Glass Workers Union Local No. 1220

National Labor Relations Board - Board Decisions

Dec 15, 1966

162 N.L.R.B. 168 (N.L.R.B. 1966)

168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Glass Workers Union Local No. 1220, affiliated with Brotherhood
of Painters, Decorators and Papers Hangers of America, AFL-
CIO; and United Glass Workers Local No. 188, affiliated with
Brotherhood of Painters , Decorators and Paper Hangers of
America, AFL-CIO and Industrial Conference Board. Case
19-CB-1109. December 15, 1966
DECISION AND ORDER
On September 13, 1966, Trial Examiner Josephine H. Klein issued
her Decision in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the attached
Trial Examiner's Decision. Thereafter, Respondents filed exceptions
and a brief and a memorandum in support thereof, and the Charging
Party filed an answering brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, briefs and memorandum, and
the entire record in this case, and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed by Industrial Conference Board ("I.C.B." or "employers")
on February 9, 1966, the Regional Director issued a complaint on March 29, 1966,
against Glass Workers Union Local No. 1220 and United Glass Workers Local No.
188, both stated to be affiliated with Brotherhood of Painters , Decorators and Paper
Hangers of America, AFL-CIO. The complaint alleged violation of Section 8(b)
(3) of the Act consisting of refusal to sign a collective -bargaining agreement which
had been reached on or about December 20, 1965,1 between I.C.B. and Local
No. 1220, the exclusive collective-bargaining agent for the employees of I.C.B.'s
members.
Pursuant to notice, a hearing was held before Trial Examiner Josephine H. Klein
on June 14 , 1966, in Seattle , Washington.
At the outset of the hearing, appearances of counsel were noted for the General
Counsel and for I.C.B. The record shows that Hugh Hafer, Esquire, stated that
"The Respondent is represented by Hugh Hafer, Seattle, Washington." At the time,
I did not notice or attach any significance to Hafer's use of the singular. The first
witness produced by the General Counsel was Jack Tschida, who had been business
1 Unless otherwise indicated , all dates in this Decision are in 1965.
162 NLRB No. 19.
GLASS WORKERS UNION LOCAL NO. 1220 169
representative of Local 1220 and chairman of its negotiating committee in the nego-
tiations here involved . When the General Counsel requested permission to examine
Tschida under Rule 43 ( b) of the Federal Rules of Civil Procedure , Hafer objected
on the ground that "There is no showing of hostility and he is not an agent or an
officer of the respondents , either 1220 , if such a union exists , or 188 which we know
definitely does exist ." I granted the General Counsel 's request and examination pro-
ceeded. The second witness called by the General Counsel was Lester Smith, who
had been Local 1220's president and a member of its negotiating committee at the
time here involved . Again Hafer objected to the General Counsel's invoking Rule
43(b). In addition to the reason stated in connection with Tschida , Hafer stated
that Local 188 was his only client and that he did not have authority to represent
Local 1220. I then pointed out that an answer to the complaint had been filed on
behalf of both Respondents jointly, signed by Hafer's firm as "Counsel for Respond-
ents Local No . 188 and 1220 ." Hafer then stated that the signature designation was
a "clerical error ." He asked permission to withdraw his firm's appearance for
Local 1220 and orally moved to amend the answer by changing the signature iden-
tification to read "Counsel for Respondent Local 188." While disclaiming any doubt
as to Hafer 's factual statement that he had received no authority to represent Local
1220, counsel for the General Counsel contended that, because of the union merger
(discussed below ), authority to represent Local 188, as a matter of law, included
authority to represent Local 1220 . I did not then rule on the issue of representa-
tion. The matter at hand was the General Counsel 's right to examine Smith , presi-
dent of Local 1220, under Rule 43 ( b). Since Local 1220 was a Respondent and
had been served with the charge , the complaint and the notice of hearing, the Gen-
eral Counsel 's right to invoke Rule 43(b) was unaffected by whether Local 1220
was represented by Hafer or not.2
I note that the answer filed on behalf of the two Respondents jointly contains
three paragraphs . The first begins , "The Respondents admit . . . ; the second
begins , "The Respondents deny . "• the third begins "The Respondent Local No.
188 admits . . . ... The apparently advertent use of the plural in the first two para-
graphs and the singular in the third indicates to me that the signature designation
cannot correctly be deemed a "clerical error ." Accepting counsel's statement that, as
a matter of fact , he had no express authority to represent Local 1220 , I rule that,
as a matter of law, counsel 's authority to represent Local 188 carried with it author-
ity to represent Local 1220 in this proceeding . Accordingly , I here deny counsel's
motion to amend the answer and withdraw his appearance for Local 1220 and find
that all parties were represented by counsel at the hearing.3
All parties were afforded full opportunity to be heard , to introduce evidence, and
to cross -examine witnesses . The parties waived oral argument but briefs have been
filed by the General Counsel , the Charging Party, and Respondents.4
On all the evidence ,5 observation of the demeanor of the witnesses, and consider-
ation of the briefs, I make the following:
FINDINGS AND CONCLUSIONS
1. JURISDICTIONAL FINDINGS
The complaint alleges, the answer admits , and I find that:
A. The Industrial Conference Board is a nonprofit corporation organized under
the laws of the State of Washington . It is the duly authorized bargaining agent for
a multiemployer bargaining unit composed of B & B Glass Company, Glass Sales
and Service , Inc., Milgard Glass Company , and Tacoma Glass Company, all of
2 Actually, the evidentiary ruling turned out to be essentially unimportant, since the Gen-
eral Counsel made very little use of the permission -ranted, Inc] none of the facts on which
the present decision is based was adduced by leading questions or other techniques of cross-
examination employed by the General Counsel in examining either Tschida or Smith.
I have placed no reliance on the portion of Smith's affidavit to a Board Field Examiner
which was read Into the record over Respondents' objection.
3If I am wrong in ruling that Local 1.220 was represented by Hafer, then it would be
subject to an order by default, since the record is clear that each Respondent was separately
served with all papers.
4 Although the brief consistently refers to the "respondent," in the singular, I consider
it as having been filed on behalf of both Respondent Unions, to the extent that they retain
separate Identities.
6 The General Counsel's unopposed motion to correct the transcript is granted.
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tacoma, Washington. During the past year, members of the Industrial Conference
Board, engaged in the sale and installation of glass, in the course of their business
sold and distributed products the total gross value of which exceeded $500,000.
During the same period, these members purchased and caused to be delivered to
their stores glass products and installation materials and other goods and materials
having a total value in excess of $50,000, which were transported to said stores
directly from outside the State of Washington. The Industrial Conference Board
and its members are, and at all times material herein have been, employers within
the meaning of Section 2(2) of the Act, engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
B. Respondents are,6 and have been at all times material herein, labor organiza-
tions within the meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICE
The gravamen of the complaint is that on or about December 20, 1965, agree-
ment was reached between Respondent Local 1220 and I.C.B. on all terms of a
collective-bargaining agreement, and that since that time Local 1220 and its suc-
cessor, Local 188, have wrongfully refused to sign a written contract embodying
the terms agreed upon. Respondents deny the allegations, maintaining that no con-
tract was made because the union membership did not ratify the contract in its
entirety after final agreement had been reached by the negotiators.?
A. The facts
Since about 1941 I.C.B. and Local 1220 have been negotiating collective-
bargaining agreements covering the employees of I.C.B.'s members. In April 1965
their most recent written agreement was reopened according to its terms and nego-
tiations were undertaken for a new contract. Twelve negotiating sessions were held,
beginning on May 7 and ending on October 19, when a representative of the Fed-
eral Mediation and Conciliation Service participated.
The Union's negotiating committee consisted of Jack Tschida, business represent-
ative (a part-time paid employee of Local 1220), who served as chairman; Lester
Smith, president; and Schumacher, financial secretary. T. S. McCulloch served as
negotiating agent for I.C.B. and was accompanied by various representatives of
I.C.B. members at the negotiating sessions.
By October 12, agreement had been reached as to the wage schedule and all
other contract terms, with two exceptions. The unresolved issues were the Union's
demand that the wage schedule be made retroactive to July 1 and the wording of
the contract provision concerning inside or shop production workers. This latter
issue, which apparently concerned only one of the companies, involved the lan-
guage to be used in describing the functions of the employees, agreement having
been reached that there would be provision for such a classification and as to the
wages therefor.
At the negotiating session on October 12, I.C.B. representatives specifically
inquired as to the authority of the Union's negotiators to enter a binding contract if
6 Although Local 1220 voted to merge into Local 188 as of December 31, 1965, Local 188
has not as yet formally accepted the merger and the charter for Local 1220 is still out-
standing. Both locals are here considered as Respondents.
At the hearing, counsel for Respondents stated his contentions as being that (1) no
agreement was reached between Local 1220 and I.C.B., and (2) if an agreement was reached
by Local 1220, its successor, Local 188, was not bound thereby. As part of the first con-
tention, counsel sought to establish that Local 1220's negotiators did not purport to enter
into a binding agreement. Although Respondents' brief is somewhat ambiguous, I read it
as abandoning any contention other than the single position that there is no agreement
because the union membership did not "ratify" the agreement as a whole by referendum
vote after final agreement was reached on all terms by the negotiators. The crucial portion
of Respondents' brief reads : "It is the Respondent's position that no agreement existed
between the charging party and Local 1220 because the Local's negotiating committee had
no authority, actual or apparent, to execute a final agreement without a referendum vote
of the Local's membership. In view of the total absence of evidence to the contrary, this
brief will not consider the further questions whether the negotiating committee
purported to make an agreement and whether Local 188 succeeded to the obligations of
Local 1220. . . .
GLASS WORKERS UNION LOCAL NO. 1220 171
agreement was reached among the negotiators. McCulloch testified that Tschida
stated that the union negotiators had full authority to enter into an agreement pro-
vided any agreement was made retroactive to July 1, on expiration of the prior con-
tract. Ben Bassett and Richard E. Howard, members of I.C.B.'s negotiating commit-
tee corroborated this testimony as to Tschida's representations of his authority at
the meeting of October 12. McCulloch testified that this representation of full
authority on the part of the Union's negotiating committee was repeated in the
course of the meeting on October 19, held with Gese, of the Federal Mediation and
Conciliation Service. According to McCulloch, in a very brief meeting of the two
groups with Gese, before they separated into caucuses, Tschida stated that the union
membership had voted to strike if its demands for retroactivity were not met.
Tschida acknowledged that the question of the authority of the Union's nego-
tiating committee was specifically raised by the employers at the October 12 and/or
19 meetings. He testified that "that particular conversation came up more than once,
I think possibly twice, as to whether or not I had authorization or the committee
had authorization to sign it, and I said no." He further testified that he advised the
employer's negotiators that "everything had to go back to the union for a final vote."
Although Smith, president of Local 1220, had been present at almost all the nego-
tiating sessions, he was unable to corroborate Tschida's testimony that more than
once he had advised the employers' negotiators that the Union's representatives did
not have authority to enter a contract. On examination by Respondents' counsel,
Smith testified as follows:
Q. Now, at any time during the course of the 1965 negotiations was a state-
ment made in your presence by any person and in the presence of the employ,
ers that the negotiating committee did not have full power to act?
A. I could not isolate an instance but I am positive it was said, I know it
was said to Mr. Gese, it was explained to him several times that we could not
sign or we did not have the full power to act, that anything would have to go
back to the membership.
At the meeting with Gese on October 19, I.C.B. offered to make the wage rates
retroactive to July 1 (after expiration of the prior contract) for straight-time hours,
but not for overtime work. Tschida and McCulloch were then to meet for the pur-
pose of drafting mutually satisfactory language for the inside production worker
provision.
The employers' representatives testified that at the end of the meeting on Octo-
ber 19, there was general elation, the negotiators generally expressing great relief
and satisfaction that, after the lengthy negotiations, agreement had finally been
reached.
Tschida denied having expressed any belief at the end of the October 19 meet-
ing that an agreement had or had not been reached. In this connection he testified:
Q. Did you state to anybody at that time that the employers' proposal would
have to be taken back to the union membership?
A. Yes.
Q. To whom did you state this?
A. To the president of our local union.
Q. Did you state this to any of the employer representatives?
A. Not that I recall. I assume that statement was given to the employers by
Mr. Gese.
His testimony made it clear that only the I.C.B. compromise proposal on retro-
activity, if anything, had to be taken back to the membership. He testified:
Q. . as you left that meeting that night what issues were still unresolved?
A. As far as we were concerned we didn't know, because it had to be taken
back. The issue of that meeting was the retroactivity as when and how much
would be paid. As I said, to the Committee I didn't think there were any issues
involved but the issue was the retroactivity and this had to be voted on at the
meeting.
Q. And as far as the production worker definition or description, as I recall
your testimony, you didn't expect any trouble getting together?
A. I didn't expect too much trouble with that, no.
At a special meeting held on October 21, the membership of Local 1220 voted to
accept the employers' compromise offer of October 19 on the retroactivity issue.
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Smith testified that at this point there would not have been "any trouble about sign-
ing" the contract if the inside production worker language was satisfactorily settled.
Smith testified further that at the special meeting of October 21, the membership's
attention was specifically directed to the fact that upon acceptance of the retroac-
tivity proposal "the only thing left to be ironed out was this language" concerning
shop production workers. Prior to the October 21 meeting, the Union's demands
had been discussed in detail at union meetings. Tschida testified that the member-
ship had been kept fully informed of the negotiations as they proceeded.
Thereafter Tschida and McCulloch had a series of oral and written communica-
tions concerning the wording of the inside production worker provision. On Novem-
ber 2, McCulloch submitted, in writing, I.C.B.'s proposed language. On Novem-
ber 17, Tschida countered with proposed wording which, according to his testimony,
"had been read at a special meeting of our local and had been adopted by the local."
After submitting this union-proposed language to the I.C.B. members, McCulloch,
on November 24, forwarded to Tschida a revision of the employers' proposal as to
the language. In a telephone conversation, which Tschida placed some time in
December and McCulloch placed as around a week after November 24, each of the
parties insisted on its own proposed language.
At the Union's regular meeting on December 2, a letter from the International
Union was read suggesting that Local 1220, of Tacoma, consider merging with
Local 188, of Seattle. At that meeting arrangements were made for calling a special
meeting on December 21 for the purpose of voting on the proposed merger. Smith
testified that at the December 2 meeting the membership decided "not to sign any
contract" pending the outcome of the merger vote. He testified further that neither
the I.C.B. nor any of its members was notified of this action either formally or
informally.
On December 21, at a special meeting, the membership of Local 1220 voted to
merge with Local 188, the merger to be effective December 31. Tschida testified
that it was there decided that Local 1220's negotiators should not take any further
action, but should refer all matters to Local 188's officers.
The record is not clear as to whether or when the membership of Local 188 voted
in favor of the merger. All funds, records, etc., of Local 1220 have been turned
over to Local 188. However, M. L. Dickover, business manager and financial secre-
tary of Local 188, testified that, as of the time of the hearing, examination of Local
1220's records was still in progress and Local 188 had not as yet formally signified
its acceptance. The charter of Local 1220 was still in Local 188's office, although
"in the normal course of business" it would be returned to the International Union.8
On December 20, the day before the Local 1220 meeting at which the merger was
approved, the members of the I.C.B. held a meeting. It was there decided that the
employers would accept the Union's proposed language on the inside production
worker provision, the only outstanding unresolved issue between the parties.
On December 22, Tschida telephoned McCulloch's office and spoke to McCul-
loch's secretary, who advised him that she had a letter prepared ready to be mailed
to him. She proceeded to read it to him, in pertinent part as follows:
So that the financial records of the glass companies can be cleared up before
the end of the year, they have incorporated your proposed wording pertain-
ing to production workers into the new agreement, 3 copies of which are
enclosed. As agreed upon in our last conciliation meeting the changes in addi-
tion to the production worker definition and wage scale are:
Please sign and return one (1) copy of the Agreement promptly so that the
retroactive increase can be paid before the end of the year.
After the letter had been read on the telephone, Tschida told McCulloch' s secre-
tary to tell McCulloch that he "was a little too late." The letter was then mailed
and was received by Tschida on December 23.
8In answer to my question fairly early in the hearing, Respondents' counsel stated that
he did not intend to present any evidence concerning the terms of the merger. Whatever
evidence there is in the record, including Dickover's testimony that "as a result of the
merger Local 188 has assumed and accepted the bargaining rights that Local 1220 had,"
was elicited by the General Counsel.
GLASS WORKERS UNION LOCAL NO. 1220 173
Under date of December 24, Local 1220, over the signature of Smith and Chris-
tiansen, president and financial secretary, wrote McCulloch as follows:
This is to advise you that on Tuesday, December 21st, 1965, the member-
ship of this local union voted to merge with Local Union No. 188 of Seattle,
Washington, and to assign to that local union, all of the collective bargaining
rights of this local union. The merger is effective as of December 31, 1965.
M. L. Dickover is Business Manager and Financial Secretary and
William A. Whitten, Jr. is Business Representative.
Mr. Dickover and Mr. Whitten will be contacting you after the first of the
year to discuss negotiations.
McCulloch received this letter on December 29.
This letter of December 24, received on December 29, was the first notice the
employers received of the impending merger. Smith so testified. Tschida made it
clear that he had not informed the employers. When asked what had prompted his
statement on December 22 to McCulloch's secretary that the employers were "a
little bit too late," he testified:
A. Well, just to the fact that there had been a long wait and had heard
nothing from them. She informed me that the employers met on December 20,
which was on a Wednesday afternoon. I called her on the 22nd and the local
had the special meeting to merge with Local 188 on Tuesday the 21st. I
merely meant it was a little too late because there had been a period of some
three weeks where we had not heard anything and this was the first indication
that I had had, on this telephone call to the secretary, that I had had that the
employers had met and decided to accept our language.
Respondents' counsel attempted to establish that the employers, or at least a
representative of one of them, knew of the impending merger in advance. I believe
that such fact, even if established, would be immaterial. In any event, the fact was
not established. The only evidence to this effect that Respondents' counsel was able
to elicit was Smith's testimony that on or about December 17, 1965, K. W. Makin,
manager of Tacoma Glass Company and one of I.C.B.'s negotiators, had said to
Smith "Merely that he [Makin] had heard that we [the Union] were going to be
merged." Makin had testified that he did not "have any information from any
source whatsoever prior to December 21, 1965, that a merger of the Tacoma and
Seattle Glass Workers was in progress." Since Local 1220 did not vote for the
merger until December 21, Makin could not have had any definite knowledge on
December 17.
McCulloch testified that his first inkling of a possible merger was when Tschida
"advised me to the effect that I would not be negotiating with him again." Although
Tschida had not explained his statement, McCulloch thought it was probably based
on a union merger, "because the International had proposed a merger prior to the
preceding negotiations two years ago." McCulloch dated this conversation as after
December 21 and before December 29. He stated that no inkling of a possible
merger played any part in the employers' decision of December 20 to accept the
Union's proposed wording of the inside production worker provision.9
On January 3, 1966, McCulloch wrote to Tschida. In his letter, after referring
to his previous letter of December 22, McCulloch concluded as follows:
As our negotiations were concluded and as the contract as drawn, copy
enclosed, is the complete agreement between the parties, we request that it
be signed and copy returned. I would, however, appreciate your advice as to
whether you or Mr. Dickover of Local 188 now has the proper authority to
sign the agreement in behalf of the employees.
There was no reply to this letter. However, sometime in January, at the request
of a representative of the Federal Mediation and Conciliation Service, McCulloch
met twice with representatives of Local 188, but the meetings were not negotiating
sessions. Thereafter, on January 28, 1966, McCulloch wrote to Dickover again
requesting that the contract be signed. On February 3, 1966, the contract was sub-
mitted to and unanimously rejected by the membership of Local 188. Under date
6 There is no evidentiary support for the statement in Respondents' brief that "the em-
ployers did not communicate their assent to the production workers' provision until after"
they had been notified of the Union's vote to merge with Local 188.
174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of February 4, 1966, Dickover wrote McCulloch , stating that "There is no record
of any `agreement' having been reached between Local 1220 and the Industrial
Conference Board." 10 In the final paragraph of his letter , Dickover said: "We
desire to meet with you for the purpose of serious negotiations looking toward an
agreement which will be ratified by the membership ." In testifying at the hearing,
Dickover was evasive and noncommittal as to his present intentions , testifying as
follows:
Q. . . . Since the Seattle, Tacoma contingent of 188 has voted unanimously
against accepting the Industrial Conference Board's proposed contract, is it
your intention to resume negotiations and start from scratch?
A. I most generally cross my bridges when I get to them . I will wait until
the outcome of this hearing.
Q. (By Mr . RAMSDELL [counsel for I.C.B.].) You haven't prepared any
demands?
A. No.
Q. Are you willing to propose a wage agreement?
A. I will not answer that.
On February 10, 1966, McCulloch wrote to Dickover , repeating the employers'
opinion that the parties had reached a complete contract , and adding:
As there appears to be no alternative , the employers are putting the pro-
visions of the agreement into effect and are taking such legal action as is
necessary to secure a signed copy of that agreement.
The terms of the contract , including a 13-cent wage increase and increased medical
benefits, have been put into effect and the Union has registered no complaint.
B. Discussion and conclusions
On undisputed facts, it is clear that the negotiating agents for the parties had
reached agreement on all terms of a collective -bargaining agreement by Decem-
ber 22, 1965 . All those terms and provisions had been approved both by the mem-
bers of I.C.B. and by the membership of Local 1220, the authorized bargaining
agent for the employees . Upon McCulloch 's secretary 's advising Tschida that the
employers accepted the Union 's language on the production worker provision, the
contract became final and binding . The Union had taken absolutely no steps to
withdraw its outstanding offer to accept and execute a contract if the employers
agreed to the Union 's proposed language concerning inside production workers.
Thus, under the most elementary principles of contract law, a contract came into
existence upon the employers ' acceptance."
By now it has become a truism that a collective -bargaining agreement is not
rendered invalid or ineffective by being oral . Having reached agreement orally, the
parties are legally bound to reduce it to writing and sign it. See Los Angeles Mail-
ers' Union No. 9, 155 NLRB 684. F . W. Means & Co ., 157 NLRB 1434, 1437,
15 Referring to the special membership meeting of Local 1220 held in October , Dickover
said: "Various members commented on [the proposed contract ]. Some indicated that they,
personally , thought the wage items might be satisfactory but that there were other items
that required further negotiations . After listening to the members express themselves, the
Local 1220 business representative told the members he would continue to negotiate. At
no time during this meeting was a vote taken on the employer proposal ." He did not pro-
duce any minutes of that meeting , or otherwise indicate the source of his information.
Dickover had never been a member , officer, or employee of Local 1220 , and, so far as the
record discloses , had never had any contract with that local before the merger . Tschida
and Smith both testified that at the special meeting in October the membership had ap-
proved I .C.B.'s compromise proposal on the retroactivity issue and that all other terms
had previously been approved by the membership.
U The result would be no different , if Respondents had shown ( which they failed to
establish ; see supra, p. 173) that the employers had foreknowledge of the merger and
that such knowledge motivated their capitulation on the inside production worker clause.
Whatever their motivation , they accepted the offer before it was withdrawn . I would find
nothing reprehensible in the employers ' rushing to accept the offer to avoid having to
negotiate further with the risk of possibly ending up with less favorable terms than Local
1220 had agreed to.
GLASS WORKERS UNION LOCAL NO. 1220 175
and cases cited. Cf. Retail Department Store Employees v. Sears Roebuck & Co.,
47 LRRM 2354, 2355 (D. C. Wash.).
The heading of the first portion of the agreement in Respondents' brief reads
as follows:
The proposed agreement was not accepted by the members in accordance with
the established and uniformly followed constitutional procedure.
Counsel there argues that the International Union's constitution provides that
"locally negotiated agreements may be accepted only on a referendum vote of the
local union"; that there is no evidence that the present agreement "was accepted
in this manner"; and that "without exception" Local 1220 had followed the Inter-
national's constitutional provision by having a contract "first submitted in its
entirety for a referendum vote of the membership of the local" before it was signed.
Respondents' argument is totally without merit. The fact is that the entire con-
tract-all its provisions-had been accepted by the membership of Local 1220. The
only hurdle to a contract after the Union's meeting on October 21 was the employ-
ers' refusal to accept the inside production worker language which the union mem-
bership had already approved, along with all other provisions. Even if we were to
assume that the record supported counsel's contention that in the past entire con-
tracts had always been submitted to the membership after the negotiators had
reached agreement,12 such procedure would have been meaningless and unnecessary
in the present case, where membership approval had already been secured. Cf.
N.L.R.B. v. Huttig Sash and Door Company, 362 F. 2d 217 (C.A. 4), footnote 1.
Paraphrasing another Trial Examiner, in a decision adopted by the Board, "I
can only conclude that the [membership] had already approved the agreement,
whether or not it had approved it `as a document."' Los Angeles Mailers' Union
No. 9, supra, 155 NLRB at 691.
Except for Dickover's unsupported, hearsay statement in his letter of February 4,
1966 (supra, footnote 10),13 which was not repeated or adopted at the hearing,
there is not the slightest suggestion that the refusal of Local 1220's negotiating com-
mittee to sign the contract was due to any membership dissatisfaction with the
terms of the agreement. Smith, who had been a member of Local 1220 since 1947
and an officer and negotiator since 1950, testified that the union membership had
never rejected a contract which had been submitted to it by a negotiating com-
mittee. As to the particular contract in question, he testified as follows:
Q. . . after this special meeting [of October 21] did you know whether
Mr. Tschida had authority to sign an agreement if this problem of shop and
production work were, or this language on shop and production work were
drawn to his satisfaction?
A. Well, I don't think that the question had really arisen, whether we sign
or not. The money package was okayed and it left the allied production work-
ers section up in the air and if it would have been to our satisfaction I don't
believe there had been any trouble about the signing of it. .. .
12 Despite the liberal use of leading questions, particularly of Tschida, Respondents'
counsel never did elicit any clear and unambiguous testimony of a uniform practice in Local
1220 to have agreements ratified as a whole by the membership after they had been
negotiated. The closest lie came was the following in his examination of Tschida :
Q. As a matter of fact, so far as you know, it has been the uniform practice in the
local to always present a full and complete agreement to the membership before it was
signed ?
A. This is my understanding. I can't say what transpired before December 1, 1959,
but it has always been my personal way of doing things, to see that the members are
fully informed, and this is the only way I operate.
0. At least since you were the business agent, during that period of time, in each
instance that negotiations were finally concluded and the full and complete agreement
was always taken back to the membership for a vote?
A. Yes, and it was always that it had to be signed by myself and the president and
recording secretary, and they were present at the meetings.
Q. But this signing would take place only after the membership had voted on the
full contract?
A. Yes, sir.
13 The letter did not purport to specify the nature of any dissatisfaction with the contract
on the part of the membership of either Local 1220 or Local 188.
176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The subsequent refusal to sign the agreement , thus, "was unrelated to any dis-
satisfaction with the contract terms themselves but was based upon the unilateral
decision to approve no agreement with the [I.C.B.] until" the union merger. The
refusal to sign, therefore, was violative of Section 8(b)(3). The Standard Oil Co.,
137 NLRB 690, 691, enfd. 322 F.2d 40 (C.A. 6). As said in Los Angeles Mailers'
Union No. 9, supra, 155 NLRB at 690:
After this indication of satisfaction with the terms of the agreement, the mem-
bership of the Respondent would, indeed , have had to show some serious
reason for not accepting the recommendation of the Respondent 's negotiating
committee if it was to contend that it was acting in good faith , because its
dissatisfaction would have to relate to the terms of the contract itself rather
than to the composition of the bargaining unit or to some other collateral
matter. . . .14
I conclude that, even if it had been shown that , as an intraunion matter, mem-
bership ratification of the contract as a whole was required, such ratification would
have been a mere formality 15 in the absence of the improper unilateral decision
not to execute any contract. Thus, the absence of such ratification would not be
fatal to the existence of the contract.
In any event , the evidence does not establish that membership ratification of the
contract as a whole was required.
The possible existence of any relevant provision in the Union's constitution or
bylaws was raised by me, after Respondents' counsel had examined both Tschida
and Smith without mentioning bylaws or constitution . When the question was raised,
Smith, president of Local 1220, testified as follows:
TRIAL EXAMINER: Is there anything in [the bylaws or constitution] about
negotiating committees' power?
THE WITNESS: I can't really answer that except with the exception to say
that prior to contract negotiations we always had our meetings and the nego-
tiating committee was elected and if they was-when they would get the nego-
tiating committee and elect them or appoint them, whichever the case would
be, they would either give you full power to act prior to these years that we
are speaking of or then they would not give you full power to act, which is
the case in the last two negotiations.
TRIAL EXAMINER: Was that provided for in the bylaws?
THE WITNESS : I don 't know whether it is or not , but this has been the
practice and the way we have done things.16
Counsel for Respondents then stated that the bylaws were "not available in the
hearing room" but that he had "sent someone to get a copy . . . and when we
14 The present case differs from Warrior Constructors, Inc. V. Operating Engineers,
Local 926, 62 LRRDI 2313 (D.C. Ga.), on which Respondents rely. In that case no formal
vote was taken because the union's representatives deemed the contract unacceptable and
would not recommend it (p. 2317) and the employer was unequivocally put on notice of
the strictly limited authority of the union's negotiators (p. 2318). Here there was no
intimation of disapproval by the negotiators and the employers were not put on notice of
any limitation on the authority of the union negotiators, at least after the retroactivity
issue was resolved. Cf. N.L.R.B. v. Acme Mattress Co., 192 F.2d 524, 527-528 (C.A. 7). In
any event, the court in Warrior recognized that its decision was probably contrary to what
the Board would have decided.
15 That it could have been had quickly is demonstrated by the fact that the retroactivity
proposal made by I.C.B. on October 19 was approved at a special meeting of Local 1220 on
October 21.
11 In view of Smith's ignorance of the provisions of the Union's constitution and bylaws, I
find it remarkable that Respondents' counsel would argue, as lie does in his brief, that:
"Mr. McCulloch testified to having bargained with Local 1220 for a number of years. It
would not be unreasonable to hold him to some notice of the Brotherhood's constitutional
procedure for execution of agreements." Cf. Sheet Metal Workers Union, Local No. 65, 120
NLRB 1678, 1679; KLM Royal Dutch A irlines v . Transport Workers, 56 LRRM 2205, 2208
(D.C.N.Y.) : "The limitation on such apparent authority imposed by the Union by way of
the Local ' s charter provision , or Instruction . . . or otherwise, unless communicated to
the Employer, cannot restrict such authority." See N.L.R.B. v. Acme Mattress Co., supra
at 527-528 ; McLeod v. Local 27, Paper Products & Miscellaneous Chauffeurs, Warehouse-
men & Helpers, IBT [Star Corrugated Box Co.], 212 F. Supp. 57 (D.C.N.Y.).
GLASS WORKERS UNION LOCAL NO. 1220 177
receive them we will put them in evidence." His present reliance on the constitu-
tion and bylaws thus appears clearly a legal afterthought.
Smith testified that up to and including the Union's negotiations in 1961, the
negotiating committee "had always had what we call full power to act." Tschida
also testified that in 1961 the Union's negotiating committee had been given "full
and final authority to act. That is it, we could call a strike if we so deemed or we
could sign the agreement providing that the basic demands which we had asked for
were presented to us." Both Tschida and Smith testified that since 1961 the nego-
tiating committees had not been given "full power to act" because of some mem-
bership dissatisfaction because the committee had exercised its power in 1961 to
call a strike without membership vote.17 Tschida testified that, despite the commit-
tee's having full power to act in 1961, it had actually submitted the contract to the
membership for approval "because we had full and final authority to call a strike,
also, which we did, and naturally with some individuals this causes quite a strain,
and so on and so forth." The testimony of Tschida and Smith indicates that in
both 1963 and 1965 specific action was taken by the membership to limit the
authority of the Union's negotiating committees, indicating that the membership
may still grant its negotiating committees the authority to execute contracts with-
out specific membership approval of their precise terms.18 The evidence of Local
1220's agents is thus "inconsistent with the Union's belated resurrection and reliance
on the long dormant provision of its constitution." N.L.R.B. v. Brotherhood of
Painters, Decorators & Paperhangers [Associated Bldg. Contractors of Evansville,
Inc.] 334 F.2d 729, 731 (C.A. 7).
Finally, the provision of the International's constitution on which Respondents
rely in their brief is ambiguous and does not on its face support their present argu-
ment. That provision reads:
where there are no district councils, local unions shall negotiate and
ratify working agreements setting forth both wages and working conditions.
Where the working agreements are negotiated by the . local union the
same shall be decided upon by referendum vote of the membership of the local
unions of the same craft. In every case the referendum vote shall be by a secret
ballot conducted in the regular manner at a special meeting called for that
purpose. All such working agreements shall be subject to the approval of the
general executive board.
I do not view this provision as self-explanatory, and Respondents have provided
no testimony in clarification. A "working agreement" can certainly be "decided
upon" in the form of the demands which the negotiators are to present. It is not
clear what is intended by the requirement of a vote of the membership "of the
local unions of the same craft." 19 Dickover, who had served in various capacities
for Glassworkers locals for 22 years, was not asked to explain the provision. And
Tschida and Smith were apparently unaware even of its existence. In the present
case, all the terms of the contract were approved by the membership. Such approval
would appear to satisfy the purposes of Section 12(b) of the International constitu-
tion as I read that provision. In sum, it wad not shown that either custom or any
provision of the International constitution required a referendum vote of approval
by the membership before its negotiating committee could sign a written contract
embodying the terms agreed upon between the two groups of negotiators and
previously approved by the membership of Local 1220.20
17 In May 1961 the International Union's general executive board approved the follow-
ing provision in Local 1220's bylaws : "The local union acknowledges that the constitu-
tion of the brotherhood supersedes any provision of these bylaws which are inconsistent
with such constitution." It does not appear whether this bylaw was adopted before or
after the 1961 negotiations with I.C.B.
18 It appears that in October 1966 the union membership voted to strike if its demand
for retroactivity was not met.
19 Significantly, Respondents make no claim that approval of the general executive board
was a condition precedent to a contract, although the constitution apparently requires such
approval.
11 "The Act imposes no obligation upon a bargaining agent to obtain employee ratifica-
tion of a contract it negotiates in their behalf." North Country Motors, Ltd , 146 NLRB
671, 674; Section 2(13) of the Act. Cf. Cleveland Orchestra Committee v. Cleveland Fed-
eration of Musicians, Local No. 4, 303 F.2d 229, 232-233 (C.A. 6).
264-047-67-vol. 162-13
178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Because the union membership actually approved the retroactivity compromise
and the inside production worker language finally accepted by the employers, it is
unnecessary to determine whether the Union's negotiating committee had author-
ity, actual or apparent, to enter a binding contract without membership approval or
"ratification" of either of these provisions.21 I find only that when the employers
accepted the inside production worker language approved by the union member-
ship, the Union was obligated, through its agents, to sign a contract embodying the
complete agreement 22
Additionally, even if there had been some existing barrier to a complete con-
tract prior to December 31, when Local 188 took over, I would rule that the Union
and the employees whom it represents were estopped to deny the existence of the
contract. The estoppel would arise from the Union's silence when informed that the
employers were going to put the contract into effect and the employees' acceptance
of the increased benefits provided thereby. Having elected to accept the benefits, the
Union and the employees cannot disavow the contract, particularly since the employ-
ers have changed their position in reliance thereon. Cf. Capitol Airways, Inc. v.
Air Line Pilots Assn., 223 F. Supp. 168, 171 (D.C. Tenn); Nelson v. Victory Elec-
tric Works, 227 F. Supp. 404 (D.C. Md.).
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section II, above, occurring in con-
nection with operations of the employer-members of the Industrial Conference
Board, described in section I, above, have a close, intimate, and substantial relation
to trade, traffic, and commerce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free flow thereof.
N. THE REMEDY
It is obvious that the appropriate basic remedy in this case is a requirement that
the employees' collective-bargaining representative sign the written contract pre-
pared by I.C.B., embodying the terms of the agreement reached on December 22,
1965. In general , the order will follow the pattern adopted in Los Angeles Mailers'
Union No. 9, supra, 155 NLRB 684, a case closely analogous to the present.
In their pleadings and at the hearing, all parties 23 agreed that Local 188 is the
successor of Local 1220, the employees' authorized agent which negotiated and
reached agreement with the employers' representative. On the undisputed facts, it
would appear that Local 188 is properly to be considered a "successor" (National
Carbon Company, 116 NLRB 488, affd. 224 F.2d 672 (C.A. 6) )24 and thus heir to
the contract , with its attendant rights and obligations. However, as previously set
forth, it appears that the merger of the two Unions, though a practical reality, may
not as yet have been legally consummated. For that reason, I am recommending
that the order be directed against both Unions.
21 If such determination were necessary, I would find, crediting the testimony of McCul-
loch, Bassett, and Howard that the negotiators, Including the Union's representatives, be-
lieved that no approval of the union membership was necessary after the negotiating
session of October 19. Respondents' brief apparently concedes this fact. I would find that
on and after October 12 the Union's negotiating committee had at least apparent authority
to enter a final, binding contract so long as there was a satisfactory provision
for retroactivity.
121 reject I.C.B.'s contention that an agreement was reached on October 19. Although
the negotiators then believed that resolution of the inside production worker language
would not cause much difficulty, the lack of agreement was sufficient to prevent a complete
final contract.
23 Paragraph 11 of the complaint alleged that Local 188 was the "successor" of Local
1220 and the employees' exclusive bargaining agent since December 31, 1965. The answer
admitted that Local 188 was the bargaining agent but denied the other allegations of the
paragraph. However, it is only as a "successor" of Local 1220 that Local 188 could be
deemed the authorized collective-bargaining agent. As noted above (footnote 7), Respond-
ent's counsel has abandoned his contention that Local 188 is not bound by any contract
which might have been made by Local 1220.
26 Since the merger was approved by the membership of Local 1220, and the collective-
bargaining agreement contains a union-security provision, there is no need to give special
consideration to the possible wishes of nonunion employees.
GLASS WORKERS UNION LOCAL NO. 1220 179
CONCLUSIONS OF LAW
1. The Employers are engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Employers are employers within the meaning of Section 2(2) of the Act.
3. The Respondents are labor organizations within the meaning of Section 2(5)
of the Act.
4. All journeymen glassworkers and apprentice glassworkers engaged in handling,
cutting, beveling , drilling, and setting glass , including installing metal , wood, or plas-
tic members in store fronts, metal doors, and frames, who are employed by B & B
Glass Company, 748 Market Street, Tacoma, Washington; Glass Sales and Service,
Inc., 3131 South Lawrence, Tacoma, Washington; Milgard Glass Company, 3109
South Tacoma Way, Tacoma, Washington; and Tacoma Glass Company, 1526 Com-
merce Street, Tacoma, Washington, excluding office clerical employees, professional
employees, guards, and supervisors, as defined in the Act, constitute a unit appro-
priate for the purpose of collective bargaining within the meaning of Section 9(b)
of the Act.
5. At all times material hereto, and continuing to date, Respondent Local No.
1220 or Respondent Local No. 188 has been, within the meaning of Section 9(a)
of the Act, the exclusive bargaining representative of all the employees in the
appropriate unit described in paragraph 4, above, with respect to rates of pay,
wages, hours of employment, and other terms and conditions of employment.
6. By failing and refusing after December 22, 1965, to fulfill their obligation to
sign a written memorial of the agreement reached in negotiations with Industrial
Conference Board on behalf of the employers listed in paragraph 4, above, Respond-
ents have engaged in, and are still engaging in, unfair labor practices within the
meaning of Section 8(b)(3) of the Act.
7. The unfair labor practices hereinabove found are unfair labor practices affect-
ing commerce within the meaning of Section 2(6) and (7) 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 Respondents, Glass Workers
Union Local No. 1220, affiliated with Brotherhood of Painters, Decorators and
Paper Hangers of America, AFL-CIO; and United Glass Workers Local No. 188,
affiliated with Brotherhood of Painters, Decorators and Paper Hangers of America,
AFL-CIO, their officers, agents, and representatives, shall:
1. Cease and desist from refusing upon request of Industrial Conference Board
to execute a written memorial of Respondents' agreement with said Industrial Con-
ference Board on December 22, 1965, as described herein;
2. Take the following affirmative action, which I find will effectuate the policies
of the Act:
(a) If requested to do so by the Industrial Conference Board, forthwith sign and
deliver to the Industrial Conference Board an original copy of the agreement which
was sent by the Industrial Conference Board to Respondent Local 1220 under date
of December 22, 1965.
(b) Post at Respondents' offices and meeting places copies of the attached notice
marked "Appendix." 25 Copies of said notice, to be furnished by the Regional Direc-
tor for Region 19 of the National Labor Relations Board, after having been first
duly signed by Respondents' authorized representatives, shall be posted by Respond-
ents immediately upon receipt thereof and be maintained by Respondents for 60
consecutive days thereafter, in conspicuous places, where notices to their members
are customarily posted. In the event that notices to members are customarily given
through the medium of union publications, said notice shall be published in such
publications in like manner. Reasonable steps shall be taken by Respondent to
insure that said notices posted as required herein are not altered, defaced, or covered
by any other material.
2e In the event that 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. In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Mail to the said Regional Director a sufficient number of copies of said
signed notice to enable the employers , if they so desire, to post them at their places
of business where notices to employees are customarily posted.
(d) Notify the said Regional Director in writing within 20 days regarding the
steps that have been taken to comply herewith 26
2U In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read : "Notify the Regional Director for Region 19, in writing, within
10 days from the date of this Order, what steps the Respondent has taken to comply
herewith."
APPENDIX
NOTICE TO ALL MEMBERS OF GLASS WORKERS UNION LOCAL No. 1220 AND UNITED
GLASS WORKERS LOCAL No. 188 AFFILIATED WITH BROTHERHOOD OF PAINTERS,
DECORATORS AND PAPER HANGERS OF AMERICA, AFL-CIO
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 you that:
WE WILL, if requested to do so by Industrial Conference Board , sign and
execute the agreement reached on December 22, 1965, by and between said
Industrial Conference Board and Local No. 1220 with respect to rates of pay,
wages, hours of employment, and other terms and conditions of employment
for the following unit:
All journeymen glassworkers and apprentice glassworkers engaged in
handling, cutting , beveling, drilling, and setting glass , including installing
metal, wood, or plastic members in store fronts, metal doors , and frames,
who are employed by B & B Glass Company, Glass Sales and Service,
Inc., Milgard Glass Company, and Tacoma Glass Company, all located
in Tacoma, Washington.
GLASS WORKERS UNION LOCAL No. 1220 AFFILIATED
WITH BROTHERHOOD OF PAINTERS, DECORATORS AND
PAPER HANGERS OF AMERICA , AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
UNITED GLASS WORKERS LOCAL No. 188 AFFILIATED
WITH BROTHERHOOD OF PAINTERS , DECORATORS AND
PAPER HANGERS OF AMERICA, AFL-CIO,
Labor Organization.
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.
If members have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 327
Logan Building, 500 Union Street, Seattle, Washington 98101 , Telephone 583-4532.
Nassau and Suffolk Building Construction Trades Council, AFL-
CIO; Local 138 , International Union of Operating Engineers,
AFL-CIO; Local 1205 , International Brotherhood of Team-
sters, Chauffeurs , Warehousemen and Helpers of America and
Theresa Garden Apartments, Inc.; Saxon Arms Construction
Corp . Cases 29-CC-38, 38-2, 29-CP-22, and 22-2. December 16,
1966
DECISION AND ORDER
On June 6, 1966, Trial Examiner Thomas A. Ricci issued his Deci-
sion in the above-entitled proceeding , finding that the Respondent
162 NLRB No. 13.