
destructive of the Union's rights as majority representatives, I am of the opinion and
hereinafter recommend that the status quo as of May 1962 be restored with respect to
these six employees and that Respondent bargain with the Union with respect to the
institution of any stock-purchase benefits to its employees.
40N.L.R.B. v. Th e Houston Chronicle Publishing Company, 211 F. 2d 848, 851 (C.A. 5).
11 See Rubber Fabricators, Inc., 142 NLRB 67 (IR) ; Fetzer Television, Inc., 131 NLRB
821, 832-833; Power Equipment Company, 135 NLRB 945, 966; Coca-Cola Bottling
Company--Indianapolis, Indiana-Incorporated , 142 NLRB 1030 (IR).
COOKE & JONES, INC. 1679
Finally , further persuasive of the conclusion that the "package" was devised as a
strategic gambit against the Union is Yetter 's and Winseck 's ready abandonment of
their March 9 profit-sharing plan in favor of the "package ." This apparent
impetuosity on the part of Yetter and Winseck is the more puzzling when it is
recalled that 2 months earlier, in March , a comprehensive profit-sharing plan was
consummated by them and the question of stock ownership , corporate officers, and
membership on the board of directors were considered and resolved without any ap-
parent consideration of employees with respect to the diversity -in-management-and-
ownership question . There is no evidence to suggest that the considerations which
Yetter asserts led Respondent to desire greater diversity at the management level had
become different or more acute in May than they had been in March.
In the circumstances , I conclude and find that Respondent was motivated , in part, in
,dealing directly with -individuals in its employ and in offering them benefits in the
form of purported supervisory status by a desire to induce them to abandon the Union
and thus to divest the Union as their representative . Such conduct violates Section
8(a) (5) and ( 1) of the Act for it had as its purpose and foreseeable result the under-
mining of the Union as the bargaining representative of Respondent 's carpenter
employees 42
I further find, as alleged in the complaint , that at all times subsequent to May 21,
1962, the Respondent failed in its obligation to bargain collectively with the Union
as exemplified by the unyielding attitude with which President Yetter concedes he
approached the bargaining table, by its adamant refusal to execute the agreement
consummated by the Association with the Union, and by its unilateral dealings with
employees concerning benefits of employment.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III , above , occurring in con-
nection with the operations of Respondent described in section 1, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the sev-
eral States , and tend to lead to labor disputes burdening and obstructing commerce
and the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices violative of
Section 8(a) (1) and (5) of the Act, it will be recommended that it be ordered to cease
and desist therefrom and take certain affirmative action designed to effectuate the
policies of the Act.
Thus, having found that the Respondent has refused to bargain collectively with
the Union and has, on the contrary , engaged in individual bargaining with its em-
ployees in derogation of the Union 's representative status, it will be recommended
that the Respondent cease and desist therefrom and that it cease giving effect to the
so-called six thousand dollar package consisting of a $6,000 annual salary, a 2-week
paid vacation, a $1,000 insurance policy, and a health insurance plan with respect to
the six employees , Elliot Allis, Richard Bridges, Walter Donelson , Joseph Kalinowski,
Michael Schab, and Owen Stacey , and the stock subscription , stock redemption, and
bonus plans into which they entered on October 31, 1962. As the Union has never
acceded to the institution of these benefits and as there are other employees in the
unit both of Respondent and of other members of the Association who constitute
.a majority of the employees in the unit herein found appropriate and who have not
been accorded these benefits by -their employers , it is deemed appropriate here to
order revocation by the Respondent of the unilateral changes in wages and benefits
aforesaid , without regard to the wishes or preferences of the six employees to whom
the benefits were unlawfully awarded . Cf. Cascade Employers Association, Inc.,
126 NLRB 1014. Rather, I shall recommend that Respondent be required to adhere
to the existing collective-bargaining agreement between the Union and the Asso-
ciation for its duration , this to include the requirement that Respondent recognize
the Union as the bargaining representative for all of its carpenter employees, in-
cluding the six individuals aforesaid ; and that it give retroactive effect to all the
terms of the collective -bargaining agreement , including, but not limited to, the pro-
visions relating to wages and health and welfare contributions . It shall be recom-
mended that Respondent pay into .the health and welfare fund on behalf of all of
its employees in the unit sums in an amount equal to the moneys which would have
paid into said fund absent the illegal conduct found herein. I shall further recom-
mend that Respondent make whole its employees in the aforesaid appropriate bar-
'2Medo Photo Supply Corporation v. N.L.It.B., 321 U.S. 678.
744-670-65-vol. 146-107
1680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gaining unit, including the six employees above referred to, for any loss which
they may have suffered by reason of Respondent's refusal until October 18, 1962, to
execute the 1962 collective-bargaining agreement between the Association and the
Union, and by virtue of its unilateral modification of wages, rates of pay, and em-
ployee benefits with respect to The Six. Said backpay shall be computed in accord-
ance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289, and
shall bear interest as prescribed in Isis Plumbing & Heating Co., 138 NLRB 716.
Upon the basis of the foregoing findings of fact, and upon the entire record in
this case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Northern New England Building Trades Association, Inc., is, and at all
times material herein has been, an association of employers that exists and has
existed for the purpose, inter alia, of representing employer-members in multiem-
ployer collective bargaining with the Union.
3. Respondent at all times material herein has been a member of the Association
and Respondent's September 20, 1962 letter was insufficient to effect a timely
withdrawal therefrom.
4. Local No. 549, United Brotherhood of Carpenters and Joiners, AFL-CIO,
is a labor organization within the meaning of Section 2(5) of the Act.
5. All carpenters employed by the members of the Association, excluding all em-
ployees employed by W. W. Wyman, Inc., who are employed in areas other than the
Greenfield, Massachusetts, area, including all carpenters of the Respondent, excluding
all other employees and supervisors as defined in Section 2(11) of the Act, con-
stitute a unit appropriate for the purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act.
6. Local No. 549, United Brotherhood of Carpenters and Joiners, AFL-CIO,
has been at all times material herein, and now is the exclusive representative of all
carpenter employees in the aforesaid appropriate unit for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
7. By refusing to bargain collectively with the Union as the exclusive bargaining
representative of the employees in the appropriate unit, by refusing after mid-July
1962 until on or about October 18, 1962, to execute the collective-bargaining agree-
ment entered into between the Association and the Union, by dealing directly and
individually with employees in the aforesaid unit concerning wages, benefits, and
other conditions of employment, and by offering employees promotions to purported
supervisory positions for the purpose of inducing them to abandon the Union as
their representative for the purpose of collective bargaining, the Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in the case, I recommend that the Respondent, Cooke &
Jones, Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Local No. 549, United Brotherhood of
Carpenters and Joiners, AFL-CIO, as the exclusive representative of all carpenters
employed by the members of the Northern New England Building Trades Asso-
ciation, Inc., excluding all employees employed by W. W. Wyman; Inc., who are
employed in areas other than the Greenfield, Massachusetts, area, including all car-
penters of Cooke & Jones, Inc., excluding all other employees and supervisors as
defined in Section 2(11) of the Act.
(b) Dealing directly and individually with employees in the aforesaid appropriate
unit concerning wages, benefits, and other conditions of employment, specifically by
offering them a $6,000 annual salary, a 2-week paid vacation, a $1,000 insurance
policy, and a health insurance plan, and by offering to and consummating with its
employees a stock subscription, stock redemption, and bonus plan.
(c) Dealing individually with employees in derogation of their bargaining rep-
resentative with respect to any matter properly the subject of collective bargaining.
(d) Offering, employees promotions to purported supervisory positions for the
purpose of inducing them to abandon the Union as their representative for the pur-
pose of collective bargaining.
COOKE & JONES, INC. 1681
(e) In any other manner interfering with, restraining, or coercing its employees
in the exercise of the right to bargain collectively through representatives of their own
choosing.
2. Take the following affirmative action which is necessary to effectuate the policies
of the Act:
(a) For its duration, adhere and give effect prospectively to the existing collective-
bargaining agreement between the Union and the Association including, under the
terms thereof, recognizing the Union as the bargaining representative for all of its
carpenter employees, including Elliot Allis,.Richard Bridges, Walter Donelson, Joseph
Kalinowski, Michael Schab, and Owen Stacey.
(b) Give retroactive effect to May 21, 1963, to all the terms of the aforesaid
collective-bargaining agreement and under the terms thereof make payment into
the health and welfare fund on behalf of all of its employees in the aforesaid ap-
propriate collective-bargaining agreement of sums in an amount equal to the moneys
which would have been paid into said fund absent the illegal conduct found herein.
(c) Notify, individually, and by the posting of the notice attached hereto, Elliot
Allis, Richard Bridges, Walter Donelson, Joseph Kalinowski, Michael Schab, and
Owen Stacey that the provisions of the so-called six thousand dollar package and the
stock subscription, stock redemption, and bonus plans entered into on October 31,
1962, have been terminated.
(d) Make whole its employees in the aforesaid appropriate bargaining unit, in-
cluding Elliot Allis, Richard Bridges, Walter Donelson, Joseph Kalinowski, Michael
Schab, and Owen Stacey, for any loss which they may have suffered by reason of
Respondent's refusal until October 18, 1962, to execute the 1962 collective-bargaining
agreement between the Union and the Association, and by reason of its unilateral
modification of wages, rates of pay, and employee benefits with respect to the six
aforesaid employees in the manner set forth in the section of this Decision entitled
"The Remedy," restoring whatever seniority and other rights and privileges they
may have lost by said actions of Respondent.
(e) Preserve and, upon request, make available to the Board and its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to determine
the amount due as backpay and as proper payment into the health and welfare
fund.
(f) Post at its plant in Greenfield, Massachusetts, copies of the attached notice
marked "Appendix A." 93 Copies of said notice, to be furnished by the Regional
Director for the First Region, shall, after being duly signed by an authorized rep-
resentative of the Respondent, be posted by it immediately upon receipt thereof, and
be maintained by it for a period of 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily posted. Rea-
sonable steps shall be taken by said Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(g) Notify the Regional Director for the First Region, in writing, within 20 days
from the date of this Decision, what steps the Respondent has taken to comply
herewith.44
"If this Recommended Order is adopted by the Board , the words "a Decision and
Order" shall be substituted for the words " the Recommended Order of a Trial Examiner"
in the notice. If the Board's Order is enforced by a decree of the United States Court of
Appeals, the notice will be further amended by the substitution of the words "a Decree
of the United States Court of Appeals, Enforcing an Order" for the words "a Decision
and Order."
"If this Recommended Order is adopted by the Board, this provision shall be modified
to read: "Notify the Regional Director for the First Region, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively with Local No. 549, United
Brotherhood of Carpenters and Joiners, AFL-CIO, as the exclusive bargaining
representative of the employees in the appropriate unit.
1682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The appropriate unit is:
All carpenters employed by the members of the Northern New England
Building Trades Association, Inc., excluding all employees employed by
W. W. Wyman, Inc., who are employed in areas other than the Green-
field, Massachusetts, area, including all carpenters of Cooke & Jones, Inc.,
excluding all other employees and supervisors as defined in Section 2(11)
of the Act.
WE WILL NOT deal directly or individually with employees in the aforesaid
appropriate unit concerning wages, rates of pay, benefits, and other conditions
of employment.
WE WILL NOT offer employees promotions to purported supervisory positions
for the purpose of inducing them to abandon the Union as their representa-
tive for the purpose of collective bargaining.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization to form, join, or
assist the above-named or any other labor organization, to bargain collectively
with the representatives of their own choosing, to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any or all such activities, except to the extent that
such right may be affected by the proviso in Section 8(a)(3) of the Act.
WE HAVE terminated and ceased giving effect to an agreement with the fol-
-lowing named employees which agreement provided for an annual salary, paid
vacation, a life and health insurance plan, and encompassed a stock subscription,
stock redemption, and bonus plan:
Elliot Allis Walter Donelson Michael Schab
Richard Bridges Joseph Kalinowski Owen Stacey
WE WILL, for its duration, abide by all the terms of the collective-bargaining
agreement entered into between the Union, this Company, and the other em-
ployer-members of the Northern New England Building Trades Association, Inc.
WE WILL in accordance with the terms of the collective-bargaining agreement
between the Union and the employer-members of the Northern New England
Building Trades Association, Inc., pay sums into the health and welfare fund
operative thereunder, on behalf of all employees in the unit, including the six
employees listed above, in an amount necessary to render said payments cur-
rent as of the date of the posting of this notice.
WE WILL restore to Elliot Allis, Richard Bridges, Walter Donelson, Joseph
Kalinowski, Michael Schab, and Owen Stacey whatever seniority and other
rights and privileges they may have lost as a result of entering into an agree-
ment with us covering the above-described employee benefits, and make them
or any other of our employees whole for any loss which they may have suffered
by reason of our refusal until October 18, 1962, to execute the collective-
bargaining agreement presently in effect between the union and the Northern
New England Building Trades Association, Inc., and by virtue of our unilateral
modification of wages, rates of pay, and employee benefits with respect to the
six named employees.
All our employees are free to become, or remain , or to refrain from becoming
or remaining members of any labor organization.
COOKE & JONES, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
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.
Employees may communicate directly with the Board's Regional Office, Boston
Five Cents Savings Bank Building, 24 School Street, Boston, Massachusetts, Tele-
phone No. 523-8100, if they have any questions concerning this notice or compliance
with its provisions.